EXHIBIT 10.19
LEASE
AGREEMENT
This Lease,
made this 1st
day of
December
, 2006 between CROSSROADS ASSOCIATES AND
CLOCKTOWER
ASSOCIATES
, hereinafter called Landlord, and
AVISTAR COMMUNICATIONS CORPORATION, a
Delaware Corporation, hereinafter called Tenant.
WITNESSETH:
Landlord hereby
leases to Tenant and Tenant hereby hires and takes from Landlord
those certain premises (the “Premises”) outlined in red
on Exhibit “A-1 and A-2”, attached hereto and
incorporated herein by this reference thereto more particularly
described as follows:
Approximately
21,711 square feet of rentable space (which includes Tenant’s
prorata share of building common areas) located on the tenth entire
(10 th ) floor (approximately
17,702 square feet) and a portion of the first (1
st
) floor
(approximately 4,009 square feet) of the “Building”
located at 1875 South Grant Street, San Mateo, San Mateo County,
California. Tenant’s Suite Numbers in the Building on
the tenth (10 th ) and first (1
st
) floors shall
be 1000 and 130 respectively.
As used herein
the Complex shall mean and include all of the land outlined in red
and described in Exhibit “B”, attached hereto, and all
of the buildings, improvements, fixtures and equipment now or
hereafter situated on said land.
Said letting
and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material
part of the consideration for this Lease to perform and observe
each and all of said terms, covenants and conditions. This
Lease is made upon the conditions of such performance and
observance.
1.
Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the
purpose of
General
Office, Storage, Distribution, Marketing and other legally
related
uses
and for no other purpose. Tenant shall not do or permit to be
done in or about the Premises or the Complex nor bring or keep or
permit to be brought or kept in or about the Premises or the
Complex anything which is prohibited by or will in any way increase
the existing rate of (or otherwise affect) fire or any insurance
covering the Complex or any part thereof, or any of its contents,
or will cause a cancellation of any insurance covering the Complex
or any part thereof, or any of its contents. Tenant shall not
do or permit to be done anything in, on or about the
Premises or the Complex
which will in any way unreasonably obstruct or interfere with the
rights of other tenants or occupants of the Complex or injure or
unreasonably annoy them, or use or allow the Premises to be used
for any improper, immoral, unlawful or unreasonably objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises or the Complex. No sale by
auction shall be permitted on the Premises. Tenant shall not
place any loads upon the floors, walls, or ceiling, which endanger
the structure, or place any harmful fluids or other materials in
the drainage system of the building, or overload existing
electrical or other mechanical systems. No waste materials or
refuse shall be dumped upon or permitted to remain upon any part of
the Premises or outside of the building in which the Premises are a
part, except in trash containers placed inside exterior enclosures
designated by Landlord for that purpose or inside of the building
proper where designated by Landlord. No materials, supplies,
equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or
permitted to remain outside the Premises or on any portion of
common area of the Complex. No loudspeaker or other device,
system or apparatus which can be heard outside the Premises shall
be used in or at the Premises without the prior written consent of
Landlord. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises. Tenant shall indemnify,
defend and hold Landlord harmless against any loss, expense,
damage, attorney’s fees, or liability arising out of failure
of Tenant to comply with any applicable law applicable to the use
of the Premises by Tenant. Tenant shall comply with any
covenant, condition, or restriction
(“CC&R’s”) affecting Tenant’s
activities within the Premises. The provisions of this
paragraph are for the benefit of Landlord only and shall not be
construed to be for the benefit of any tenant or occupant of the
Complex.
2
2.
TERM
A.
The term of
this Lease shall be for a period of
Sixty (60) months
(unless sooner terminated as hereinafter provided) and, subject to
Paragraph 2(B) and shall commence on the
1st day of
April
, 2007 and end on the
31st day of
March , 2012.
B.
Possession of
the Premises shall be tendered and the term of this Lease shall
commence on April 1, 2007. Commencing upon the full execution of this Lease
Agreement, Tenant shall have
access to the Premises prior to April 1, 2007 for the installation
of furniture, telephone and computer related equipment and such
access shall be subject
to all the terms and conditions of the Lease, excluding the payment
of Basic Rent and Additional Rent. It is hereby
understood and agreed that Tenant’s activities during this
Early Access Period shall not interfere with or delay
Landlord’s construction of the improvements described in
Paragraph 8 below. In the
event Tenant Improvements, as described below in Paragraph 8
herein, are substantially completed prior to April 1, 2007,
Tenant is herein granted the
right to occupy the Premises during the Early Access Period with
operating personnel subject to all the terms and conditions of the
Lease. During this early occupancy with operating personnel,
Tenant will only be responsible for the payment of Additional Rent
prior to April 1, 2007. In the event Tenant occupies the Premises
early, as provided for herein, nevertheless the commencement date
of the Lease shall remain April 1, 2007 .
C.
OPTION TO
EXTEND
Provided Tenant is in occupancy of
at least eighty (80%) percent of the Premises and not in default on
any of the terms, covenants or conditions of this Lease, and
subject to the terms and conditions set forth hereafter, Tenant is
granted the option to extend the term of Lease on the Premises to
March 31, 2017 on the following terms and conditions:
(a)
On or before October 1, 2011, Tenant
shall notify Landlord in writing of Tenant’s exercise of this
option to extend the term of the Lease to March 31,
2017.
(b)
The extended term of the Lease shall
commence on April 1, 2012 and shall terminate on March 31,
2017.
(c)
The Basic
Rent, as of the commencement date of the Extended Term of the
Lease, shall be the then prevailing market rate for similar Class A
office space in San Mateo and Foster City with annual adjustments
at the rate of increase then being charged in the market for
similar space.
3
(d)
The then current payment for
Additional Rent described in Paragraph 4D of the Lease shall
continue to be paid and adjusted according to Paragraph 4D of this
Lease.
(e)
This option to
extend can be exercised only by Avistar Communications
Corporation, a Delaware Corporation, a parent, subsidiary or
an affiliate, for its sole use of the Premises and may not be
transferred or assigned to any sublessee or other party, nor may
this option be exercised by Avistar Communications
Corporation, a Delaware Corporation, for the use of the
Premises by any sublessee or party other than Avistar
Communications Corporation, a Delaware Corporation, occupying
the Premises as of the commencement date of any extended
Term.
3.
POSSESSION If Landlord, for any reason whatsoever (other
than Landlord’s breach of this Lease), cannot deliver
possession of said Premises to Tenant at the scheduled commencement
of said term, as hereinbefore specified, this Lease shall not be
void or voidable; nor obligation of Tenant shall be affected
thereby; nor shall Landlord or Landlord’s agents be liable to
Tenant for any loss or damage resulting therefrom; but in that
event the commencement and termination dates of the Lease, and all
other dates affected thereby (including rent adjustment dates)
shall be revised to conform to the date of Landlord’s
delivery of possession in the condition described in Paragraph 8,
as specified in Paragraph 2 (b), above. The above, is,
however, subject to the provision that the period of delay of
delivery of the Premises shall not exceed 15 days from the
scheduled commencement date herein (except those delays caused by
Acts of God, strikes, war, utilities, governmental bodies, weather,
unavailable materials, and delays beyond Landlord’s control
shall be excluded in calculating such period) in which instance
Tenant, at its option, may, by written notice to Landlord,
terminate this Lease whereupon any monies previously paid by Tenant
to Landlord shall be reimbursed to Tenant upon demand. In
addition, for each day that the date the Premises are Ready For
Occupancy is delayed beyond April 1, 2007 for any reason (including
force majeure events), the date the Tenant is otherwise obliged to
commence payment of Basic Monthly Rent shall be delayed by one day
for each day of such delay .
4.
RENT
A.
Basic Rent . Tenant agrees to pay to Landlord at such
place as Landlord may designate without deduction, offset, prior
notice, or demand on the first (1 st ) day of each calendar
month of the term of this Lease, and Landlord agrees to accept as
Basic Rent for the leased Premises the total sum of _ Two
Million Two Hundred Seventy One Thousand Two Hundred Twenty and
20/100 _____Dollars ($2,271,220.20) in lawful money of the
United States of America, payable as follows::
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$34,620.45
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shall be due and payable upon execution of this
Lease and represents payment of the Basic Rent for the first month
of the lease term from April 1, 2007 through April 30,
2007.
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4
The following
amounts shall be due and payable on or before the first day of each
month of the lease term thereafter as indicated for the time
periods described:
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Basic Rent - Suite
1000
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Basic Rent - Suite
130
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Total Basic Rent
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17,702 RSF
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4,009 RSF
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21,711 RSF
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4/1/07 to
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$29,208.30
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$5,412.15
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$34,620.45
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3/31/08
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@ $1.65 NNN
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@ $1.35 NNN
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4/1/08 to
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$30,624.46
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$5,612.60
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$36,237.06
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3/31/09
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@ $1.73 NNN
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@ $1.40 NNN
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4/1/09 to
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$32,040.62
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$5,813.05
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$37,853.67
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3/31/2010
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@ $1.81 NNN
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@ $1.45 NNN
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4/1/2010to
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$33,456.78
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$6,013.50
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$39,470.28
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3/31/2011
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@ $1.89NNN
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@ $1.50 NNN
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4/1/2011to
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$34,872.94
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$6,213.95
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$41,086.89
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3/31/2012
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@ $1.97 NNN
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@ $1.55 NNN
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B.
Time for Payment . In the event that the term of this
Lease commences on a date other than the first day of a calendar
month, on the date of commencement of the term hereof Tenant shall
pay to Landlord as rent for the period from such date of
commencement to the first day of the next succeeding calendar month
that proportion of the monthly rent hereunder which the number of
days between such date of commencement and the first day of the
next succeeding calendar month bears to thirty (30). In the
event that the term of this Lease for any reason ends on a date
other than the last day of a calendar month, on the first day of
the last calendar month of the term hereof Tenant shall pay to
Landlord as rent for the period from said first day of said last
calendar month to and including the last day of the term hereof
that proportion of the monthly rent hereunder which the number of
days between said first day of said last calendar month and the
last day of the term hereof bears to thirty (30).
C.
Late charge . Notwithstanding any other provision of
this Lease, if Tenant is in default in the payment of rent as set
forth in this Paragraph 4 when due, or any part thereof, Tenant
agrees to pay Landlord, in addition to the delinquent rental due, a
late charge for each rental payment in default ten (10) days after
written notice. Said late charge shall equal ten (10%)
percent of each rental payment so in default.
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D.
Additional Rent . Beginning with the commencement date
of the term of this Lease, Tenant shall pay to Landlord in addition
to the Basic Rent and as Additional Rent the following:
(1)
Tenant’s proportionate share of all utilities relating to the
Complex as set forth in Paragraph 11, and
(2)
Tenant’s proportionate share of all Taxes relating to the
Complex as set forth in Paragraph 12, and
(3)
Tenant’s proportionate share
of all insurance premiums relating to the Complex, as set forth in
Paragraph 15, and
(4)
Tenant’s proportionate share
of expenses for the operation, management, maintenance and repair
of the Building (including common areas of the Building) and Common
Areas of the Complex in which the Premises are located as set forth
in Paragraph 7, and
(5)
All charges, costs and expenses,
which Tenant is required to pay hereunder, together with all
interest and penalties, costs and expenses including
attorney’s fees and legal expenses, that may accrue thereto
in the event of Tenant’s failure to pay such amounts, and all
damages, reasonable costs and expenses which landlord may incur by
reason of default of Tenant or failure on Tenant’s part to
comply with the terms of this Lease. In the event of
nonpayment by Tenant of Additional Rent, Landlord shall have all
the rights and remedies with respect thereto as Landlord has for
nonpayment of rent.
Tenant shall
pay to Landlord monthly, in advance, Tenant’s prorata
share of an amount estimated by Landlord to be Landlord’s
approximate average monthly expenditure for such Additional Rent
items, which estimated amount shall be reconciled at the end of
each calendar year as compared to Landlord’s actual
expenditure for said Additional Rent items, with Tenant paying to
Landlord, upon demand, any amount of actual expenses expended by
Landlord in excess of said estimated amount, or Landlord refunding
to Tenant any amount of estimated payments made by Tenant in excess
of Landlord’s actual expenditures for said Additional Rent
items.
Tenant’s
payment for such Additional Rent as of the commencement of the Term
of this Lease shall be
Twenty Thousand Eight Hundred Forty Two
and 56/100 ($20,842.56) Dollars per
month ($0.96 x 21,711 s.f. =
$20,842.56).
Any payments
required to be made by Tenant for Additional Rent shall be made by
check or instrument separate from that check or instrument used by
Tenant to make any payments for Basic Rent pursuant to paragraph 4
A.
The respective
obligations of Landlord and Tenant under this paragraph shall
survive the expiration or other termination of the term of this
Lease, and if the term hereof shall expire or shall otherwise
terminate on a day other than the last day of a calendar year, the
actual Additional Rent incurred for the calendar year in which the
term hereof expires or otherwise terminates shall be determined and
settled on the basis of the statement of actual Additional Rent for
such calendar year and shall be prorated in the proportion which
the number of days in such calendar year preceding such expiration
or termination bears to 365.
E.
Place of Payment of Rent and Additional Rent . All
Basic Rent hereunder and all payments hereunder for Additional Rent
shall be paid to Landlord at the office of Landlord at 1875 South
Grant Street, Suite 100, San Mateo, CA 94402, or to such other
person or to such other place as Landlord may from time to time
designate in writing.
6
F.
Security Deposit . Concurrently with Tenant’s
execution of this Lease, Tenant shall deposit with Landlord the sum
of Fifty Five Thousand
and 00/100_ ($55,000.00) Dollars (the “Security
Deposit”). Said sum shall be held by Landlord as a
Security Deposit for the faithful performance by Tenant of all the
terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Tenant
defaults with respect to any provisions of this Lease, including,
but not limited to, the provisions relating to the payment of rent
and any of the monetary sums due herewith, Landlord may (but shall
not be required to ) use, apply or retain all or any part of this
Security Deposit for the payment of any other amount which Landlord
may spend by reason of Tenant’s default or to compensate
Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant’s default. If any portion of said
Deposit is so used or applied, Tenant shall, within ten (10) days
after written demand therefor, deposit cash with Landlord in the
amount sufficient to restore the Security Deposit to its original
amount. Tenant’s failure to do so shall be a material
breach of this Lease. Landlord shall not be required to keep
this Security Deposit separate from its general funds, and Tenant
shall not be entitled to interest on such Deposit. The
Security Deposit or any balance thereof after application by
Landlord to Tenant’s default(s), shall be returned to Tenant
(or at Landlord’s option, to the last assignee of
Tenant’s interest hereunder) at the expiration of the Lease
term and after Tenant has vacated the Premises. In the event
of termination of Landlord’s interest in this Lease, Landlord
shall transfer said Deposit to Landlord’s successor in
interest whereupon Tenant agrees to release Landlord from liability
for the return of such Deposit or the accounting
therefor.
5.
RULES AND REGULATIONS AND COMMON AREA Subject to the
terms and conditions of this Lease and such reasonable Rules and
Regulations as Landlord may from time to time prescribe, Tenant and
Tenant’s employees, invitees and customers shall, in common
with other occupants of the Complex in which the Premises are
located, and their respective employees, invitees and customers,
and others entitled to the use thereof, have the non-exclusive
right to use the access roads, parking areas, and facilities
provided and designated by Landlord for the general use and
convenience of the occupants of the Complex in which the Premises
are located, which areas and facilities are referred to herein as
“Common Area” This right shall terminate upon the
termination of this Lease. Landlord reserves the right from
time to time to make changes in the shape, size, location, amount
and extent of Common Area. Landlord further reserves the
right to promulgate such reasonable rules and regulations relating
to the use of the Common Area, and any part or parts thereof, as
Landlord may deem appropriate for the best interests of the
occupants of the Complex. The Rules and Regulations shall be
binding upon Tenant upon delivery of a copy of them to Tenant, and
Tenant shall abide by them and cooperate in their observance.
Such Rules and Regulations may be reasonably amended by Landlord
from time to time, with or without advance notice, and all
amendments shall be effective upon delivery of a copy to
Tenant. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Complex of
any of said Rules and Regulations.
Landlord shall
operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for
such maintenance shall be consistent with comparable buildings and
at the discretion of Landlord.
7
6
PARKING Tenant shall have the right at no charge to use
with other tenants or occupants of the Complex 69
undesignated parking spaces in the common parking areas of the
Complex. Tenant agrees that Tenant, Tenant’s employees,
agents, representatives and/or invitees shall not use parking
spaces in excess of said 69 spaces allocated to Tenant
hereunder. Landlord shall have the right, at Landlord’s
sole discretion, to specifically designate the location of
Tenant’s parking spaces within the common parking areas of
the Complex (but in a non-discriminatory manner) in the event of a
dispute among the tenants occupying the building and/or Complex
referred to herein, in which event Tenant agrees that Tenant,
Tenant’s employees, agents, representatives and/or invitees
shall not use any parking spaces other than those parking spaces
specifically designated by Landlord for Tenant’s use.
Said parking spaces, if specifically designated by landlord to
Tenant, may be relocated by Landlord at any time, and from time to
time. Landlord reserves the right, at Landlord’s sole
discretion, to rescind any specific designation of parking spaces,
thereby returning Tenant’s parking spaces to the common
parking area. Landlord shall give Tenant written notice of
any change in Tenant’s parking spaces. Tenant shall
not, at any time, park, or permit to be parked, any trucks or
vehicles adjacent to the loading areas so as to interfere in any
way with the use of such areas, nor shall Tenant at any time park,
or permit the parking of Tenant’s trucks or other vehicles or
the trucks and vehicles of Tenant’s suppliers or others, in
any portion of the common area not designated by Landlord for such
use by Tenant. Tenant shall not park not permit to be parked,
any inoperative vehicles or equipment on any portion of the common
parking area or other common areas of the Complex. Within 48
hours following notice to Tenant, Tenant agrees to ensure
compliance by its employees with the parking provision contained
herein. If Tenant or its employees park in other than such
designated parking areas and fails to cure within 48 hours, then
Landlord may charge Tenant, as an additional charge, and Tenant
agrees to pay, ten ($10.00) Dollars per day for each day or partial
day each such vehicle is parked in any area other than that
designated. Tenant hereby authorizes Landlord at
Tenant’s sole expense to tow away from the Complex any
vehicle belonging to Tenant or Tenant’s employees parked in
violation of these provisions, or to attach violation stickers or
notices to such vehicles. Tenant shall use the parking areas
for vehicle parking only, and shall not use the parking areas for
storage.
7.
EXPENSES OF OPERATION, MANAGEMENT AND MAINTENANCE OF THE COMMON
AREAS OF THE COMPLEX, PREMISES AND BUILDING IN WHICH THE PREMISES
ARE LOCATED Landlord shall maintain the Common Areas, the
Building and the Premises in condition and repair comparable to
similar buildings. As Additional Rent and in accordance with
Paragraph 4 D of this Lease, Tenant shall pay to Landlord
Tenant’s proportionate share (calculated on a square footage
or other equitable basis) of all expenses of operation, management,
maintenance and repair of the Common Areas of the Complex
including, but not limited to, license, permit and inspection fees;
security; utility charges associated with exterior landscaping and
lighting (including water and sewer charges); all charges incurred
in the maintenance of landscaped areas, lakes, parking lots,
sidewalks, driveways; maintenance, repair and replacement of all
fixtures and electrical, mechanical and plumbing systems;
structural elements and exterior
8
surfaces of the buildings;
salaries and employees benefits of personnel and payroll taxes
applicable thereto; supplies, materials, equipment and tools; the
cost of capital expenditures which have the effect of reducing
operating expenses, provided, however, that in the event Landlord
makes such capital improvements, Landlord shall amortize its
investment in said improvements (together with interest at the rate
of eight (8%) percent per annum on the unamortized balance) as an
operating expense in accordance with standard accounting practices,
provided, that such amortization is not a rate greater than the
anticipated savings in the operating expenses and further provided
that any applicable reserve shall be applied before the charge is
made.
As
Additional Rent and in accordance with paragraph 4D of this Lease,
Tenant shall pay its proportionate share (calculated on a square
footage or other equitable basis) of the cost of operation
(including common utilities), management, maintenance and repair of
the Premises and the building (including common areas such as
lobbies, restrooms, janitor’s closets, hallways, elevators,
mechanical and telephone rooms, stairwells, entrances, spaces above
the ceilings) in which the Premises are located. The
maintenance items herein referred to include, but are not limited
to, janitorization, electrical systems (such as outlets, lighting
fixtures, lamps, bulbs, tubs, ballasts), heating and
airconditioning controls (such as mixing boxes, thermostats, time
clocks, supply and return grills), all interior improvements within
the Premises including but not limited to: wall coverings, window
coverings, acoustical ceilings, vinyl tile, carpeting,
partitioning, doors (both interior and exterior, including closing
mechanisms, latches, locks), and all other interior improvements of
any nature whatsoever, all windows, window frames, plate glass,
glazing, truck doors, main plumbing systems of the building (such
as water and drain lines, sinks, toilets, faucets, drains, showers
and water fountains), main electrical systems (such as panels and
conduits), heating and air conditioning systems (such as
compressors, fans, air handlers, ducts, boilers, heaters), store
fronts, roofs, downspouts, building common area interiors (such as
wall coverings, window coverings, floor coverings and
partitioning), ceilings, building exterior doors, skylights (if
any), automatic fire extinguishing systems and elevators; license,
permit, and inspection fees; security; salaries and employee
benefits of personnel and payroll taxes applicable thereto;
supplies, materials, equipment and tools; the cost of capital
expenditures which have the effect of reducing operating expenses,
provided, however, than in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said
improvements (together with interest at the rate of eight (8%)
percent per annum on the unamortized balance) as an operating
expense in accordance with standard accounting practices, provided,
that such amortization is not at a rate greater than the
anticipated savings in the operating expenses. Tenant hereby
waives all rights under, and benefits of, subsection 1 of Section
1932 and Section 1941 and 1942 of the California Civil Code and
under any similar law, statute or ordinance now or hereafter in
effect. Tenant agrees to provide carpet shields under all
rolling chairs or to otherwise be responsible for wear and tear of
the carpet caused by such rolling chairs if such wear and tear
exceeds that caused by normal foot traffic in surrounding
areas. Areas of excessive wear shall be replaced at
Tenant’s sole expense upon Lease termination.
9
“Additional
Rent” as used herein shall not include and notwithstanding
anything to the contrary in this Lease Tenant shall have no
obligation to pay, reimburse Landlord for, or otherwise perform any
of the following repairs, replacements, costs, or expenses
(collectively “costs”):
A.
Landlord’s debt
repayments; interest on charges;
B.
Costs and
expenses directly or indirectly incurred by Landlord for the
benefit of any other tenant; cost for the installation of
partitioning or any other tenant improvements; and/or cost of
attracting tenants;
C.
Depreciation
D.
Debt or ground lease payments,
costs, fees or expenses, or any interest thereon;
E.
Executive salaries and other wages,
salaries, compensation, and labor burden for any employee not
stationed on the Complex on a full-time basis or any fee, profit or
compensation retained by Landlord or its affiliates for management
and administration of the Complex; other than a 3% management fee
to an affiliate of Landlord.
F.
Costs occasioned by the act,
omission or violation of Law by Landlord, any other occupant of the
Complex, or their respective agents, employees or
contractors.
G.
Costs occasioned by fire, acts of
God, or other casualties or by the exercise of the power of eminent
domain.
H.
Lease payments and costs for capital
machinery and equipment, such as air conditioners, elevators, and
the like and other costs relating to repairs, alterations,
improvements, equipment and tools which could properly be
capitalized under generally accepted accounting principles, except
to the extent that (i) the foregoing reduces the expenses
otherwise payable by Tenant under the Lease and
(ii) Tenant’s share of such Cost during any twelve-month
period of the Lease is does not exceed the amortized cost of the
item over its useful life, based on the interest rate described
above.
I.
Costs reasonably recoverable from
others and costs for which Tenant reimburses Landlord directly or
which Tenant pays directly to a third person.
J.
Costs to place the Premises in the
delivery condition required by this Lease, costs to correct any
construction defect in the Complex or to comply with any
CC&R’s, underwriter’s requirement or Law applicable
to the Premises or the Complex as of the Commencement
Date.
10
