Exhibit 10.5(a)(i)


 


SUPPLEMENTAL
INDENTURE, dated
May 5, 1998, between ROCK-McGRAW, INC., a New York corporation, having an
office at 1221 Avenue of the Americas, New York, N.Y. 10020 (the “Landlord”), and SOCIÉTÉ GÉNÉRALE,
a corporation organized and existing under the laws of the Republic of France
having an office at 1221 Avenue of the Americas, New York, N.Y. 10020, (the “Tenant”).


 


By Lease dated as of October 29, 1993, as the
same heretofore may have been amended (the “Original Lease”), certain premises, as therein
described, in the building known as 1221 Avenue of the Americas (the “Building”) in the Borough of Manhattan, New
York, N.Y., are now leased and demised by the Landlord to the Tenant.


 


The parties hereto mutually desire to amend
the Original Lease as herein set forth, and are executing and delivering this
Supplemental Indenture for such purpose (the Original Lease as amended by this
Supplemental Indenture, the “Lease”).


 


NOW, THEREFORE, THIS
SUPPLEMENTAL INDENTURE WITNESSETH, that the parties hereto, in consideration of the terms and
conditions herein contained, hereby amend the Original Lease in the following
respects, and only in the following respects:


 


(1)           Definitions. All capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them in the
Original Lease.


 


(2)           Demise of
Additional Space; Term; Rent and Terms of Leasing. (a) The Landlord does hereby lease and demise to the
Tenant, and the Tenant does hereby hire and take from the Landlord, subject and
subordinate to the Qualifying Encumbrances and upon and subject to the terms
and conditions of the Lease for the term hereinafter stated, the spaces
substantially as shown crosshatched on the diagrams attached hereto as Exhibit A and designated as ‘A’ on the
14th and 15th Floors of the Building, together with all fixtures, equipment,
improvements, installations and appurtenances which at the commencement of or
during the term of the Lease with respect to said spaces are thereto attached
(except items not deemed to be included therein and removable by the Tenant as
provided in Article Four of the Original Lease); which spaces,
fixtures, equipment, improvements, installations and appurtenances are herein
sometimes called the “Additional Space”.


 

















 


(b)           The term of the Lease for which the
Additional Space is hereby leased and demised shall commence on September 15,
1998 (subject to Section 2.2 of
the Original Lease, such date for the commencement of the term with respect to
the Additional Space being the “Additional Space Term Commencement Date”)
and shall end on September 30, 2013 or on such earlier date upon which said
term may expire or be terminated pursuant to any of the conditions of
limitation or other provisions of the Lease or pursuant to law.


 


(c)            For the portion of the term of the Lease for
which the Additional Space is leased and demised, the Fixed Rent reserved under
the Original Lease shall be increased as follows:


 


(i)    for the period commencing on the Additional
Space Term Commencement Date and ending on August 31, 2003, $3,690,619.00 per
annum;


 


(ii)   for the period commencing on September 1,
2003 and ending on August 31, 2008, $4,030,455.00 per annum; and


 


(iii)  for the period commencing on September 1,
2008 and ending on September 30, 2013, $4,370,291.00 per annum.


 


The Tenant does hereby
covenant and agree to pay the Fixed Rent as so increased and the Additional
Rent payable under the Lease, at the times and in the manner specified in the
Lease for the payment of Fixed Rent and Additional Rent, except that, if the
Additional Space Term Commencement Date shall be other than the first day of a
calendar month, the amount by which the first monthly installment of the Fixed
Rent is so increased, apportioned for the part month in question, shall be
payable on the Additional Space Term Commencement Date. Provided the Tenant
shall not be in default of any monetary obligations under the Lease beyond the
expiration of any applicable notice and cure period on each date that the Rent
Credit (as hereinafter defined) or any portion thereof is applied on account of
the Fixed Rent by the Landlord in accordance with the terms of this Section 2(c), the Tenant shall receive a
credit (the “Rent Credit”) to be applied against the next installments of Fixed
Rent becoming due and payable under the Lease in an amount equal to
$2,460,413.00, provided that if the Tenant shall be in default as aforesaid on
any date that a portion of the Rent Credit is to be applied by the Landlord,
the application of such portion of the Rent Credit shall be deferred until such
date as such monetary default is cured (it being acknowledged that the Landlord
shall have the right to credit any unapplied portion of the Rent Credit to any
such uncured monetary default).


 


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(d)            Effective as of the Additional Space Term
Commencement Date, the term the “Premises” as used in the Lease shall be deemed to include the
Additional Space except that, in applying the provisions of Article Two of the Original Lease to the
Additional Space, (i) the “Premises” shall be deemed to refer to the Additional
Space only and (ii) the “Term Commencement Date” referred to in said Article Two shall be deemed to mean the
Additional Space Term Commencement Date. Nothing contained in this Supplemental
Indenture shall give to the Tenant any option for the renewal or extension of
the term hereby granted with respect to the Additional Space except pursuant to
Article Thirty-Two of the
Original Lease.


 


(e)            The Landlord and the Tenant hereby stipulate
for all purposes of the Lease (including, without limitation, for the
determination of Tenant’s Area) that the rentable square footage of Additional
Space (i) is 42,742 with respect to space ‘A’ on the 14th Floor and 42,217 with
respect to space ‘A’ on the 15th Floor, (ii) has been determined in accordance
with the Measurement Standard and (iii) shall not be changed by future remeasurement
or measurement standard, but only by actual increase or decrease in the Additional
Space.


 


(f)            The Tenant has examined and shall accept the
Additional Space in its existing “as-is”
condition and state of repair and understands that no work is to be performed
by the Landlord in connection
therewith except as set forth on Exhibit B attached
hereto (collectively, the “Additional
Space Landlord’s Work”). The
Landlord, either through its own
employees or through a contractor or contractors to be engaged by it for such
purpose, will proceed with due
dispatch, subject to delay by causes beyond its reasonable control and Tenant Delay, to do all of the Additional
Space Landlord’s Work during regular working hours and will exercise all reasonable efforts to substantially
complete all of the Additional Space
Landlord’s Work within ninety (90) days of the Additional Space Term Commencement Date (as extended by delay by
causes beyond the reasonable control of the Landlord and by Tenant Delay). If the cost of performing the Additional
Space Landlord’s Work is
increased due to any Tenant Delay of which the Tenant shall have been given
notice by the Landlord and which
shall not have been cured by the Tenant within one Business Day following the giving of such notice, the
Tenant shall pay to the Landlord an amount equal to such increase in cost. The Landlord and the
Tenant shall each use reasonable efforts to cooperate in the performance of their respective work in the Additional
Space in order to minimize
interference and delay with the other, provided, however, that, notwithstanding
anything to the contrary contained in the Lease, neither the Tenant nor any
other Tenant Party may enter
into or upon the Premises during any asbestos removal. The Landlord’s performance of the portions of the Additional
Space Landlord’s Work described in items (1)


 


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and (2) of
Exhibit B (the “Demo and
Abatement”) shall, subject to delay by causes beyond its
reasonable control, be completed on or before November 15, 1998 and if the
Landlord shall fail to substantially complete the Demo and Abatement by such
date, then as the Tenant’s sole remedy therefor, the Rent Credit shall be
increased by an amount equal to (x) (i) $10,111.28 multiplied by (ii) the
number of days in the period commencing on November 15, 1998 (as extended by causes beyond the
Landlord’s reasonable control) and ending on the day on which the Demo and
Abatement is substantially completed, plus (y) (i) the per diem amount of
Additional Rent payable by the Tenant pursuant to Article Twenty-four of the Lease with respect to the Additional
Space only multiplied by (ii) the number of days in the period commencing on
October 15, 1998 (as extended by causes beyond the Landlord’s reasonable
control) and ending on the day on which the Demo and Abatement is substantially
completed. At all times during the Landlord’s performance of the Demo and
Abatement the Landlord shall maintain a policy or policies of commercial
general liability insurance (including, without limitation, insurance of the
Landlord’s contractual liability under this Lease) with the premiums fully paid
on or before the due date, issued by a reputable insurance company licensed to
do business in the State of New York, having a minimum rating A-XI by A.M. Best
& Company or such other comparable financial rating as the Landlord may at
any time consider reasonably appropriate, and reasonably acceptable. Such
insurance shall afford a combined single limit of $5,000,000 per occurrence in
respect of injury or death to any person or number of persons or for damage to
or loss of use of property in any one occurrence, subject to reasonable
deductibles. Each such policy shall provide that it cannot be cancelled,
changed or modified except upon 30 days’ prior notice to the Tenant and shall
name the Tenant Indemnitees as additional insureds thereunder. The Landlord
shall furnish original certificates of such insurance to the Tenant prior to
the Additional Space Term Commencement Date (or any date on which the Tenant is
granted earlier access) and thereafter not less than 30 days prior to the
expiration of each such policy and any renewals or replacements thereof.
Notwithstanding the foregoing, to the extent that the Landlord has the
contractor(s) performing the Demo and Abatement include the Tenant as an
additional insured under such contractor’s policy or policies of insurance
protecting against liability for worker’s compensation and for bodily injuries
and death, as well as for property damage arising out of or in connection with
the performance and completion of such Demo and Abatement, the Tenant will, in
connection with any loss occurring during the Demo and Abatement, consider any
such contractor’s insurance primary.


 


(g)           (i) Unless the Tenant notifies the Landlord
to the contrary before the date that is 30 days following the date the Additional
Space Landlord’s Work is substantially completed, the Tenant shall be
conclusively deemed to have agreed that the Landlord, up to


 


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the time of such possession
of such part of the Additional Space Premises, had performed all of the
Landlord’s obligations under this Supplemental Indenture with respect to such
part and that such part, except for latent defects and except for minor details
of construction, decoration and mechanical adjustment, was in satisfactory
condition as of the date of such possession. If the Tenant so notifies the
Landlord and the Landlord had not performed such obligations, the Landlord
shall promptly commence and diligently proceed with the performance thereof in
such a manner as will not unreasonably interfere with the Additional Space
Tenant Work (as hereinafter defined).


 


(ii) Any dispute between the Landlord and the
Tenant with respect to the date the  Additional Space Landlord’s Work shall have been substantially
completed shall be resolved in
accordance with the provisions of this Section
2(g)(ii). If the Tenant shall not agree with the Landlord’s determination of the date the
Additional Space Landlord’s Work shall have been substantially completed, the Tenant shall, within 30 days
following the date that the Landlord
notifies the Tenant of the Landlord’s determination, notify the Landlord that
the Tenant desires to have such
disagreement determined by an Arbitrator (as hereinafter defined), and promptly thereafter the Landlord
and the Tenant shall designate an architect (the “Arbitrator”) whose determination made in accordance with this Section 2(g)(ii) shall be binding upon the parties. If the Tenant fails
to notify the Landlord of the Tenant’s desire to have such dispute determined by an Arbitrator within the 30-day period
set forth in the preceding
sentence, then the Landlord’s determination shall be conclusive and binding on
the Tenant. If the determination
of the Arbitrator shall confirm the determination of the Landlord, then the Tenant shall pay the cost
of the Arbitrator. If the Arbitrator shall confirm the determination of the Tenant, then the
Landlord shall pay the cost of the Arbitrator. The Arbitrator shall be a partner or principal of
an independent architectural firm having at least 10 architects as partners or principals who
shall have at least 10 years of experience in interior construction of commercial office buildings in Midtown
Manhattan. If the Landlord and
the Tenant shall be unable to agree upon the designation of the Arbitrator
within 15 days after receipt of
notice from the other party requesting agreement as to the designation of the Arbitrator,
which notice shall contain the names and addresses of two or more architects
who are acceptable to the party sending
such notice, then either party shall have the right to request the American Arbitration Association
(or any organization which is the successor thereto) to designate as the Arbitrator an architect having the
qualifications set forth in the preceding
sentence whose determination made in accordance with this Section 2(g)(ii) shall be conclusive and binding upon the parties, and
the cost of such architect shall be borne as provided above in the case of the Arbitrator designated by the Landlord
and the Tenant. Any determination
made by an Arbitrator shall either be the Landlord’s determination or the


 


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Tenant’s determination, and
any determination which does not comply with the foregoing shall be null and
void and not binding on the parties. In rendering such determination the
Arbitrator shall not add to, subtract from or otherwise modify the provisions
of this Supplemental Indenture. Pending the resolution of any dispute pursuant
to this Section 2(g)(ii), the
Tenant shall pay all Fixed Rent and Additional Rent required to be paid in
accordance with the Lease based on the Landlord’s determination. If the
determination made by the arbitrator is the Tenant’s determination, the
Landlord shall refund to Tenant the amount of any overpayment of Fixed Rent and
Additional Rent within 10 Business Days following the resolution of the
dispute, together with interest thereon at a rate per annum equal to the rate
of interest publicly announced from time to time by Citibank, N.A. as its “base
rate” from the date the Tenant made such overpayment to the date such
overpayment is refunded.


 


(h)           The renovation work to be performed by the
Tenant in the Additional Space shall be done in accordance with the provisions of Article Thirty-three of the Original
Lease except that for purposes of this Supplemental Indenture, (i) all
references to the “Premises” shall be deemed to be references to the “Additional
Space,” (ii) all references to the “Tenant Work” shall be deemed to be references
to the “Additional Space Tenant Work,” (iii) all references to the “Tenant
Allowance” shall be deemed to be references to the “Additional Space Tenant
Allowance” (as hereinafter defined), (iv) all references to “$500,000.00” in Section 33.5 of the Original Lease shall
be deemed to be references to “$100,000.00”, and (v) Sections 33.6 and
33.7 of the Original Lease shall
not be applicable. The “Additional Space Tenant Work”  means
all work and services described in the Tenant Working Drawings relating to the
Additional Space, and all labor, materials and equipment necessary to perform
the same. The “Additional Space Tenant Allowance” means $3,823,155.00.


 


(i)            The Tenant, at the Tenant’s sole cost and
expense, may renovate the public elevator vestibule of the 14th and/or 15th
Floors to conform to the design of similar space on the Tenant’s other floors
in the Building. All work done by the Tenant pursuant to this Section 2(i) shall be performed in
accordance with and subject to all of the provisions of the Original Lease
(including, without limitation, Articles Six
and Thirty-three of
the Original Lease).


 


(3)           Effective
on and after the execution and delivery of this Supplemental Indenture the
provisions of Articles Thirty-one and Thirty-eight of the Lease shall be deemed
null and void and of no further force or effect.


 


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(4)           Brokerage
Commissions. The
Landlord and the Tenant represent to each other that the only broker with which
they have dealt in connection with this Lease is Rockefeller Center Management
Corporation (“RCMC”), having an office at 1221 Avenue of
the Americas, New York, New York 10020. The Tenant shall indemnify and save
harmless the Landlord Indemnitees from and against all liability, claims,
suits, demands, judgments, costs, interest and expenses (including, without
limitation, reasonable counsel fees and disbursements incurred in the defense
thereof) to which the Landlord Indemnitees may be subject or suffer by reason
of any claim made by any person, firm or corporation other than RCMC for any
commission, expense or other compensation as a result of the execution and delivery
of this Supplemental Indenture or the demising of the Additional Space by the Landlord
to the Tenant pursuant to this Supplemental Indenture, which claim is alleged
to arise out of any conversations, negotiations or dealings between such
claimant and the Tenant. The Landlord shall indemnify and save harmless the
Tenant Indemnitees from and against all liability, claims, suits, demands,
judgments, costs, interest and expenses (including, without limitation,
reasonable counsel fees and disbursements incurred in the defense thereof) to
which the Tenant Indemnitees may be subject or suffer by reason of any claim
made by any person, firm or corporation for any commission, expense or other compensation
as a result of the execution and delivery of this Supplemental Indenture or the
demising of the Additional Space by the Landlord to the Tenant pursuant to this
Supplemental Indenture, which claim is alleged to arise out of any
conversations, negotiations or dealings between such claimant and the Landlord.
The Landlord agrees that there is no commission due and/or payable to RCMC in
connection with this transaction.


 


(5)           Representations.
(a) The Tenant hereby
represents and warrants to the Landlord that, as of the date hereof, the
Original Lease is in full force and effect and has not been modified, changed,
altered or amended in any respect except pursuant to this Supplemental Indenture.


 


(b)
The Landlord hereby represents and warrants to the Tenant that, as of the date
hereof, the Original Lease is in full force and effect and has not been
modified, changed, altered or amended in any respect except pursuant to this
Supplemental Indenture.


 


(6)          Miscellaneous. (a) This Supplemental Indenture contains a
complete statement of all the arrangements between the parties to this
Supplemental Indenture with respect to the subject matter contained in this
Supplemental Indenture. This Supplemental Indenture shall not be amended,
modified, canceled or terminated, in whole or in part, except by a writing signed
by all parties to this Supplemental Indenture.


 


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(b) This Supplemental Indenture shall be governed by and construed in accordance
with the laws of the State of New York. If any provision or provisions of this Supplemental
Indenture shall, for any reason and to any extent, be held to be invalid,
illegal or unenforceable, the remainder of this Supplemental Indenture and the
application of that provision or provisions to other persons or circumstances
shall not be affected but rather shall be enforced to the extent permitted by law.
This Supplemental Indenture shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Supplemental Indenture to be drafted.


 


(c) This Supplemental Indenture shall be binding upon and inure to the
benefit of the parties to this Supplemental Indenture and their respective
successors and permitted assigns.


 


(d) In the event of any conflicts between the provisions of this
Supplemental Indenture and the provisions of the Original Lease with respect to
the Additional Space, the provisions of this Supplemental Indenture shall be
controlling.


 


(7)           The
Original Lease, as
hereby amended, shall remain in full force and effect according to its terms
and conditions.


 


in witness
whereof, the parties hereto have duly executed this Supplemental Indenture as of
the day and year first above written.


 


	
   

  	
   

  	
  ROCK-McGRAW,
  INC.,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
     /s/ Jonathan
  Dyuen

  	
   

  
	
   

  	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
    /s/ Beth
  Berlin Dreyfuss

  	
   

  	
   

  	
   

  
	
  Assistant Secretary  

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SOCIÉTÉ
  GÉNÉRALE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
     /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
  Chief Financial
  Officer

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Assistant Secretary  

  	
   

  	
   

  	
   

  



 


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EXHIBIT B


 


LANDLORD’S ADDITIONAL SPACE WORK


 


1.             All previous tenant improvements, other than
stairways and lavatories, shall be demolished and removed, including cable and
wiring in the under-floor duct system. The supplemental A/C unit and associated
ductwork situated on the floor shall be removed and the piping capped at the
riser.


 


2.             All polychlorinated biphenyls and asbestos
shall be removed from the Additional Space (other than asbestos on the
structural elements in the perimeter and core areas such as columns, deck and
beams and minor areas of non-friable asbestos containing fireproofing at
certain points on inaccessible structural members) and affected areas to be
re-fireproofed. The Landlord shall, at the Tenant’s request, provide the Tenant
with copies for any required filing, an ACP-5 Form and, if requested, an ACP-7
Form in connection with the asbestos removal work required hereunder.


 


3.             Tie-ins shall be provided to the Building’s
fire alarm system and dampers for smoke purge to the extent currently required
by code.


 


4.             All building systems shall be delivered in
good working order.


 


5.             The
main sprinkler loop shall be removed back to the core connection.


 


6.             The restrooms shall be delivered in their “as
is” condition, except that all fixtures shall be in good working order.


 


7.             All existing fire speaker/strobes shall be
removed from the walls and temporarily hung from the structure above for reuse.
All existing pull stations and warden stations shall be delivered in their “as
is” condition.


 


8.             Building standard blinds shall be delivered
in good working order.


 


9.             Any missing convector covers will be replaced
and all convector covers shall be delivered in good working order and in their “as
is” condition.


 


10.           The Landlord shall restore the electrical
cell system to good working order, with all existing taps capped, all wiring
removed, and cells vacuumed. All trench-cover plates shall be delivered in good
working order.


 

















 


11.           The Landlord shall deliver the existing
electrical panels in good working order. Any missing circuit breakers shall be
replaced and the vertical closet penetration shall be fire stopped.


 


12.           The Landlord shall cap all existing panel
knock outs and secure all panel covers.


 


13.           The Landlord shall deliver all electrical
closets in compliance with the applicable provisions of the New York City
electrical code.


 


14.           The Landlord shall submeter the Additional
Space.


 


15.           The Landlord shall render the Additional
Space broom clean.