CapLease, Inc. [Designation of Senior Security]
Exhibit
4.8
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REGISTERED
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PRINCIPAL
AMOUNT NO.: __________
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$
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CUSIP
NO.: __________
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[Designation
of Senior Security]
CapLease,
Inc., a Maryland corporation (hereinafter called the “Corporation,” which term
shall include any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ____________, or registered
assigns, upon presentation, the principal sum of ____________ DOLLARS on
____________, and to pay interest on the outstanding principal amount thereon
from ____________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on
__________ and __________ in each year, commencing ____________, at the rate
of
____% per annum, until the entire principal amount hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture,
be
paid to the Person in whose name this Senior Security (or one or more
Predecessor Senior Securities) is registered at the close of business on the
Regular Record Date for such interest which shall be the ____________ or
____________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may either be paid to the Person in whose name this Senior
Security (or one or more Predecessor Senior Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of
Senior Securities of this series not more than 15 days and not less than 10
days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Senior Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payment
of the principal of, Make-Whole Amount, if any, on, and interest on this Senior
Security will be made at the office or agency of the Corporation maintained
for
that purpose in the City of ____________, State of ____________, or elsewhere
as
provided in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Corporation, payment
of interest may be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register kept
for
the Senior Securities pursuant to Section 305 of the Indenture (the “Security
Register”) or (ii) transfer to an account of the Person entitled thereto located
inside the United States.
This
Senior Security is one of a duly authorized issue of securities of the
Corporation (herein called the “Senior Securities”), issued and to be issued in
one or more series under an Indenture, dated as of ____________, 20__ (herein
called the “Indenture”), between the Corporation and ____________ (herein called
the “Trustee,” which term includes any successor trustee under the Indenture
with respect to the Senior Securities), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Corporation, the Trustee and the Holders of the Senior Securities and of the
terms upon which the Senior Securities are, and are to be, authenticated and
delivered. This Senior Security is one of the series designated as the
“[designation of Senior Securities],” limited in aggregate principal amount to
$____________.
The
Senior Securities may be redeemed at any time at the option of the Corporation,
in whole or in part, upon notice of not more than 60 nor less than 30 days
prior
to the Redemption Date, at a redemption price equal to the sum of (i) the
principal amount of the Senior Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Senior Securities.
The
following definitions apply with respect to any redemption of the Senior
Securities of this series at the option of the Corporation:
“Make-Whole
Amount” means, in connection with any optional redemption or accelerated payment
of any Senior Security, the excess, if any, of (i) the aggregate present value
as of the date of such redemption or accelerated payment of each dollar of
principal being redeemed or paid and the amount of interest (exclusive of any
interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semiannual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, over (ii) the aggregate principal amount of the
Senior Securities being redeemed or paid.
“Reinvestment
Rate” means .25% (one-fourth of one percent) plus the arithmetic mean of the
yields under the respective headings “This Week” and “Last Week” published in
the Statistical Release under the caption “Treasury Constant Maturities” for the
maturity (rounded to the nearest month) corresponding to the remaining life
to
maturity, as of the payment date of the principal being redeemed or paid. If
no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall
be
used.
“Statistical
Release” means the statistical release designated “H.15 (519)” or any successor
publication which is published weekly by the Federal Reserve System and which
establishes yields on actively traded United States government securities
adjusted to constant maturities or, if such statistical release is not published
at the time of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Corporation.
2
The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Corporation on this Senior Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Corporation, in each case, upon compliance by the Corporation with
certain conditions set forth in the Indenture, which provisions apply to this
Senior Security.
If
an
Event of Default with respect to the Senior Securities shall occur and be
continuing, the principal of, and the Make-Whole Amount, if any, on, the Senior
Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
As
provided in and subject to the provisions of the Indenture, the Holder of this
Senior Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or
for
any other remedy thereunder, unless such Holder shall have previously given
the
Trustee written notice of a continuing Event of Default with respect to the
Senior Securities, the Holders of not less than 25% in principal amount of
the
Senior Securities at the time Outstanding shall have made written request to
the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of the Senior
Securities at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding for 60 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not apply
to
any suit instituted by the Holder of this Senior Security for the enforcement
of
any payment of principal hereof or any interest on or after the respective
due
dates expressed herein.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Corporation
and the rights of the Holders of the Senior Securities under the Indenture
at
any time by the Corporation and the Trustee with the consent of the Holders
of
not less than a majority in principal amount of the Outstanding Senior
Securities. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Senior Securities at the time
Outstanding, on behalf of the Holders of all Senior Securities, to waive
compliance by the Corporation with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Senior Security shall be conclusive
and
binding upon such Holder and upon all future Holders of this Senior Security
and
of any Senior Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent
or
waiver is made upon this Senior Security.
No
reference herein to the Indenture and no provision of this Senior Security
or of
the Indenture shall alter or impair the obligation of the Corporation, which
is
absolute and unconditional, to pay the principal of, Make-Whole Amount, if
any,
on, and interest on this Senior Security at the times, place and rate, and
in
the coin or currency, herein prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Senior Security is registrable in the Security Register,
upon surrender of this Senior Security for registration of transfer at the
office or agency of the Corporation in any Place of Payment where the principal
of, Make-Whole Amount, if any, on, and interest on this Senior Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer
in
form satisfactory to the Corporation and the Security Registrar for the Senior
Securities (the “Security Registrar”) duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior
Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
3
The
Senior Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Senior Securities of this series are exchangeable for a like aggregate principal
amount of Senior Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Corporation may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
Prior
to
due presentment of this Senior Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Senior Security is registered as the owner
hereof for all purposes, whether or not this Senior Security be overdue, and
neither the Corporation, the Trustee nor any such agent shall be affected by
notice to the contrary.
No
recourse under or upon any obligation, covenant or agreement contained in the
Indenture or in this Senior Security, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future shareholder, officer or director, as such, of the Corporation
or of any successor, either directly or through the Corporation or any
successor, under any rule of law, statute or constitutional provision or by
the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Senior Security by the Holder thereof and as part of the
consideration for the issue of the Senior Securities.
All
terms
used in this Senior Security which are defined in the Indenture shall have
the
meanings assigned to them in the Indenture.
THE
INDENTURE AND THE SENIOR SECURITIES, INCLUDING THIS SENIOR SECURITY, SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK.
Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Corporation has caused “CUSIP” numbers to be
printed on the Senior Securities as a convenience to the Holders of the Senior
Securities. No representation is made as to the correctness or accuracy of
such
CUSIP numbers as printed on the Senior Securities, and reliance may be placed
only on the other identification numbers printed hereon.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee by manual signature, this Senior Security shall not be entitled
to
any benefit under the Indenture or be valid or obligatory for any
purpose.
4
IN
WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed
under its corporate seal this day of ____________.
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By:
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Name:
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Title:
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Attest:
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By:
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Name:
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Title:
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[SEAL]
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TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Senior Securities of the series designated “[designation of Senior
Securities]” pursuant to the within-mentioned Indenture.
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,
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as
Trustee
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By:
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Authorized
Signatory
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5
ASSIGNMENT
FORM
FOR
VALUE
RECEIVED, the undersigned hereby
sells,
assigns and transfers unto
PLEASE
INSERT SOCIAL
SECURITY
OR OTHER IDENTIFYING
NUMBER
OF
ASSIGNEE
(Please
Print or Typewrite Name and Address including Zip Code of Assignee)
____________
the within Senior Security of CapLease, Inc. and ____________ hereby does
irrevocably constitute and appoint ____________ Attorney to transfer said Senior
Security on the books of the within-named Corporation with full power of
substitution in the premises.
Dated:_____________________________
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