CapLease, Inc. [Designation of Senior Security]
Exhibit
4.10
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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]
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:
_________________________
NOTICE:
The signature to this assignment must correspond with the name as it appears on
the first page of the within Senior Security in every particular, without
alteration or enlargement or any change whatever.
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