CapLease, Inc. [Designation of Subordinated Security]
Exhibit
4.12
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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 Subordinated 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 Subordinated Security (or one or more
Predecessor Subordinated 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
Subordinated Security (or one or more Predecessor Subordinated 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 Subordinated 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 Subordinated 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 Subordinated 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 Subordinated 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
Subordinated Security is one of a duly authorized issue of securities of the
Corporation (herein called the “Subordinated 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 Subordinated 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 Subordinated
Securities and of the terms upon which the Subordinated Securities are, and are
to be, authenticated and delivered. This Subordinated Security is one of the
series designated as the “[designation of Subordinated Securities],” limited in
aggregate principal amount to $____________.
The
Subordinated 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 Subordinated Securities being redeemed plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount,
if any, with respect to such Subordinated Securities.
The
following definitions apply with respect to any redemption of the Subordinated
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 Subordinated 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
Subordinated 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 Subordinated 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
Subordinated Security.
If an
Event of Default with respect to the Subordinated Securities shall occur and be
continuing, the principal of, and the Make-Whole Amount, if any, on, the
Subordinated 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
Subordinated 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
Subordinated Securities, the Holders of not less than 25% in principal amount of
the Subordinated 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 Subordinated 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 Subordinated
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 Subordinated 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 Subordinated
Securities. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Subordinated Securities at the
time Outstanding, on behalf of the Holders of all Subordinated 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 Subordinated Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Subordinated Security and of any Subordinated 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 Subordinated
Security.
No
reference herein to the Indenture and no provision of this Subordinated 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 Subordinated Security at the times, place and
rate, and in the coin or currency, herein prescribed.
3
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Subordinated Security is registrable in the Security
Register, upon surrender of this Subordinated 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
Subordinated 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 Subordinated Securities (the “Security Registrar” duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Subordinated Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The
Subordinated 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,
Subordinated Securities of this series are exchangeable for a like aggregate
principal amount of Subordinated 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 Subordinated 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 Subordinated Security is registered as the
owner hereof for all purposes, whether or not this Subordinated Security be
overdue, and neither the Corporation, the Trustee nor any such agent shall be
affected by notice to the contrary.
The
Holder of this Subordinated Security by the acceptance thereof agrees that the
indebtedness evidenced by this Subordinated Security is subordinated in right of
payment, to the extent and in the manner provided in Article Sixteen of the
Indenture, to the prior payment in full of all Senior Debt and that the
subordination is for the benefit of the holders of Senior Debt. The Holder
hereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effect such subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for such purpose.
“Senior Debt” is defined in the Indenture as the principal of and interest on,
or substantially similar payments to be made by the Corporation in respect of,
the following, whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) indebtedness of the Corporation for
money borrowed or represented by purchase-money obligations, (b) indebtedness of
the Corporation evidenced by notes, debentures, or bonds, or other securities
issued under the provisions of an indenture, fiscal agency agreement or other
instrument, (c) obligations of the Corporation as lessee under leases of
property either made as part of any sale and lease-back transaction to which the
Corporation is a party or otherwise, (d) indebtedness of partnerships and joint
ventures which is included in the Corporation’s consolidated financial
statements, (e) indebtedness, obligations and liabilities of others in respect
of which the Corporation is liable contingently or otherwise to pay or advance
money or property or as guarantor, endorser or otherwise or which the
Corporation has agreed to purchase or otherwise acquire, and (f) any binding
commitment of the Corporation to fund any real estate investment or to fund any
investment in any entity making such real estate investment; but excluding,
however, (1) any such indebtedness, obligation or liability referred to in
clauses (a) through (f) above as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities, or ranks pari passu with the
Subordinated Securities, (2) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Corporation to substantially the
same extent as or to a greater extent than the Subordinated Securities are
subordinated and (3) the Subordinated Securities. As used in the preceding
sentence the term “purchase-money obligations” shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other instrument (whether or
not secured by any lien or other security interest but excluding indebtedness or
obligations for which response is limited to the property purchased) issued or
assumed as all or a part of the consideration for the acquisition of property,
whether by purchase, merger, consolidation or otherwise, but shall not include
any trade accounts payable. A distribution may consist of cash, securities or
other property.
4
No
recourse under or upon any obligation, covenant or agreement contained in the
Indenture or in this Subordinated 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 Subordinated Securities.
All terms
used in this Subordinated Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THE
INDENTURE AND THE SUBORDINATED SECURITIES, INCLUDING THIS SUBORDINATED 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 Subordinated Securities as a convenience to the Holders of the
Subordinated Securities. No representation is made as to the correctness or
accuracy of such CUSIP numbers as printed on the Subordinated 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 Subordinated Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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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 Subordinated Securities of the series designated “[designation of
Subordinated 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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6
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 Subordinated Security of CapLease, Inc. and ____________ hereby does
irrevocably constitute and appoint ____________ Attorney to transfer said
Subordinated 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 Subordinated Security in every particular, without
alteration or enlargement or any change whatever.
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