Exhibit 4.02
CALCULATION AGENCY AGREEMENT
CALCULATION AGENCY AGREEMENT, dated as of February 9, 2005
(the
"Agreement"), between Lehman Brothers Holdings Inc. (the "Company")
and Lehman
Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of up to
$4,600,000
aggregate principal amount of The Dow Jones Global Titans 50
Index(SM) SUNS(R)
Stock Upside Note Securities(R) Securities Due February 9, 2010
(the
"Securities")*;
WHEREAS, the Securities will be issued under an Indenture,
dated as of
September 1, 1987, between the Company and Citibank, N.A., as
Trustee (the
"Trustee"), as supplemented and amended by supplemental indentures
dated as of
November 25, 1987, November 27, 1990, September 13, 1991, October
4, 1993,
October 1, 1995, and June 26, 1997, and incorporating Standard
Multiple Series
Indenture Provisions dated July 30, 1987, as amended November 16,
1987
(collectively, the "Indenture"); and
WHEREAS, the Company requests the Calculation Agent to perform
certain
services described herein in connection with the Securities;
NOW THEREFORE, the Company and the Calculation Agent agree as
follows:
1. Appointment of Agent. The Company hereby appoints
Lehman Brothers
Inc., as Calculation Agent, and Lehman Brothers Inc. hereby
accepts such
appointment as the Company's agent for the purpose of
performing the
services hereinafter described upon the terms and subject to
the conditions
hereinafter mentioned.
2. Calculations and Information Provided. In response to
a request
made by the Trustee for a determination of the Maturity
Payment Amount due
on the Stated Maturity Date of the Securities, the Calculation
Agent shall
determine such Maturity Payment Amount and notify the Trustee
of its
determination. The Calculation Agent shall also be responsible
for (a) the
determination of the Successor Index if publication of the
Index is
discontinued, (b) the determination of the Closing Index Level
if no
Successor Index is available or if Dow Jones or the publisher
of any
Successor Index, as the case may be, fails to calculate and
announce a
Closing Index Level on any date, (c) adjustments to the Index,
the
Successor Index or the Closing Index Level if the method of
calculating any
of these items changes in a material respect
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* "SUNS" and "Stock Upside Note Securities" are trademarks
of Lehman
Brothers Inc. "Dow Jones" and "Dow Jones Global Titans 50
Index" are
servicemarks of Dow Jones & Company, Inc. and have
been licensed for
use by Lehman Brothers Holdings Inc. The notes, based on
the
performance of the Dow Jones Global Titans 50 Index, are
not
sponsored, endorsed, sold or promoted by Dow Jones, and
Dow Jones
makes no representation regarding the advisability of
investing in the
notes.
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or if the Index or Successor Index is in any other way
modified so that it
does not, in the opinion of the Calculation Agent, fairly
represent the
value of the Index, or Successor Index, as the case may be,
had such
changes or modifications not been made, (d) whether
adjustments are
required to the index level under various circumstances, (e)
the
determination of whether a Market Disruption Event has
occurred and (f) any
other calculations or determinations specified herein. The
Calculation
Agent shall notify the Trustee of all such adjustments or any
such
Successor Index, or if a Market Disruption Event has occurred.
Annex A
hereto sets forth the procedures the Calculation Agent will
use to
determine the information described in this Section 2.
3. Calculations. Any calculation or determination by the
Calculation
Agent pursuant hereto shall be at the sole discretion of the
Calculation
Agent and, in the absence of manifest error, will be
conclusive for all
purposes and binding. The Calculation Agent will have no
liability for its
determinations, except as provided in this Agreement. Any
calculation made
by the Calculation Agent hereunder shall, at the Trustee's
request, be made
available at the Corporate Trust Office.
4. Fees and Expenses. The Calculation Agent shall be
entitled to
reasonable compensation for all services rendered by it as
agreed to
between the Calculation Agent and the Company.
5. Terms and Conditions. The Calculation Agent accepts
its obligations
herein set out upon the terms and conditions hereof, including
the
following, to all of which the Company agrees:
(a) in acting under this Agreement, the Calculation
Agent is
acting solely as an independent expert of the Company and
does not
assume any obligation toward, or any relationship of
agency or trust
for or with, any of the holders of the Securities;
(b) unless otherwise specifically provided herein,
any order,
certificate, notice, request, direction or other
communication from
the Company or the Trustee made or given under any
provision of this
Agreement shall be sufficient if signed by any person
whom the
Calculation Agent reasonably believes to be a duly
authorized officer
or attorney-in-fact of the Company or the Trustee, as the
case may be;
(c) the Calculation Agent shall be obliged to
perform only such
duties as are set out specifically herein and any duties
necessarily
incidental thereto;
(d) the Calculation Agent, whether acting for itself
or in any
other capacity, may become the owner or pledgee of
Securities with the
same rights as it would have had if it were not acting
hereunder as
Calculation Agent; and
(e) the Calculation Agent shall incur no liability
hereunder
except for loss sustained by reason of its gross
negligence or willful
misconduct.
6. Resignation; Removal; Successor. (a) The Calculation
Agent may at
any time resign by giving written notice to the Company of
such intention
on its part, specifying the
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date on which its desired resignation shall become effective,
subject to
the appointment of a successor Calculation Agent and
acceptance of such
appointment by such successor Calculation Agent, as
hereinafter provided.
The Calculation Agent hereunder may be removed at any time by
the filing
with it of an instrument in writing signed by or on behalf of
the Company
and specifying such removal and the date when it shall become
effective.
Such resignation or removal shall take effect upon the
appointment by the
Company, as hereinafter provided, of a successor Calculation
Agent and the
acceptance of such appointment by such successor Calculation
Agent. In the
event a successor Calculation Agent has not been appointed and
has not
accepted its duties within 90 days of the Calculation Agent's
notice of
resignation, the Calculation Agent may apply to any court of
competent
jurisdiction for the designation of a successor Calculation
Agent.
(b) In case at any time the Calculation Agent shall
resign, or
shall be removed, or shall become incapable of acting, or
shall be adjudged
bankrupt or insolvent, or make an assignment for the benefit
of its
creditors or consent to the appointment of a receiver or
custodian of all
or any substantial part of its property, or shall admit in
writing its
inability to pay or meet its debts as they mature, or if a
receiver or
custodian of it or all or any substantial part of its property
shall be
appointed, or if any public officer shall have taken charge or
control of
the Calculation Agent or of its property or affairs, for the
purpose of
rehabilitation, conservation or liquidation, a successor
Calculation Agent
shall be appointed by the Company by an instrument in writing,
filed with
the successor Calculation Agent. Upon the appointment as
aforesaid of a
successor Calculation Agent and acceptance by the latter of
such
appointment, the Calculation Agent so superseded shall cease
to be
Calculation Agent hereunder.
(c) Any successor Calculation Agent appointed
hereunder shall
execute, acknowledge and deliver to its predecessor, to the
Company and to
the Trustee an instrument accepting such appointment hereunder
and agreeing
to be bound by the terms hereof, and thereupon such successor
Calculation
Agent, without any further act, deed or conveyance, shall
become vested
with all the authority, rights, powers, trusts, immunities,
duties and
obligations of such predecessor with like effect as if
originally named as
Calculation Agent hereunder, and such predecessor, upon
payment of its
charges and disbursements then unpaid, shall thereupon become
obligated to
transfer, deliver and pay over, and such successor Calculation
Agent shall
be entitled to receive, all moneys, securities and other
property on
deposit with or held by such predecessor, as Calculation Agent
hereunder.
(d) Any corporation into which the Calculation Agent
hereunder
may be merged or converted or any corporation with which the
Calculation
Agent may be consolidated, or any corporation resulting from
any merger,
conversion or consolidation to which the Calculation Agent
shall be a
party, or any corporation to which the Calculation Agent shall
sell or
otherwise transfer all or substantially all of the assets and
business of
the Calculation Agent shall be the successor Calculation Agent
under this
Agreement without the execution or filing of any paper or any
further act
on the part of any of the parties hereto.
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7. Certain Definitions. Terms not otherwise defined
herein or in Annex
A hereto are used herein as defined in the Indenture or the
Securities.
8. Indemnification. The Company will indemnify the
Calculation Agent
against any losses or liability which it may incur or sustain
in connection
with its appointment or the exercise of its powers and duties
hereunder
except such as may result from the gross negligence or willful
misconduct
of the Calculation Agent or any of its agents or employees.
The Calculation
Agent shall incur no liability and shall be indemnified and
held harmless
by the Company for, or in respect of, any action taken or
suffered to be
taken in good faith by the Calculation Agent in reliance upon
written
instructions from the Company.
9. Notices. Any notice required to be given hereunder
shall be
delivered in person, sent (unless otherwise specified in this
Agreement) by
letter, telex or facsimile transmission or communicated by
telephone
(confirmed in a writing dispatched within two Business Days),
(a) in the
case of the Company, to it at 745 Seventh Avenue, New York,
New York 10019
(facsimile: (646) 758-3204) (telephone: (212) 526-7000),
Attention:
Treasurer, with a copy to 399 Park Avenue, New York, New York
10022
(facsimile: (212) 526-0357
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