Exhibit 4.12
CALCULATION AGENCY
AGREEMENT
CALCULATION AGENCY AGREEMENT, dated
as of May 18, 2005 (this “ Agreement ”),
between Lehman Brothers Holdings Inc. (the “ Company
”) and Lehman Brothers Inc., as Calculation Agent.
WHEREAS, the Company proposes to
issue and sell its Risk Adjusting Equity Range Securities
Plus SM (or RANGERS Plus SM ),
Performance Linked to the Value of a Stock Index (the “
Notes ”) from time to time;
WHEREAS, the terms of each series of
the Notes will be described in a pricing supplement (in connection
with the performance by the Calculation Agent of its services
hereunder with respect to a particular series of the Notes, the
prospectus supplement relating to such particular series of the
Notes is referred to herein as the “ relevant Pricing
Supplement ”) and a prospectus supplement, dated
May 18, 2005, to the prospectus dated May 18, 2005, as
supplemented by a prospectus supplement dated May 18,
2005;
WHEREAS, the Notes 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 each series of the Notes (in connection with the
performance by the Calculation Agent of its services hereunder with
respect to a particular series of the Notes, such particular series
of the Notes is referred to herein as the “ relevant
Notes ”);
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, the Redemption Payment Amount or the
Optional Repurchase Amount with respect to any series of the Notes,
the Calculation Agent shall determine the applicable Payment Amount
in accordance with the terms of the relevant Notes and this
Agreement and notify the Trustee of its determination. In
addition, the Calculation Agent shall also be responsible for
determining each of the following items for each series of the
Notes, to the extent applicable:
(a)
the Final Index Level and any
adjustments thereto;
(b)
whether and what adjustments to any
Relevant Index should be made,
(c)
any successor or substitute index if
publication of a Relevant Index is discontinued, and
(d)
the Final Index Level of the
Relevant Index if (i) the publisher of the Relevant Index
discontinues publication of such index and the Calculation Agent
determines that no successor or substitute index is available at
such time, (ii) the publisher of such Relevant Index fails to
calculate and publish a closing level for the Relevant Index on the
Valuation Date in accordance with customary practice or
(iii) the circumstances described in the last proviso of the
definition of the term “Valuation Date” in the relevant
Notes occur;
(e)
whether a Market Disruption Event
has occurred;
(f)
the Amortized Principal
Amount;
(g)
the amount payable upon repayment of
the Notes on any Optional Reset Date;
(h)
whether a particular day is a
Scheduled Trading Day;
(i)
the applicable Valuation Date;
and
(j)
any other calculation, determination
or adjustment specified as being made by the Calculation Agent in
this Agreement, the relevant Pricing Supplement or the relevant
Notes.
The Calculation Agent shall notify
the Trustee of all such calculations, determinations and adjustment
or if a Market Disruption Event with respect to a series of Notes
has occurred. Annex A hereto sets forth the procedures the
Calculation Agent will use to determine the information described
in this Section 2 with respect to a series of
Notes.
3.
Calculations
. Any calculation or
determination by the Calculation Agent pursuant hereto shall be
made at the sole discretion of the Calculation Agent and shall (in
the absence of manifest error) be final and binding. 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 and not
as an agent 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 Notes;
2
(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 who 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 Notes 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 wilful 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 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 n
