Exhibit 10.5
ASSIGNMENT AND ASSUMPTION
AGREEMENT
This Assignment and Assumption
Agreement (this “ Assignment and Assumption Agreement
”) is made and entered into as of
September , 2008, by and between
Nomura Holdings Inc. (on behalf of itself and the entities that are
its Affiliates (as defined in the BarCap TSA) listed in Schedule 2
to the Nomura Purchase Agreement, as same may be amended or
supplemented from time to time) (“ Nomura ” and
each a “ Purchaser ”), and Lehman Brothers
Holdings Inc., a Delaware corporation (“ LBHI
”).
WHEREAS, LBHI is a party to that
certain Transition Services Agreement dated as of
September 22, 2008 (the “ BarCap TSA ”), by
and between LBHI and Barclays Capital Inc. (“ BarCap
”), pursuant to which, among other things, (i) BarCap
agreed to provide, or cause to be provided, to LBHI (and its
Affiliates as defined in the BarCap TSA as of the date thereof)
(collectively, the “LBHI Entities”), certain services,
use of facilities and other assistance on a transitional basis and
(ii) LBHI agreed to provide, or cause to be provided, to
BarCap (and its Affiliates as defined in the BarCap TSA as of the
date thereof) certain services, use of facilities and other
assistance on a transitional basis;
WHEREAS, Nomura is a party to that
certain International Asset Sale Agreement dated as of
September , 2008 (the “
Nomura Purchase Agreement ”), by and among the HK
Insolvency Officers, the Singapore Insolvency Officers, the
Australian Insolvency Officers, the Sellers listed in Schedule 1
thereto (the “Sellers”) and the Purchasers listed in
Schedule 2 thereto (the “Purchasers”), whereby the
Sellers agreed to sell all of the Sale Assets and the Purchasers
agreed to purchase all of the Sale Assets and make offers of
employment to the Transferred Employees (which assets and
employees, for the avoidance of doubt, do not include (i) the
assets and employees of the IMD Business, as such term is defined
in the BarCap TSA, nor (ii) the assets or employees of Lehman
Brothers Holdings plc, Lehman Brothers Limited, LB UK RE Holdings
Limited or Lehman Brothers International (Europe); nor
(iii) any assets or employees of BarCap pursuant to the Asset
Purchase Agreement, dated as of September 16, 2008, between
LBHI, Lehman Brothers Inc., LB 745 LLC and BarCap (as amended and
supplemented, and together with any other agreements executed among
such parties, the “BarCap Purchase
Agreement”));
WHEREAS, pursuant to
Section 9.10(a)(i)(B) of the BarCap TSA, LBHI has the
right to assign the LBHI Entities’ rights and
obligations under the BarCap TSA, in whole or in part, to certain
acquirers of the Retained LBHI Business (as such term is defined in
the BarCap TSA), which, the parties agree for the purposes of this
Assignment and Assumption Agreement, includes the Sale Assets and
the Transferred Employees;
WHEREAS, for purposes of this
Assignment and Assumption Agreement, each party agrees that the
LBHI Entities shall be deemed to include the Sellers even if there
is ambiguity regarding the fact that such Sellers could be
construed as no longer being under the “control” of
LBHI due to the appointment of liquidators or provisional
liquidators; and
WHEREAS, the parties hereto desire
to execute this Assignment and Assumption Agreement to evidence
(i) the assignment from LBHI to the Purchasers of all rights,
title and
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