Exhibit 4.1


 


Execution Copy


 


 


 


LEHMAN BROTHERS INC.,


 


LEHMAN BROTHERS HOLDINGS INC.,


 


as Guarantor,


 


AND


 


J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION,


 


as Trustee


 


 


 












 


THIRD
SUPPLEMENTAL INDENTURE


 


Dated as of
February 27, 2004


 












 

















 


THIRD SUPPLEMENTAL INDENTURE, dated as of February 27, 2004 (the
“Supplemental Indenture”), among LEHMAN BROTHERS INC., a corporation duly
organized and existing under the laws of the State of Delaware (the “Company”),
LEHMAN BROTHERS HOLDINGS INC., a corporation duly organized and existing under
the laws of the State of Delaware, as guarantor (the “Guarantor”), and J.P.
MORGAN TRUST COMPANY, NATIONAL ASSOCIATION (as successor in interest to Bank
One Trust Company, N.A., successor in interest to The First National Bank of
Chicago), a national banking association duly organized and existing under the
laws of the United States, as trustee (the “Trustee”).


 


RECITALS


 


The Company has duly authorized the execution and delivery of an
Indenture, dated as of March 1, 1996, between the Company and the Trustee, as
amended and supplemented by the First Supplemental Indenture dated as of April
19, 1996 between the Company and the Trustee and the Second Supplemental
Indenture dated as of October 14, 2003 (the “Second Supplemental Indenture”),
between the Company, the Guarantor and the Trustee (together, the “Indenture”),
to provide for the issuance from time to time of its unsecured senior
subordinated debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”) unlimited as to principal amount, to
bear such rates of interest, to mature at such time or times, to be issued in
one or more series and to have such other provisions as in the Indenture
provided; and


 


The Company and the Guarantor have duly authorized the execution and
delivery of this Supplemental Indenture to correct Section 1.12 of the Second
Supplemental Indenture, with the approval of the Exchange pursuant to Section
14.6 of the Indenture.


 


All acts and things necessary to make this Supplemental Indenture a
valid agreement of the Company and of the Guarantor, in accordance with its
terms and with the terms of the Indenture, have been done and performed.


 


NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:


 


For and in consideration of the premises, and of the sum of one dollar
duly paid to the Company and the Guarantor by the Trustee at the execution and
delivery of these presents, the receipt whereof is hereby acknowledged, the
Company and the Guarantor covenant and agree, for the equal and proportionate
benefit of all holders of the Securities with the Trustee to supplement the
Indenture as follows:


 


Section 1.          AMENDMENT


 


1.1           Amendment to
Section 7.1 of the Indenture. 
Section 1.12 of the Second Supplemental Indenture is hereby deleted and
Section 7.1 of the Indenture is hereby amended by adding a new “Event of
Acceleration” as a new clause (h), such that Section 7.1 shall now read as
follows (changes to the language of the Section have been underscored):


 


“SECTION 7.1 
Events of Acceleration and Default Defined.


 


2

















 


The occurrence after the date hereof, with respect to Securities of any
series, of any of the events specified in clause (a) through (d) or in
clause (h) below shall constitute an “Event of Acceleration” with respect
to Securities of such series, and the occurrence after the date hereof of any
of the events specified in clauses (e) through (g) below shall constitute an
“Event of Default” with respect to Securities of such series, that is to say:


 


(a)   failure to make payment of
any instalment of interest, if any, upon any Securities of such series as and
when the same shall become due and payable, and continuance of such failure for
a period of 30 days (whether or not such failure shall be by reason of the
operation of the provisions of Article Four); or


 


(b)   failure to make payment of
the principal of (and premium, if any, on) any Securities of such series as and
when the same shall become due and payable, or would have become due and
payable but for the provisions of Section 7.2(b) or Section 12.3, at a Stated
Maturity or upon optional redemption (and whether or not such failure shall be
by reason of the operation of the provisions of Article Four or Section 12.3);
or


 


(c)   failure on the part of the
Company to duly observe or perform the provisions of Section 5.5 for a period
of 60 consecutive days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company by the
Trustee for the Securities of such series, or to the Company and such Trustee
by the Holders of at least 25% in aggregate principal amount of Securities of
such series at the time outstanding; or


 


(d)   any Indebtedness of the
Company exceeding $5,000,000 in the aggregate, in the case of Securities
initially issued prior to May 27, 1994, or exceeding $10,000,000 in the
aggregate, in the case of Securities initially issued on or after May 27, 1994,
and constituting part of the Company’s net capital shall become due and payable
prior to the date or dates on which the same would otherwise become due and
payable solely by reason of the existence of an event of default or
acceleration applicable to such Indebtedness (but not including the exercise of
any “put” or similar right accorded to any holder of such Indebtedness), and
such acceleration shall not be rescinded or annulled or such accelerated
Indebtedness shall not be refunded with Indebtedness constituting net capital
having no earlier maturity than the accelerated Indebtedness, all within 15
days after written notice to the Company requiring such action from the Trustee
for such series or to the Company and to the Trustee for such series from the
Holders of not less than 25% in aggregate principal amount of Securities of
such series then outstanding; or


 


(e)   if the Company is not
operating pursuant to the alternative net capital requirements provided for in
paragraph (f) of the Net Capital Rule, the ratio of aggregate indebtedness of
the Company to its net capital as determined pursuant to the Net Capital Rule
shall exceed 15 to 1 (or such greater ratio as may be established by the
Exchange (or any other domestic exchange, board of trade, clearing association
or similar organization of which the Company is a member) or a domestic
governmental agency or other body having appropriate authority as the minimum
ratio that a broker or dealer is required to maintain in order to conduct
business) for a period of not less than 15 consecutive business days, commencing
on the date the Company first determines and notifies the


 


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Exchange, or the Exchange or Securities and Exchange Commission first
determines and notifies the Company, that such ratio is in excess of 15 to 1 or
such greater ratio, as the case may be; or, if the Company is operating
pursuant to the alternative net capital requirements provided for in paragraph
(f) of the Net Capital Rule, its net capital shall be less than 2 percent of
aggregate debit items computed in accordance with the Net Capital Rule (or such
lesser amount as may be established by the Exchange (or any other domestic
exchange, board of trade, clearing association or similar organization of which
the Company is a member) or a domestic governmental agency or body having
appropriate jurisdiction as the minimum amount that a broker or dealer is
required to maintain in order to conduct business) for a period of not less
than 15 consecutive business days, commencing on the date the Company first
determines and notifies the Exchange, or the Exchange or the Securities and
Exchange Commission first determines and notifies the Company, that its net
capital is less than such amount or such lesser amount, as the case may be; or


 


(f)    the making of an
application by SIPC for a decree adjudicating that customers of the Company are
in need of protection under SIPA and seeking the appointment of a receiver or
trustee or similar officer of the Company and the failure of the Company to
obtain the dismissal of such application within 30 days; or


 


(g)   the dissolution or
insolvency of the Company or the making of an assignment for the benefit of
creditors by the Company or the commencement of any proceedings (by petition,
application, answer, consent or otherwise) by the Company to be adjudicated a
bankrupt or for the appointment of a receiver or trustee or similar officer for
it or for a substantial part of its property or for reorganization, an
arrangement, composition or other relief under the Bankruptcy Act or the taking
of corporate action by the Company for any such purpose, or a liquidation
pursuant to SIPA or otherwise, a liquidation deemed to have commenced under
subsection (b) of Section 7.2, any other marshalling of the assets or
liabilities of the Company or the commencement against the Company of any of
the aforementioned proceedings and in such latter case the consent thereto by
the Company or its admission of the material allegations thereof or the
continuance of such proceedings undismissed for a  period of 60 days; or


 


(h)  the dissolution or
insolvency of the Guarantor or the making of an assignment for the benefit of
creditors by the Guarantor or the commencement of any proceedings (by petition,
application, answer, consent or otherwise) by the Guarantor to be adjudicated a
bankrupt or for the appointment of a receiver or trustee or similar officer for
it or for a substantial part of its property or for reorganization, an
arrangement, composition or other relief under the Bankruptcy Act or the taking
of corporate action by the Guarantor for any such purpose, or any marshalling
of the assets or liabilities of the Guarantor or the commencement against the
Guarantor of any of the aforementioned proceedings and in such latter case the
consent thereto by the Guarantor or its admission of the material allegations
thereof or the continuance of such proceedings undismissed for a period of 60
days.”


 


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1.2           Amendment
to Section 1.5 of the Indenture. 
Section 1.5 of the Indenture is hereby amended by modifying the heading
and adding a new clause (3), such that Section 1.5 shall now read as follows
(changes to the language of the Section have been underscored):


 


“SECTION 1.5  Notices, Etc., to Trustee, Company and
Exchange.


 


Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished to, or filed
with,


 


(1)   the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, or


 


(2)   the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company, or


 


(3)   the
Exchange by the Company (including any notice prior to any potential
cancellation, termination, rescission or modification of this Indenture or the
Securities requiring the prior written consent of the Exchange pursuant to the
fourth paragraph of Section 14.6) shall be given to the Exchange at the
following address so long as the Exchange is The New York Stock Exchange, Inc.:


 


New York Stock Exchange, Inc.


Surveillance Director


Member Firm Regulation


Unit 3


20 Broad Street


New York, NY 10005


 


 


Section 2.          MISCELLANEOUS


 


2.1           Continuance of
Indenture; Confirmation and Ratification of Second Supplemental Indenture.  This Supplemental Indenture supplements the
Indenture and shall be a part of and subject to all the terms thereof.  The Second Supplemental Indenture is hereby
confirmed and ratified by the parties hereto as supplemented by this
Supplemental Indenture.  The Indenture,
as supplemented by this Supplemental Indenture, shall continue in full force
and effect.


 


2.2           Defined Terms.  All capitalized terms used in this
Supplemental Indenture which are defined in the Indenture, but not otherwise
defined herein, shall have the same meanings assigned to them in the Indenture.


 


2.3           Conflict with
Trust Indenture Act. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with the duties imposed by any of Sections 310
through 317,


 


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inclusive, of
the Trust Indenture Act through the operation of Section 318(c) thereof, such
imposed duties shall control.


 


2.4           Separability
Clause.  In case any provision in
this Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


 


2.5           Benefits of
Indenture. Nothing in this Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders any benefit or any legal or equitable right, remedy
or claim under this Supplemental Indenture.


 


2.6           Governing Law.  This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.


 


2.7           The Trustee.  The recitals contained herein shall be taken
as the statements of the Company and the Guarantor, and the Trustee assumes no
responsibility for their correctness. 
The Trustee makes no representations as to the validity or sufficiency
of this Supplemental Indenture.


 


2.8           Successors and
Assigns of Company and Guarantor Bound By Supplemental Indenture. All the
covenants, stipulations, promises and agreements contained in this Supplemental
Indenture by or on behalf of the Company or the Guarantor shall bind their
successors and assigns, whether so expressed or not, and the provisions hereof
shall bind the heirs, executors, administrators, successors and assigns of the
Holders.


 


2.9           Acts of Board,
Committee or Officer of Successor Corporation Valid. Any act or proceeding
by any provision of this Supplemental Indenture authorized or required to be
done or performed by any board, committee or officer of the Company or the
Guarantor shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful successor of the Company or the Guarantor, as the case may be.


 


2.10         Counterparts.  This Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.


 


J.P. Morgan Trust Company, National Association hereby accepts the
trusts in this Supplemental Indenture declared and provided, upon the terms and
conditions hereinabove set forth.


 


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IN WITNESS WHEREOF, Lehman Brothers Inc. has caused this Supplemental
Indenture to be signed by its Chairman of the Board, one of its Vice Chairmen
of the Board, its President, its Treasurer or one of its Vice Presidents, Lehman
Brothers Holdings Inc. has caused this Supplemental Indenture to be signed by
its Chairman of the Board, one of its Vice Chairmen of the Board, its
President, its Treasurer or one of its Vice Presidents, and J.P. Morgan Trust
Company, National Association, as Trustee, has caused this Supplemental
Indenture to be signed by one of its authorized officers, as of the day and
year first above written.


 


 


	
   

  	
  LEHMAN
  BROTHERS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LEHMAN BROTHERS HOLDINGS INC.,

  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


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