Exhibit
4.05


 




 


 





GUARANTEE AGREEMENT


 


Lehman Brothers Holdings Capital Trust VI


 


Dated as of January 18, 2005


 




 





 





















 


CROSS
REFERENCE TABLE*


 


	
  Section of Trust

  Indenture Act of

  1939, as amended

  	
   

  	
  Section of

  Guarantee

  Agreement

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  4.1(a)

  
	
  310(b)

  	
   

  	
  2.8;
  4.1(c)

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  2.2(b)

  
	
  311(b)

  	
   

  	
  2.2(b)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  2.2(a);
  2.9

  
	
  312(b)

  	
   

  	
  2.2(b);
  2.9

  
	
  312(c)

  	
   

  	
  2.9

  
	
  313(a)

  	
   

  	
  2.3

  
	
  313(b)

  	
   

  	
  2.3

  
	
  313(c)

  	
   

  	
  2.3

  
	
  313(d)

  	
   

  	
  2.3

  
	
  314(a)

  	
   

  	
  2.4

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  2.5

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  2.5

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  3.1(d);
  3.2(a)

  
	
  315(b)

  	
   

  	
  2.7(a)

  
	
  315(c)

  	
   

  	
  3.1(c)

  
	
  315(d)

  	
   

  	
  3.1(d)

  
	
  316(a)

  	
   

  	
  2.6;
  5.4(a)

  
	
  316(b)

  	
   

  	
  5.3

  
	
  316(c)

  	
   

  	
  Inapplicable

  
	
  317(a)

  	
   

  	
  2.10

  
	
  317(b)

  	
   

  	
  Inapplicable

  
	
  318(a)

  	
   

  	
  2.1(b)

  



 










*              This Cross-Reference Table does not
constitute part of the Agreement and shall not have any bearing upon the
interpretation of any of its terms or provisions.


 


i





















 


TABLE
OF CONTENTS


 


	
  SECTION 1
  INTERPRETATION AND DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  1.1.

  	
  Interpretation and
  Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION 2 TRUST INDENTURE
  ACT

  	
   

  
	
   

  	
   

  
	
  2.1.

  	
  Trust Indenture Act;
  Application

  	
   

  
	
   

  	
   

  	
   

  
	
  2.2.

  	
  Lists of Holders of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  2.3.

  	
  Reports
  by Guarantee Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  2.4.

  	
  Periodic Reports to
  Guarantee Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  2.5.

  	
  Evidence of Compliance
  with Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
  2.6.

  	
  Guarantee Event of
  Default; Waiver

  	
   

  
	
   

  	
   

  	
   

  
	
  2.7.

  	
  Guarantee Event of Default; Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  2.8.

  	
  Conflicting
  Interests

  	
   

  
	
   

  	
   

  	
   

  
	
  2.9.

  	
  Disclosure of Information

  	
   

  
	
   

  	
   

  	
   

  
	
  2.10.

  	
  Guarantee
  Trustee May File Proofs of Claim

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3 POWERS, DUTIES AND RIGHTS OF
  GUARANTEE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Powers and
  Duties of Guarantee Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  3.2.

  	
  Certain Rights of
  Guarantee Trustee.

  	
   

  
	
   

  	
   

  	
   

  
	
  3.3.

  	
  Not
  Responsible for Recitals or Issuance of Guarantee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4 GUARANTEE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Guarantee Trustee;
  Eligibility

  	
   

  
	
   

  	
   

  	
   

  
	
  4.2.

  	
  Appointment,
  Removal and Resignation of Guarantee Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5 GUARANTEE

  	
   

  
	
   

  	
   

  
	
  5.1.

  	
  Guarantee

  	
   

  
	
   

  	
   

  	
   

  
	
  5.2.

  	
  Waiver of Notice and Demand

  	
   

  



 


ii





















 


	
  5.3.

  	
  Obligations
  Not Affected

  	
   

  
	
   

  	
   

  	
   

  
	
  5.4.

  	
  Rights of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  5.5.

  	
  Guarantee
  of Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  5.6.

  	
  Subrogation

  	
   

  
	
   

  	
   

  	
   

  
	
  5.7.

  	
  Independent
  Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6 LIMITATION OF TRANSACTIONS;
  SUBORDINATION

  	
   

  
	
   

  	
   

  
	
  6.1.

  	
  Limitation of Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  6.2.

  	
  Ranking

  	
   

  
	
   

  	
   

  	
   

  
	
  6.3.

  	
  Subordination of
  Common Securities

  	
   

  
	
   

  	
   

  
	
  SECTION 7 TERMINATION

  	
   

  
	
   

  	
   

  
	
  7.1.

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8 INDEMNIFICATION

  	
   

  
	
   

  	
   

  
	
  8.1.

  	
  Exculpation

  	
   

  
	
   

  	
   

  	
   

  
	
  8.2.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9 MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Successors
  and Assigns

  	
   

  
	
   

  	
   

  	
   

  
	
  9.2.

  	
  Amendments

  	
   

  
	
   

  	
   

  	
   

  
	
  9.3.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  9.4.

  	
  Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  9.5.

  	
  Governing Law

  	
   

  



 


iii





















 


GUARANTEE AGREEMENT


 


This GUARANTEE AGREEMENT (the “Guarantee”), dated as
of January 18, 2005, is executed and delivered by Lehman Brothers Holdings
Inc., a Delaware corporation (the “Guarantor”), and JPMorgan Chase Bank, N.A.,
as trustee (the “Guarantee Trustee”), for the benefit of the Holders (as
defined herein) from time to time of the Securities (as defined herein) of Lehman
Brothers Holdings Capital Trust VI, a Delaware statutory trust (the “Trust”).


 


W  I  T  N  E  S
S  E  T  H :


 


WHEREAS, pursuant to the
Declaration (as defined herein), the Trust may initially issue an unlimited
amount of preferred securities, having a liquidation amount of $25 per security
and designated the 6.24% Preferred Securities of the Trust, Series N (the
“Preferred Securities”), and common securities, having a liquidation amount of
$25 per security and designated the 6.24% Common Securities of the Trust (the
“Common Securities” and, together with the Preferred Securities, the
“Securities”);


 


WHEREAS, as incentive for
the Holders to purchase the Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth in this Guarantee, to pay to
the Holders of the Securities the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein; and
that if a Trust Enforcement Event (as defined herein) has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under this Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Guarantee.


 


NOW, THEREFORE, in
consideration of the purchase by each Holder of Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee for the benefit of the Holders.


 


SECTION 1

INTERPRETATION AND DEFINITIONS


 


1.1.          Interpretation
and Definitions.  In
this Guarantee, unless the context otherwise requires:


 


(a)           capitalized terms used in this Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;


 


(b)           a term defined anywhere in this Guarantee
has the same meaning throughout;


 


(c)           all references to “the Guarantee” or
“this Guarantee” are to this Guarantee as modified, supplemented or amended
from time to time;


 





















 


(d)           all references in this Guarantee to
Articles, Sections and Recitals are to Articles, Sections and Recitals of this
Guarantee, unless otherwise specified;


 


(e)           unless otherwise defined in this
Guarantee, a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee;


 


(f)            a reference to the singular includes the
plural and vice versa and a reference to any masculine form of a term shall
include the feminine form of a term, as applicable; and


 


(g)           the following terms have the following
meanings:


 


“Affiliate”
has the same meaning as given to that term in Rule 405 of the Securities Act of
1933, as amended, or any successor rule thereunder.


 


“Business
Day” has the meaning specified in the Declaration.


 


“Common
Securities” has the meaning specified in the Recitals hereto.


 


“Corporate
Trust Office” means the principal office of the Guarantee Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date of execution of this Guarantee is located at 4 New York
Plaza, 15th Floor, New York, New York 10004.


 


“Covered
Person” means a Holder or beneficial owner of Securities.


 


“Debentures”
means the series of subordinated deferrable interest debentures to be issued by
the Guarantor designated the 6.24% Subordinated Deferrable Interest Debentures
due 2054 held by the Property Trustee (as defined in the Declaration) of the
Trust.


 


“Declaration”
means the Amended and Restated Declaration of Trust, dated as of January 18,
2005, as amended, modified or supplemented from time to time, among the
trustees of the Trust named therein, the Guarantor, as sponsor, and the
Holders, from time to time, of undivided beneficial ownership interests in the
assets of the Trust.


 


“Global
Security” means a fully registered, global Preferred Security.


 


“Guarantee
Event of Default” means a default by the Guarantor on any of its payment or
other obligations under this Guarantee.


 


“Guarantee
Payments” means the following payments or distributions, without duplication,
with respect to the Securities, to the extent not paid by or on behalf of the
Trust:  (i) any accumulated and
unpaid Distributions (as defined in the Declaration) that are required to be
paid on such Securities to the extent the Trust has sufficient funds available
therefor at the time, (ii) the redemption price, including all accumulated and
unpaid Distributions to the date of redemption, with respect to any Securities
called for redemption by the Trust, to the extent the Trust shall have
sufficient funds available therefor at the time or (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust (other than in
connection with the


 


2





















 


distribution of Debentures to the Holders in
exchange for Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid
Distributions on the Securities to the date of payment, to the extent the Trust
has sufficient funds available therefor and (b) the amount of assets of the
Trust remaining available for distribution to Holders in liquidation of the
Trust (in either case, the “Liquidation Distribution”).


 


“Guarantee
Trustee” means JPMorgan Chase Bank, N.A., until a Successor Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the terms of
this Guarantee and thereafter means each such Successor Guarantee Trustee.


 


“Holder”
means any holder of Securities, as registered on the books and records of the
Trust; provided, however, that, in determining whether the Holders of the
requisite percentage of Preferred Securities have given any request, notice,
consent or waiver hereunder, “Holder” shall not include the Guarantor or any
Affiliate of the Guarantor or any other obligor on the Preferred Securities;
and provided further, that in determining whether the Holders of the requisite
liquidation amount of Preferred Securities have voted on any matter provided
for in this Guarantee, then for the purpose of such determination only (and not
for any other purpose hereunder), if the Preferred Securities remain in the
form of one or more Global Certificates (as defined in the Declaration), the
term “Holders” shall mean the holder of the Global Certificate acting at the
direction of the Beneficial Owners (as defined in the Declaration).


 


“Indemnified
Person” means the Guarantee Trustee, any Affiliate of the Guarantee Trustee, or
any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Guarantee Trustee.


 


“Indenture”
means the Indenture, dated as of February 1, 1996, between the Guarantor and
JPMorgan Chase Bank, N.A. (as successor to The Chase Manhattan Bank (formerly
known as (Chemical Bank)), as trustee, as amended and supplemented by the First
Supplemental Indenture dated as of February 1, 1996, and by any other indenture
supplemental thereto pursuant to which the Debentures are to be issued to the
Property Trustee (as defined in the Declaration) of the Trust.


 


“Majority
in Liquidation Amount” means, except as provided in the terms of the Preferred
Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities,
voting together as a single class, or, as the context may require, Holders of
outstanding Preferred Securities or Holders of outstanding Common Securities,
voting separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Distributions
to the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class. 
In determining whether the Holders of the requisite amount of Securities
have voted, Securities which are owned by the Guarantor or any Affiliate of the
Guarantor or any other obligor on the Securities shall be disregarded for the
purpose of any such determination.


 


“Officers’
Certificate” means, with respect to any Person, a certificate signed on behalf
of such Person by two Authorized Officers (as defined in the Declaration) of
such Person.


 


3





















 


Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee shall include:


 


(a)           a statement that each officer signing the
Officers’ Certificate has read the covenant or condition and the definitions
relating thereto;


 


(b)           a brief statement of the nature and scope of
the examination or investigation undertaken by each officer on behalf of such
Person in rendering the Officers’ Certificate;


 


(c)           a statement that each such officer has made
such examination or investigation as, in such officer’s opinion, is necessary
to enable such officer on behalf of such Person to express an informed opinion
as to whether or not such covenant or condition has been complied with; and


 


(d)           a statement as to whether, in the opinion of
each such officer acting on behalf of such Person, such condition or covenant
has been complied with.


 


“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.


 


“Preferred
Securities” has the meaning specified in the Recitals hereto.


 


“Redemption
Price” has the meaning specified in the Declaration.


 


“Responsible
Officer” means, with respect to the Guarantee Trustee, any officer with direct
responsibility for the administration of this Guarantee and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with
the particular subject.


 


“Securities”
has the meaning specified in the Recitals hereto.


 


“Successor
Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1.


 


“Trust
Enforcement Event” in respect of the Securities means an Indenture Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended from time to
time, or any successor legislation.


 


4





















 


SECTION 2

TRUST INDENTURE ACT


 


2.1.          Trust
Indenture Act; Application. 
(a)  This Guarantee is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Guarantee and shall, to the extent applicable, be governed by such provisions.


 


(b)           If and to the extent that any provision
of this Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.


 


2.2.          Lists of
Holders of Securities. 
(a)  The Guarantor shall provide
the Guarantee Trustee (i) except while the Preferred Securities are represented
by one or more Global Securities at least one Business Day prior to the date
for payment of Distributions, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
(“List of Holders”) as of the record date relating to the payment of such
Distributions, and (ii) at any other time, within 30 days of receipt by the
Guarantor of a written request from the Guarantee Trustee for a List of Holders
as of a date no more than 15 days before such List of Holders is given to the
Guarantee Trustee; provided that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Guarantee Trustee by the
Guarantor.  The Guarantee Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it, provided that the Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.


 


(b)           The Guarantee Trustee shall comply with
its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.


 


2.3.          Reports by
Guarantee Trustee. 
Within 60 days after May 15 of each year (commencing with the year of
the first anniversary of the issuance of the Securities), the Guarantee Trustee
shall provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act (if any) in the form and in the manner
provided by Section 313 of the Trust Indenture Act.  The Guarantee Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.


 


2.4.          Periodic
Reports to Guarantee
Trustee.  The Guarantor shall provide to the Guarantee
Trustee such documents, reports and information as required by Section 314(a)
(if any) of the Trust Indenture Act and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314(a) of the Trust Indenture Act.


 


2.5.          Evidence
of Compliance with Conditions
Precedent.  The Guarantor shall provide to the Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. 
Any certificate or opinion required to be given by an officer pursuant
to Section 314(c)(1) may be given in the form of an Officers’ Certificate.


 


5





















 


2.6.          Guarantee
Event of Default; Waiver.  The
Holders of a Majority in Liquidation Amount of the Securities may, by vote or
written consent, on behalf of the Holders of all of the Securities, waive any
past Guarantee Event of Default and its consequences.  Upon such waiver, any such Guarantee Event of
Default shall cease to exist, and any Guarantee Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default
or Guarantee Event of Default or impair any right consequent thereon.


 


2.7.          Guarantee Event of Default; Notice. 
(a)  The Guarantee Trustee shall,
within 90 days after the occurrence of a Guarantee Event of Default, transmit
by mail, first class postage prepaid, to the Holders of the Securities, notices
of all Guarantee Events of Default actually known to a Responsible Officer of
the Guarantee Trustee, unless such defaults have been cured before the giving
of such notice; provided, that the Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Securities.


 


(b)            The Guarantee Trustee shall not be
deemed to have knowledge of any Guarantee Event of Default unless the Guarantee
Trustee shall have received written notice thereof or a Responsible Officer of
the Guarantee Trustee charged with the administration of the Declaration shall
have obtained actual knowledge thereof.


 


2.8.          Conflicting
Interests.  The
Declaration shall be deemed to be specifically described in this Guarantee for
the purposes of clause (i) of the first proviso contained in Section 310(b)(1)
of the Trust Indenture Act.  Nothing
herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act.  In determining
whether the Trustee has a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act with respect to the Securities or the Guarantees in
respect of such Securities, there shall be excluded (i) all series of
securities issued or issuable under the Indenture, (ii) (A) the Guarantee
Agreement, dated as of January 26, 1999, executed and delivered by Lehman
Brothers Holdings Inc. and The Chase Manhattan Bank for the benefit of the
holders identified therein of Lehman Brothers Holdings Capital Trust I, (B) the
Guarantee Agreement, dated as of April 20, 1999, executed and delivered by
Lehman Brothers Holdings Inc. and The Chase Manhattan Bank for the benefit of
the holders identified therein of Lehman Brothers Holdings Capital Trust II,
(C) the Guarantee Agreement, dated as of March 17, 2003, executed and delivered
by Lehman Brothers Holdings Inc. and JPMorgan Chase Bank for the benefit of the
holders identified therein of Lehman Brothers Holdings Capital Trust III, (D)
the Guarantee Agreement, dated as of October 31, 2003, executed and delivered
by Lehman Brothers Holdings Inc. and JPMorgan Chase Bank for the benefit of the
holders identified therein of Lehman Brothers Holdings Capital Trust IV, (E)
the Guarantee Agreement, dated as of April 22, 2004, executed and delivered by
Lehman Brothers Holdings Inc. and JPMorgan Chase Bank for the benefit of the
holders therein of Lehman Brothers Holdings Capital Trust V and (F) this
Guarantee and (iii) (A) the Amended and Restated Declaration of Trust, dated as
of January 26, 1999, by and among Lehman Brothers Holdings Inc., the Regular
Trustees named therein, The Chase Manhattan Bank, as initial Property Trustee
and Chase Manhattan Bank USA, National Association, as initial Delaware
Trustee, (B) the Amended and Restated Declaration of Trust, dated as of April
20, 1999, by and among Lehman Brothers Holdings Inc., the Regular


 


6





















 


Trustees named therein, The Chase Manhattan
Bank, as initial Property Trustee and Chase Manhattan Bank USA, National
Association, as initial Delaware Trustee, (C) the Amended and Restated
Declaration of Trust, dated as of March 17, 2003, by and among Lehman Brothers
Holdings Inc., the Regular Trustees named therein, JPMorgan Chase Bank, as
initial Property Trustee and Chase Manhattan Bank USA, National Association, as
initial Delaware Trustee, (D) the Amended and Restated Declaration of Trust,
dated as of October 31, 2003, by and among Lehman Brothers Holdings Inc., the
Regular Trustees named therein, JPMorgan Chase Bank, as initial Property
Trustee and Chase Manhattan Bank USA, National Association, as initial Delaware
Trustee, (E) the Amended and Restated Declaration of Trust, dated April 22,
2004, by and among Lehman Brothers Holdings Inc., the Regular Trustees named
therein, JPMorgan Chase Bank, as initial Property Trustee and Chase Manhattan
Bank USA, National Association, as initial Delaware Trustee and (F) the
Declaration.


 


2.9.          Disclosure
of Information.  The
disclosure of information as to the names and addresses of the Holders of the
Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, shall not be
deemed to be a violation of any existing law, or any law hereafter enacted
which does not specifically refer to Section 312 of the Trust Indenture Act,
nor shall the Guarantee Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.


 


2.10.        Guarantee Trustee May File Proofs of Claim.  Upon the occurrence of a
Guarantee Event of Default, the Guarantee Trustee is hereby authorized to (a)
recover judgment, in its own name and as trustee of an express trust, against
the Guarantor for the whole amount of any Guarantee Payments remaining unpaid
and (b) file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders of
the Securities allowed in any judicial proceedings relative to the Guarantor,
its creditors or its property.


 


SECTION 3

POWERS, DUTIES AND RIGHTS OF

GUARANTEE TRUSTEE


 


3.1.          Powers and Duties of Guarantee Trustee.


 


(a)           This Guarantee shall be held by the
Guarantee Trustee on behalf of the Trust for the benefit of the Holders of the
Securities, and the Guarantee Trustee shall not transfer this Guarantee to any
Person except a Holder of Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee.  The right, title and interest
of the Guarantee Trustee in and to this Guarantee shall automatically vest in
any Successor Guarantee Trustee, and such vesting and succession of title shall
be effective whether or not conveyance documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.


 


7





















 


(b)           If a Guarantee Event of Default actually
known to a Responsible Officer of the Guarantee Trustee has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit
of the Holders of the Securities.


 


(c)           The Guarantee Trustee, before the
occurrence of any Guarantee Event of Default and after the curing of all
Guarantee Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Guarantee, and no
implied covenants shall be read into this Guarantee against the Guarantee
Trustee.  In case a Guarantee Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6) and is actually known to a Responsible Officer of the Guarantee Trustee,
the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.


 


(d)           No provision of this Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:


 


(i)            prior to the occurrence of any Guarantee
Event of Default and after the curing or waiving of all such Guarantee Events
of Default that may have occurred:


 


(A)          the duties and obligations of the
Guarantee Trustee shall be determined solely by the express provisions of this
Guarantee, and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Guarantee, and no implied covenants or obligations shall be read into this
Guarantee against the Guarantee Trustee; and


 


(B)           in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee Trustee
and conforming to the requirements of this Guarantee; but in the case of any
such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they conform to
the requirements of this Guarantee;


 


(ii)           the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made;


 


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(iii)          the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee;
and


 


(iv)          no provision of this Guarantee shall
require the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee or
if the Guarantee Trustee shall have reasonable grounds for believing that an
indemnity, reasonably satisfactory to the Guarantee Trustee, against such risk
or liability is not reasonably assured to it under the terms of this Guarantee.


 


3.2.          Certain
Rights of Guarantee Trustee.


 


(a)           Subject to the provisions of Section 3.1:


 


(i)            The Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting upon,
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;


 


(ii)           Any direction or act of the Guarantor
contemplated by this Guarantee shall be sufficiently evidenced by an Officers’
Certificate;


 


(iii)          Whenever, in the administration of this
Guarantee, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers’ Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;


 


(iv)          The Guarantee Trustee shall have no duty
to see to any recording, filing or registration or any instrument (or any
rerecording, refiling or re-registration thereof);


 


(v)           The Guarantee Trustee may consult with
counsel, and the advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. 
Such counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. 
The Guarantee Trustee shall have the right at any time to


 


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seek instructions concerning the administration of
this Guarantee from any court of competent jurisdiction;


 


(vi)          The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Guarantee at the request or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Guarantee Trustee, against the costs, expenses (including
attorneys’ fees and expenses and the expenses of the Guarantee Trustee’s
agents, nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Guarantee Trustee; provided, that nothing contained in
this Section 3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of a Guarantee Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee;


 


(vii)         The Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;


 


(viii)        The Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the Guarantee
Trustee shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;


 


(ix)           Any action taken by the Guarantee Trustee
or its agents hereunder shall bind the Holders, and the signature of the
Guarantee Trustee or its agents alone shall be sufficient and effective to
perform any such action.  No third party
shall be required to inquire as to the authority of the Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of this
Guarantee, both of which shall be conclusively evidenced by the Guarantee
Trustee’s or its agent’s taking such action; and


 


(x)            Whenever in the administration of this
Guarantee the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (i) may request written instructions from the
Holders of a Majority in Liquidation Amount of the Securities, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
written instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such written instructions.


 


(b)           No provision of this Guarantee shall be
deemed to impose any duty or obligation on the Guarantee Trustee to perform any
act or acts or exercise any right,


 


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power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent to act in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation.  No permissive
power or authority available to the Guarantee Trustee shall be construed to be
a duty.


 


3.3.          Not Responsible for Recitals or Issuance of Guarantee.  The recitals contained in this
Guarantee shall be taken as the statements of the Guarantor, and the Guarantee
Trustee does not assume any responsibility for their correctness.  The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee.


 


SECTION 4

GUARANTEE TRUSTEE


 


4.1.          Guarantee
Trustee; Eligibility.


 


(a)           There shall be at all times a Guarantee
Trustee which shall:


 


(i)            not be an Affiliate of the Guarantor; and


 


(ii)           be a corporation organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia, or a corporation or other
Person permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia
authority.  If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.


 


(b)           If at any time the Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).


 


(c)           If the Guarantee Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.


 


4.2.          Appointment, Removal and Resignation of Guarantee
Trustee.


 


(a)           Subject to Section 4.2(b), unless a
Guarantee Event of Default shall have occurred and be continuing, the Guarantee
Trustee may be appointed or removed with or without cause at any time by the
Guarantor.


 


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(b)           The Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Guarantee Trustee and delivered to the Guarantor.


 


(c)           The Guarantee Trustee appointed to office
shall hold such office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. 
The Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take effect
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee Trustee.


 


(d)           If no Successor Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of removal or
resignation, the removed or resigning Guarantee Trustee may petition any court
of competent jurisdiction for appointment of a Successor Guarantee Trustee.  Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Guarantee
Trustee.


 


(e)           No Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Guarantee Trustee.


 


(f)            Upon termination of this Guarantee or
removal or resignation of the Guarantee Trustee pursuant to this Section 4.2,
the Guarantor shall pay to the Guarantee Trustee all amounts owing for fees and
reimbursement of expenses which have accrued to the date of such termination,
removal or resignation.


 


SECTION 5

GUARANTEE


 


5.1.          Guarantee.


 


The Guarantor irrevocably
and unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Trust), as and when
due, regardless of any defense, right of set-off or counterclaim that the Trust
may have or assert.  The Guarantor’s
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Trust to
pay such amounts to the Holders. 
Notwithstanding anything to the contrary herein, the Guarantor retains
all of its rights under the Indenture to (i) extend the interest payment
period on the Debentures and the Guarantor shall not be obligated hereunder to
make any Guarantee Payments during any Extension Period (as defined in the
certificate evidencing the Debentures) with respect to the Distributions (as
defined in the Declaration) on the Securities and (ii) change the maturity
date of the Debentures to the extent permitted by the Indenture.


 


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5.2.          Waiver of
Notice and Demand.


 


The Guarantor hereby waives
notice of acceptance of this Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.


 


5.3.          Obligations
Not Affected.


 


The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee shall be absolute
and unconditional and shall remain in full force and effect until the entire
liquidation amount of all outstanding Securities shall have been paid and such
obligation shall in no way be affected or impaired by reason of the happening
from time to time of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:


 


(a)           The release or waiver, by operation of
law or otherwise, of the performance or observance by the Trust of any express
or implied agreement, covenant, term or condition relating to the Securities to
be performed or observed by the Trust;


 


(b)           The extension of time for the payment by
the Trust of all or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the terms of the
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with the Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension of any
interest payment period on the Debentures or any change to the maturity date of
the Debentures permitted by the Indenture);


 


(c)           Any failure, omission, delay or lack of
diligence on the part of the Property Trustee or the Holders to enforce, assert
or exercise any right, privilege, power or remedy conferred on the Property
Trustee or the Holders pursuant to the terms of the Securities, or any action
on the part of the Trust granting indulgence or extension of any kind;


 


(d)           The voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Trust or any of the assets of the Trust;


 


(e)           Any invalidity of, or defect or
deficiency in, the Securities;


 


(f)            The settlement or compromise of any
obligation guaranteed hereby or hereby incurred; or


 


(g)           Any other circumstance whatsoever that
might otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.3 that


 


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the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.


 


There shall be no obligation
of the Guarantee Trustee or the Holders to give notice to, or obtain consent of
the Guarantor or any other Person with respect to the happening of any of the
foregoing.


 


No setoff, counterclaim,
reduction or diminution of any obligation, or any defense of any kind or nature
that the Guarantor has or may have against any Holder shall be available
hereunder to the Guarantor against such Holder to reduce the payments to it
under this Guarantee.


 


5.4.          Rights of
Holders.


 


(a)           The Holders of at least a Majority in
Liquidation Amount of the Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee or to direct the exercise of any
trust or power conferred upon the Guarantee Trustee under this Guarantee.


 


(b)           If the Guarantee Trustee fails to enforce
this Guarantee, then any Holder of Securities may, subject to the subordination
provisions of Section 6.2, institute a legal proceeding directly against the
Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee
without first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. 
In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder of Securities may, subject to the subordination provisions of Section
6.2, directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the principal
of or interest on the Debentures on or after the respective due dates specified
in the Debentures, and the amount of the payment will be based on the Holder’s
pro rata share of the amount due and owing on all of the Securities.  The Guarantor hereby waives any right or
remedy to require that any action on this Guarantee be brought first against
the Trust or any other person or entity before proceeding directly against the
Guarantor.


 


5.5.          Guarantee
of Payment.


 


This Guarantee creates a
guarantee of payment and not of collection.


 


5.6.          Subrogation.


 


The Guarantor shall be
subrogated to all (if any) rights of the Holders of Securities against the
Trust in respect of any amounts paid to such Holders by the Guarantor under
this Guarantee; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under
this Guarantee, if at the time of any such payment, any amounts are due and
unpaid under this Guarantee.  If any
amount shall be paid to the Guarantor in violation


 


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of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Guarantee Trustee for the benefit of the Holders.


 


5.7.          Independent
Obligations.


 


The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Trust
with respect to the Securities, and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee notwithstanding the occurrence of any event referred to
in subsections 5.3(a) through 5.3(g), inclusive, hereof.


 


SECTION 6

LIMITATION OF TRANSACTIONS; SUBORDINATION


 


6.1.          Limitation
of Transactions.


 


So long as any Securities
remain outstanding, if (i) there shall have occurred an event of default under
the Indenture with respect to the Debentures, (ii) there shall be a Guarantee
Event of Default or (iii) the Guarantor shall have given notice of its election
of an Extension Period as provided in the certificate evidencing the Debentures
and shall not have rescinded such notice, or such Extension Period or any
extension thereof shall be continuing, then the Guarantor shall not, and shall
not permit any subsidiary of the Guarantor, to (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Guarantor’s capital stock or
(y) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor that rank on a parity
with or junior in interest to the Debentures or make any guarantee payments
with respect to any guarantee by the Guarantor of the debt securities of any
subsidiary of the Guarantor if such guarantee ranks on a parity with or junior
in interest to the Debentures (other than (a) dividends or distributions in
common stock of the Guarantor, (b) payments under this Guarantee, (c) any
declaration of a dividend in connection with the implementation of a shareholders’
rights plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, and (d) purchases
of common stock related to the issuance of common stock or rights under any of
the Guarantor’s benefit plans).


 


6.2.          Ranking.


 


This Guarantee will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all other liabilities of
the Guarantor, (ii) on a parity with the most senior preferred or preference
stock now or hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred securities
of any Affiliate of the Guarantor and (iii) senior to the Guarantor’s common
stock.  In addition, at all times such
obligations will be structurally subordinated to the liabilities and
obligations of the Guarantor’s subsidiaries.


 


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6.3.          Subordination
of Common Securities


 


If a Trust Enforcement Event
has occurred and is continuing under the Declaration, the rights of the holders
of the Common Securities to receive Guarantee Payments hereunder shall be
subordinated to the rights of the Holders of the Preferred Securities to
receive Guarantee Payments under this Guarantee.


 


SECTION 7

TERMINATION


 


7.1.          Termination.


 


This Guarantee shall
terminate upon (i) full payment of the Redemption Price of all of the
Securities, (ii) distribution of the Debentures to the Holders of all of
the Securities or (iii) full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Trust.  Notwithstanding the foregoing, this Guarantee
will continue to be effective or will be reinstated, as the case may be, if at
any time any Holder of Securities must restore payment of any sums paid under
the Securities or under this Guarantee.


 


SECTION 8

INDEMNIFICATION


 


8.1.          Exculpation.


 


(a)           No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage, liability, expense or claim incurred by
reason of any act or omission performed or omitted by such Indemnified Person
in good faith in accordance with this Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person’s negligence or willful
misconduct with respect to such acts or omissions.


 


(b)           An Indemnified Person shall be fully
protected in relying in good faith upon the records of the Guarantor and upon
such information, opinions, reports or statements presented to the Guarantor by
any Person as to matters the Indemnified Person reasonably believes are within
such other Person’s professional or expert competence and who has been selected
with reasonable care by or on behalf of the Guarantor, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be
paid.


 


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8.2.          Indemnification.


 


The Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.  The obligation to indemnify as set forth in
this Section 8.2 shall survive the termination of this Guarantee.


 


SECTION 9

MISCELLANEOUS


 


9.1.          Successors
and Assigns.


 


All guarantees and
agreements contained in this Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Securities then outstanding.


 


9.2.          Amendments.


 


Except with respect to any
changes that do not materially adversely affect the rights of the Holders (in
which case no consent of the Holders will be required), this Guarantee may not
be amended without the prior approval of the Holders of not less than 66-2/3%
of the aggregate liquidation amount of the Securities.  The provisions of Section 11.2 of the
Declaration with respect to meetings of, and action by written consent of, the
Holders of the Securities apply to the giving of such approval.


 


9.3.          Notices.


 


All notices provided for in
this Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered by hand, telecopied or mailed by registered or
certified mail, as follows:


 


(a)           If given to the Guarantee Trustee, at the
Guarantee Trustee’s mailing address set forth below (or such other address as
the Guarantee Trustee may give notice of to the Guarantor and the Holders of
the Securities):


 


JPMorgan Chase Bank, N.A.


4 New York Plaza


15th Floor


New York, New York  10004


Attention:  Institutional Trust Services


Facsimile: (212) 623-6274


 


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(b)           If given to the Guarantor, at the
Guarantor’s mailing addresses set forth below (or such other address as the
Guarantor may give notice of to the Guarantee Trustee and the Holders of the
Securities):


 


Lehman Brothers Holdings
Inc.


399 Park Avenue


New York, New York  10022


Attention: Corporate Counsel


Facsimile:  (212) 526-0339


 


(c)           If given to any Holder of Securities, at
the address set forth on the books and records of the Trust.


 


All such notices shall be
deemed to have been given when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be delivered because of
a changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.


 


9.4.          Benefit.


 


This Guarantee is solely for
the benefit of the Holders of the Securities and, subject to Section 3.1(a), is
not separately transferable from the Securities.


 


9.5.          Governing Law.


 


THIS GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


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IN WITNESS WHEREOF, this
Guarantee is executed as of the day and year first above written.


 


	
   

  	
  LEHMAN BROTHERS HOLDINGS
  INC.,

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barrett S. DiPaolo

  	
   

  
	
   

  	
   

  	
  Name:   Barrett S. DiPaolo

  
	
   

  	
   

  	
  Title:     Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
  as Guarantee Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tai B. Lee

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


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