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Exhibit 4.40  


 
 

DECLARATION OF TRUST    
    
    OF    
    
    LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VII    
    


        DECLARATION OF TRUST, dated as of November 23, 2004, between Lehman Brothers Holdings Inc., a Delaware corporation, as Sponsor, Chase Manhattan Bank
USA, National Association, a national banking association organized under the laws of the United States of America, as the Delaware Trustee, JPMorgan Chase Bank, N.A, a national banking association
organized under the laws of the United States of America, as the initial Property Trustee, and Jeffrey A. Welikson, Barrett S. DiPaolo and Oliver Budde, as Regular Trustees (collectively
with the Delaware Trustee and the Property Trustee, the "Trustees"). The Sponsor and the Trustees hereby agree as follows: 


        1.     The
trust created hereby (the "Trust") shall be known as "Lehman Brothers Holdings Capital Trust VII," in which name the Trustees, or the Sponsor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts and sue and be sued. 


        2.     The
Sponsor hereby assigns, transfers, conveys and sets over to the Trustees the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge receipt of such amount in
trust from the Sponsor, which amount shall constitute the initial trust estate. The Trustees hereby declare that they will hold the trust estate in trust for the Sponsor. It is the intention of the
parties hereto that the Trust created hereby constitute a statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del C. Section 3801 et seq. (the
"Statutory Trust Act"), and that this document constitute the governing instrument of the Trust. The Trustees are hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in the form attached hereto. 


        3.     The
Sponsor and the Trustees will enter into an amended and restated Declaration of Trust, satisfactory to each such party (and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below)), to provide for the contemplated operation of the Trust created hereby and the issuance of preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be described therein. Prior to the execution and delivery of such amended and restated Declaration of Trust, the Trustees shall
not have any duty or obligation hereunder or with respect to the trust estate, except as otherwise required by applicable law or as may be necessary to obtain prior to such execution and delivery and
licenses, consents or approvals required by applicable law or otherwise. 


        4.     The
Sponsor and the Trustees hereby authorize and direct the Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to prepare for filing with
the Securities and Exchange Commission (the "Commission") (a) a Registration Statement on Form S-3 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to the 1933 Act Registration Statement, relating to the registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a Registration Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the registration of the Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national stock exchange or The Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Preferred Securities to be listed on any of
the Exchanges; (iii) to negotiate and execute an underwriting agreement among the Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale of the Preferred Securities,
substantially in the form included or to be incorporated as an exhibit to the 1933 Act Registration Statement and (iv) to execute and file such applications, reports, surety bonds, irrevocable
consents, appointments of attorneys for service of process and other papers and documents as shall be 







 



necessary
or desirable to register the Preferred Securities under the securities or "blue sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable. 


        It
is hereby acknowledged and agreed that in connection with any document referred to in clauses (i), (ii) and (iv) above, (A) any Regular Trustee (or his
attorneys-in-fact and agents or the Sponsor as permitted herein) is authorized to execute such document on behalf of the Trust, provided that the 1933 Act Registration
Statement and the 1934 Act Registration Statement shall be signed by all of the Regular Trustees, and (B) JPMorgan Chase Bank, N.A., and Chase Manhattan Bank USA, National Association, in their
capacities as Trustees of the Trust, shall not be required to join in any such filing or execute on behalf of the Trust any such document unless required by the rules and regulations of the
Commission, the Exchanges or state securities or blue sky laws, and in such case only to the extent so required. In connection with all of the foregoing, each Regular Trustee, solely in
such Regular Trustee's capacity as Trustee of the Trust, hereby constitutes and appoints Thomas A. Russo, Karen B. Corrigan and James J. Killerlane, and each of them, as such Regular
Trustee's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such Regular Trustee, in such Regular Trustee's name, place and
stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to the 1933 Act Registration Statement and the 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, the Exchanges and administrators of state securities or blue sky laws, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue hereof. 


        5.     This
Declaration of Trust may be executed in one or more counterparts. 


        6.     The
number of Trustees initially shall be five (5) and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument
signed by the Sponsor which may increase or decrease the number of Trustees; provided that, to the extent required by the Statutory Trust Act, one Trustee shall be an entity that has its principal
place of business in the State of Delaware. Subject to the foregoing, the Sponsor is entitled to appoint or remove without cause any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor. 


[Remainder of page intentionally left blank] 


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        IN
WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust to be Duly executed as of the day and year first above written. 



	LEHMAN BROTHERS HOLDINGS INC.,

as Sponsor	 	 
	

By:	
 	

/s/  BARRETT S. DIPAOLO      
	
 	

 
	Name:	 	Barrett S. DiPaolo	 	 
	Title:	 	Vice President	 	 
	

CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,

as Delaware Trustee
	

By:	
 	

/s/  TAI BILL LEE      
	
 	

 
	Name:	 	Tai Bill Lee	 	 
	Title:	 	Vice President	 	 
	

JPMORGAN CHASE BANK, N.A.,

as Property Trustee	
 	

 
	

By:	
 	

/s/  DIANE P. LEDGER      
	
 	

 
	Name:	 	Diane P. Ledger	 	 
	Title:	 	Assistant Vice President	 	 
	

By:	
 	

/s/  JEFFREY A. WELIKSON      
 Jeffrey A. Welikson, as Regular Trustee	
 	

 
	

By:	
 	

/s/  BARRETT S. DIPAOLO      
 Barrett S. DiPaolo, as Regular Trustee	
 	

 
	

By:	
 	

/s/  OLIVER BUDDE      
 Oliver Budde, as Regular Trustee	
 	

 




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DECLARATION OF TRUST OF LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VII