DECLARATION OF TRUST, dated as of November 9, 1998 between Lyondell
Chemical Company, a Delaware corporation, as Sponsor (the "Sponsor"), and The
First National Bank of Chicago, not in its individual capacity but solely as
trustee (the "Property Trustee"), First Chicago Delaware Inc., not in its
individual capacity but solely as trustee (the "Delaware Trustee"), and Kerry A.
Galvin, not in her individual capacity but solely as trustee (the Property
Trustee, Delaware Trustee and such individual as trustee, collectively the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The Delaware business trust created hereby shall be known as "Lyondell
Trust III", 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
Trust the sum of $10. The Trust hereby acknowledges receipt of such amount from
the Sponsor, which amount shall constitute the initial trust estate. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code (S) 3801 et seq. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Secretary of State of the State of Delaware in the form attached hereto in
accordance with the provisions of the Business Trust Act. The Trust is hereby
established by the Sponsor and the Trustees for the purposes of (i) issuing
preferred securities representing undivided beneficial interests in the assets
of the Trust ("Preferred Securities") in exchange for cash and investing the
proceeds thereof in junior subordinated debentures of the Sponsor, (ii) issuing
and selling common securities representing undivided beneficial interest in the
assets of the Trust to the Sponsor in exchange for cash and investing the
proceeds thereof in additional junior subordinated debentures of the Sponsor and
(iii) engaging in such other activities as are necessary, convenient or
incidental thereto.
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 referred to
below, to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred Securities and Common Securities referred to
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 any licenses, consents or approvals required by applicable law or
otherwise.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized (i) to
prepare and file with the Securities and Exchange Commission (the "Commission")
and execute,
in each case on behalf of the Trust, (a) a Registration Statement on Form S-3
(the "1933 Act Registration Statement"), including any pre-effective or post-
effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities and certain other securities of the Sponsor and (b) if the Sponsor
shall deem it desirable, 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
under Section 12 of the Securities Exchange Act of 1934, as amended; (ii) if the
Sponsor shall deem it desirable, to prepare and file with the New York Stock
Exchange or one or more national securities exchange(s) (each, an "Exchange") or
the National Association of Securities Dealers, Inc. (the "NASD") and execute on
behalf of the Trust a listing application or 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 such Exchange or the NASD's Nasdaq National Market ("Nasdaq"); (iii) to
prepare and file and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents as the Sponsor, on behalf of the Trust,
may deem 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, (iv) to negotiate the terms of and
execute on behalf of the Trust an underwriting agreement among the Trust, the
Sponsor and any underwriter(s), dealer(s) or agent(s) relating to the Preferred
Securities, as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (v) to execute and deliver on behalf of the Trust letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities. In the event that any filing referred to in clauses
(i)-(iii) above is required by the rules and regulations of the Commission, any
Exchange, Nasdaq, the NASD or state securities or blue sky laws, to be executed
on behalf of the Trust by the Trustees, any Trustee appointed pursuant to
Section 6 hereof, in their capacities as Trustees of the Trust, and the Sponsor
are hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Property Trustee, the Delaware Trustee and Kerry A. Galvin, in her capacity as a
Trustee 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, any Exchange, Nasdaq, the NASD or state
securities or blue sky laws. In connection with all of the foregoing, the
Sponsor and each Trustee, solely in its capacity as Trustee of the Trust, hereby
constitutes and appoints Dan F. Smith, Jeffrey R. Pendergraft and Kerry A.
Galvin, and each of them, his, her or its, as the case may be, true and lawful
attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement with all exhibits
thereto, and other documents in connection therewith, and (ii) a registration
statement, and any and all amendments thereto, relating thereto filed pursuant
to Rule 462(b) under the
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Securities Act of 1933, as amended, with the Commission, 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 the Sponsor or such 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 or his or her substitute or
substitutes, may lawfully 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 three (3) 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, however, that the number of Trustees shall in no
event be less than three (3); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and meets other
requirements imposed by applicable law. 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.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not
have any of the powers or duties of the Trustees set forth herein and shall be a
Trustee of the Trust for the sole purpose of satisfying the requirements of
Section 3807(a) of the Business Trust Act.
8. The Trust shall dissolve and terminate before the issuance of any
Preferred Securities at the election of the Sponsor.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
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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.
Lyondell Chemical Company,
as Sponsor
By: /s/ Kerry A. Galvin
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Name: Kerry A. Galvin
Title: Associate General Counsel and Secretary
The First National Bank of Chicago,
not in its individual capacity but solely as
Property Trustee
By: /s/ Sandra L. Caruba
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Name: Sandra L. Caruba
Title: Vice President
First Chicago Delaware Inc.,
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Sandra L. Caruba
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Name: Sandra L. Caruba
Title: Vice President
Kerry A. Galvin,
not in her individual capacity but solely as
Trustee
By: /s/ Kerry A. Galvin
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