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Exhibit 4.2.1
DECLARATION OF TRUST, dated as of April 12, 1999 (this "Declaration of
Trust"), among Litchfield Financial Corporation, a Massachusetts corporation, as
Sponsor (the "Sponsor"), and The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as trustee (the "Property
Trustee"), The Bank of New York (Delaware), a Delaware banking corporation, not
in its individual capacity but solely as trustee (the "Delaware Trustee"), and
Ronald E. Rabidou, not in his 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 "Litchfield
Capital Trust I" (the "Trust"), 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 constitutes a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 DEL. C, ss.
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 accordance with 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 (the "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 an
undivided beneficial interest in the assets of the Trust (the "Common
Securities") 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 of 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")
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(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 a
Trustee, any natural person appointed pursuant to Section 6 hereof, in his or
her capacity as trustee of the Trust, and the Sponsor are hereby authorized to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees shall 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, 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. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Sponsor.
8. 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.
LITCHFIELD FINANCIAL CORPORATION,
as Sponsor
By: /s/ Ronald E. Rabidou
________________________________________
Name: Ronald E. Rabidou
Title: Chief Financial Officer
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Mary Jane Morrissey
________________________________________
Name: Mary Jane Morrissey
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Property Trustee
By: /s/ Michael Culhane
________________________________________
Name: Michael Culhane
Title: Vice President
JOHN J. MALLOY,
not in his individual capacity but solely as
Regular Trustee
/s/ John J. Malloy
________________________________________
HEATHER A. SICA,
not in her individual capacity but solely as
Regular Trustee
/s/ Heather A. Sica
________________________________________
RONALD E. RABIDOU,
not in his individual capacity but solely as
Regular Trustee
/s/ RONALD E. RABIDOU
____________________________________________
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