EXHIBIT 10.27
TRUST AGREEMENT
OF
NP CAPITAL TRUST I
THIS TRUST AGREEMENT OF NP CAPITAL TRUST I (this "Trust Agreement") is
dated as of February 21, 2006 by and between North Pointe Holdings Corporation,
a Michigan corporation, as depositor (the "Depositor"), and Christiana Bank &
Trust Company, as trustee (in such capacity, the "Delaware Trustee"). The
Depositor and the Delaware Trustee hereby agree as follows:
1. The trust created hereby shall be known as "NP Capital Trust
I" (the "Trust"), in which name the Delaware Trustee or the Depositor, to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trust the sum of $10. The Delaware Trustee hereby acknowledges receipt of
such amount in trust from the Depositor. Such amount shall constitute the
initial trust estate of the Trust. The Delaware Trustee hereby declares that it
will hold the trust estate in trust for the Depositor. 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. ss. 3801, et seq.
(the "Statutory Trust Act"), and that this document constitute the governing
instrument of the Trust. The Delaware Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Secretary of State of the
State of Delaware in such form as the Delaware Trustee may approve.
3. The Depositor and the Delaware Trustee will enter into an
amended and restated Trust Agreement satisfactory to each such party to provide
for the contemplated operation of the Trust created hereby and the issuance by
the Trust of the Preferred Securities and Common Securities as may be referred
to therein. Prior to the execution and delivery of such amended and restated
Trust Agreement, (i) the Delaware Trustee shall not have any duty or obligation
hereunder or with respect to the trust estate of the Trust, except as otherwise
contemplated in this Trust Agreement, and (ii) the Depositor shall take or cause
to be taken on behalf of the Trust all actions 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. Notwithstanding
the foregoing, the Delaware Trustee is authorized to take all actions, as
instructed by the Depositor, necessary to effect the transactions contemplated
herein.
4. The Depositor, on behalf of the Trust, is hereby authorized,
in its discretion, (i) to prepare, 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 that shall be
necessary or desirable to register or establish the exemption from the
registration of the Preferred Securities of the Trust under the securities or
"Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable; (ii) to prepare, negotiate, execute and deliver
letters or documents to, or instruments for filing with, a depositary relating
to the Preferred Securities of the Trust as it deems necessary or desirable; and
(iii) to negotiate, execute, deliver and perform on behalf of the Trust one or
more placement
agreements, purchase agreements, subscription agreements, dealer manager
agreements, escrow agreements and other similar or related agreements providing
for or relating to the sale of the Preferred Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Securities and Exchange Commission (the
"Commission") or any state securities or Blue Sky laws or by any depositary to
be executed on behalf of the Trust by the Delaware Trustee, the Delaware Trustee
is hereby authorized and, to the extent so required, 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 Delaware Trustee shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
directed by the Depositor as being required by the rules and regulations of the
Commission and any state securities or Blue Sky laws or by any depositary.
5. This Trust Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6. The number of trustees of the Trust initially shall be one (1)
and thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Depositor,
which may increase or decrease the number of trustees of the Trust; provided,
that to the extent required by the Statutory Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity that has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Depositor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Depositor.
7. The Depositor hereby agrees to (i) reimburse the Delaware
Trustee for all reasonable expenses (including reasonable fees and expenses of
counsel and other experts), (ii) to the fullest extent permitted by law,
indemnify, defend and hold harmless the Delaware Trustee and any of the
officers, stockholders, directors, employees and agents of the Delaware Trustee
(the "Indemnified Persons") from and against all losses, damages, liabilities,
claims, actions, suits, costs, expenses, disbursements (including the reasonable
fees and expenses of counsel), taxes and penalties of any kind and nature
whatsoever (collectively, "Expenses"), to the extent that such Expenses arise
out of or are imposed upon or asserted at any time against such Indemnified
Persons with respect to the performance of this Trust Agreement, the creation,
operation, administration or termination of the Trust or the transactions
contemplated hereby; provided, that the Depositor shall not be required to
indemnify any Indemnified Person for any Expenses which are judicially
determined to be the result of the willful misconduct, bad faith or negligence
of such Indemnified Person and (iii) to the fullest extent permitted by law,
advance to each such Indemnified Person Expenses incurred by such Indemnified
Person in defending any claim, demand, action, suit or proceeding prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Depositor of an undertaking, by or on behalf of such Indemnified Person,
to repay such amount if it shall be determined that such Indemnified Person is
not entitled to be indemnified therefor under this Section 7. The obligations of
the Depositor under this Section 7 shall survive the resignation or removal of
the Delaware Trustee,
-2-
shall survive the termination, amendment, supplement, and/or restatement of this
Trust Agreement, and shall survive the transfer by the Depositor of any or all
of its interest in the Trust.
8. The Trust may be dissolved and terminated before the issuance
of the Preferred Securities of the Trust at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware (without regard
to conflict of laws principles).
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
NORTH POINTE HOLDINGS CORPORATION,
as Depositor
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------
Title: Chairman, President & Chief
Executive Officer
-----------------------------
CHRISTIANA BANK & TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
-----------------------------
Title: Assistant Vice President
-----------------------------
-4-
