EXHIBIT 10.32
DTD(CM)(TP)G93 Member Code: 53624
LLOYD'S DEPOSIT TRUST DEED
(Third Party Deposit)
THIS DEED is made the 29th day of November One thousand nine hundred and ninety
six BETWEEN PXRE LIMITED whose registered office is at 00 XXXXXXXX XXXX,
XXXXXXXXXX, XXXXXX X0 6AM and whose registered number is 3099078 (hereinafter
called "the Corporate Member") of the first part and PXRE REINSURANCE COMPANY
(hereinafter called "the Depositor") of the second part and the Society
incorporated by Lloyd's Xxx 0000 by the name of LLOYD'S (hereinafter called the
"the Society") of the third part.
WHEREAS:
(A) The Corporate Member has applied to become or already is a corporate
underwriting member of the Society and this Deed is made in
consideration of the Corporate Member's admission to such membership or
of the continuance of its existing membership.
(B) In order to comply with the requirement of the Society that
underwriting members should provide security in respect of their
underwriting business at Lloyd's by way of inter xxxx Xxxxx'x deposit
the Depositor has at the request of the Corporate Member paid or
transferred to or under the direct or indirect control of the Society
such moneys or other property approved by the Council of Lloyd's as are
entered in the records maintained by the Society to be held by the
Society as trustee upon and with and subject to the trusts powers and
provisions set out herein.
(C) The Corporate Member has executed at the same time as this Deed or will
shortly execute a deed or deeds (in a form approved by the Secretary of
State under the Insurance Companies Act 1982) entitled Lloyd's Premiums
Trust Deed declaring trusts upon which the premiums and other moneys
received by or on behalf of the Corporate Member in connection with
insurance business other than long term insurance business are to be
held.
NOW THIS DEED made for the consideration aforesaid WITNESSETH and it is hereby
AGREED AND DECLARED as follows:
1. In this Deed unless the context otherwise requires:
Definitions
"the Beneficiaries" means all persons to whom the Corporate
Member is or may at any time before the Termination Date
become financially liable by reason of any default in respect
of any of the Corporate Member's Lloyd's obligations and the
singular has a corresponding meaning
"the Committee" means the Committee of Lloyd's
"the Council" means the Council of Lloyd's or (in relation to
any duty responsibility right power or discretion which is
hereby imposed or conferred upon the Council but which has for
the time being been delegated by the Council to the Committee
pursuant to section 6(6)(a) of Lloyd's Act 1982) the Committee
"insurance" includes assurance reinsurance and reassurance
"Lloyd's obligations" in relation to the Corporate Member
means all underwriting obligations incurred by the Corporate
Member as an underwriting member of the Society at any time
before the Termination Date and includes obligations to the
Society and the Trustees and obligations arising under:
(a) the byelaws regulations rules directions or other
requirements of the Society and
(b) any deed contract instrument or other arrangement of
any kind approved by the Society;
but does not include obligations arising in respect of any
letter of credit guarantee or other security given to secure
the performance of any of the said underwriting obligations in
favour of the person giving such guarantee or other security
"the managing agent" means the person for the time being
acting as the Corporate Member's managing agent in respect of
certain of the Corporate Member's underwriting business at
Lloyd's
"the Premiums Trust Deed" means the deed or deeds referred to
in recital (C) hereof and includes any further such deed which
may hereafter be executed by the Corporate Member in addition
thereto or substitution therefor
"the Premiums Trustees" means the trustees for the time being
of the Premiums Trust Deed
"the Premiums Trust Fund" means the fund of premiums and other
moneys held from time to time by or under the control of the
Premiums Trustees upon the trusts of the Premiums Trust Deed
"property" includes securities and all choses in action
whether the system by which they are recorded held and
transferred is based on written documents or on computer
records or on some combination of the two
"requirements of the Council" means any requirement imposed by
any byelaw or regulation made under Lloyd's Acts 1871 to 1982,
any condition or requirement imposed or direction given under
any such byelaw or regulation, any direction given under
section 6 of Lloyd's Xxx 0000, any requirement imposed by or
under any undertaking given to the Society or to the Council
by the Corporate Member or the Covenantor and any other
requirement imposed or direction given by the Council under
Lloyd's Acts 1871 to 1982
"securities" includes shares stock and debentures of all
descriptions whether the system by which they are recorded
held and transferred is based on written documents or on
computer records or on some combination of the two
"Special Reserve Funds" means funds set up in accordance with
arrangements referred to in sections 452 to 456 of the Income
and Corporation Taxes Xxx 0000 or section 175 of, and Schedule
20 to, the Finance Xxx 0000 (or in each case any amendment or
re-enactment thereof) and the singular has a corresponding
meaning
"the Termination Date" means the 80th anniversary of the date
of this Deed (so that the perpetuity period applicable hereto
shall be 80 years)
"the Trustees" means the Society and the other trustees for
the time being of the trusts hereby created and the singular
has a corresponding meaning
"the Trust Fund" means the moneys or other property referred
to in recital (B) hereof and all moneys and other property
hereafter at any time paid or transferred to or under the
direct or
indirect control of the Trustees upon the trusts hereof and
all accumulations of income and the investments and other
property hereafter for the time being representing the same.
2. (a) In consideration of the Corporate Member's admission
Declaration and as an underwriting member of the Society (or of the
Covenant continuance of such membership) the Corporate Member
and the Depositor with the intention of establishing
a binding trust of the benefit of the Beneficiaries
hereby irrevocably declare and direct that the Trust
Fund shall henceforth be held by the Trustees upon
and with the subject to the trusts powers and
provisions set out herein;
(b) For the said consideration the Corporate Member
hereby:
(i) covenants with the Trustees that whenever
any sum is paid to the Premiums Trustees or
otherwise applied under clause 5(b) hereof
the Corporate Member will thereafter (if so
required by the Society) procure that before
any further payment is made to the Corporate
Member out of the future profits of the
Corporate Member's underwriting business at
Lloyd's there shall be paid to the Trustees
out of such profits sums equal in the
aggregate to the sum so paid or applied to
be held by the Trustees as an accretion to
the Trust Fund; and
(ii) by way of security for the performance of
the foregoing covenant charges the future
profits of the said business with payment of
all sums from time to time payable to the
Trustees thereunder (subject to any prior
charge contained in the Premiums Trust Deed)
and for that purpose and to that extent
assigns the said profits to the Trustees to
hold upon the trusts hereof.
3. The Trustees shall hold the Trust Fund upon trust that they
Trust to Sell may either allow the same or any part of it to remain as
or Retain actually invested so long as they think fit or may at their
discretion sell call in or convert into money the same or any
part of it and shall invest the moneys produced thereby and
any other capital moneys held upon the trusts hereof in any
investments hereby authorised with power to vary or transpose
any investments for others hereby authorised.
4. The Trustees shall stand possessed of the Trust Fund and the
Powers of income thereof:
Appointment (a) upon such trusts for the benefit of the Beneficiaries
and or any one or more for them exclusive of the others
Determination in such shares and subject to such terms and
limitations and with such discretionary trusts and
powers exercisable by such persons as the Society
shall from time to time (for the purpose for
promoting the effective securing of the Corporate
Member's Lloyd's obligations or the beneficial and
convenient execution and administration of the trusts
hereof) by deed or deeds revocable or irrevocable
executed before the Termination Date but without
infringing the rule against perpetuities appoint;
(b) upon trust if the Society shall at any time or times
before the Termination Date by deed declare that the
trusts hereby created are determined in respect of
the Trust Fund or any part of it to pay and transfer
the same to the Depositor absolutely.
5. In default of and subject to any such appointment or
Trusts declaration the Trustees shall hold the Trust Fund and its
income upon the following trusts:
(a) Until the Termination Date the income of the Trust
Fund shall be held upon and subject to the following
trusts and powers:
(i) subject as hereinafter provided upon trust
for the Depositor absolutely;
(ii) if and whenever the Trustees determine that
an event has occurred which brings into
operation any of the trusts or powers
contained in clause 5(b) hereof then subject
to those trusts and powers upon trust to
accumulate the subsequent income and add it
to the capital of the Trust Fund;
(iii) whenever the income is subject to
accumulation as aforesaid the Trustees may
at their discretion (exercisable in
accordance with the requirements of the
Council) by written instrument declare that
accumulation shall cease whereupon the
subsequent income shall be subject to all
the provisions of this clause 5(a);
(b) Until the Termination Date the Trust Fund and its
income shall be held upon and subject to the
following trusts or powers:
(i) if and whenever the Corporate Member shall
make default in respect of any of the
Corporate Member's Lloyd's obligations the
Trustees may apply the Trust Fund or its
income or any part thereof in discharging or
making good such default in such manner and
to such extent as the Trustees think fit
(whether by payment direct to the
Beneficiary affected reinsurance purchase of
claims or returns of premiums or otherwise);
(ii) if and whenever it appears to the Trustees
from a certificate or report of auditors
approved by the Council that either
(aa) insufficient assets are available in
the Premiums Trust Fund to meet the
Corporate Member's Lloyd's
obligations; or
(bb) the corporate Member has sustained
on a closed underwriting account an
ascertained loss which has not been
funded
the Trustees may pay or apply the Trust Fund
or its income or any part thereof in any
manner directed by the Premiums Trust Deed
for the payment or application of the
Premiums Trust Fund or may pay the same to
the Premiums Trustees as an accretion to the
Premiums Trust Fund;
(iii) if and whenever it shall be established to
the satisfaction of the Trustees that any
person (including the Society) has at any
time (with or without the knowledge and
consent of the Corporate Member) in good
faith applied moneys not belonging to the
Corporate Member in or towards the discharge
of any claim accepted by the managing agent
upon any contract of insurance underwritten
at Lloyd's by or on account of the Corporate
Member the Trustees may act under sub-clause
(b)(i) above as if the Corporate Member was
in default in respect of such claim and as
if the person so applying such moneys was a
Beneficiary;
(c) Until the Termination Date the Trust Fund and its
income shall be held upon and subject to the
following trusts or powers:
(i) if before the Termination Date the Corporate
Member shall cease (for any reason
whatsoever) to be a person obliged under the
requirements of the Council to maintain
funds at Lloyd's and it shall be established
to the satisfaction of the Trustees that all
the Corporate Member's Lloyd's obligations
have been discharged or otherwise finally
provided for the Trustees shall hold the
Trust Fund and its income upon trust for the
Depositor absolutely;
(ii) subject as aforesaid the Trustees shall at
the Termination Date pay and transfer the
Trust Fund and its income to the Premiums
Trustees as an accretion to the Premiums
Trust Fund and to be held by them upon the
trusts of the Premiums Trust Deed;
(d) Subject as aforesaid the Trust Fund and its income
shall be held upon trust for the Depositor
absolutely.
6. Notwithstanding anything hereinbefore contained:
Release and
Advancement (a) The Society may at any time or times before the
Termination Date:
(i) by deed release wholly or in part all or any
of the discretionary trusts or powers hereby
conferred on the Trustees in respect of the
whole or any part of the income or capital
of the Trust Fund; or
(ii) by written instrument release wholly or in
part all or any of the Corporate Member's
outstanding obligations under clause 2
hereof;
(b) Section 32 of the Trustee Xxx 0000 shall apply to the
Trust Fund but as if all the provisos in subsection
(1) were omitted.
7. Subject to the requirements of the Council:
Powers of
Investment (a) Moneys to be invested hereunder may be applied or
invested in the purchase of any investments or
property for the time being authorised by the Council
for the investment of Lloyd's Deposits (whether
producing income or not and whether properly
described as investments or not and whether or not
within the range of investments authorised by law for
the investment of trust funds);
(b) Securities comprised in the Trust Fund may be
deposited with or lent (with or without security) to
any incorporated company or building society or bank
or discount house or local or governmental authority
other than any of the following:
(i) The Corporate Member itself;
(ii) any company which is an associate of the
Corporate Member for the purposes of section
435 of the Insolvency Xxx 0000 (or any
amendment or re-enactment thereof);
(iii) any other corporate member of the Society;
(c) Any part of the Trust Fund may be pooled with other
property held in the names or under the control of
the Trustees or of the Trustees jointly with other
trustees upon the trusts of other Lloyd's Deposits or
of Lloyd's Special Reserve Funds or Premiums Trust
Funds including the Premiums Trust Fund and may
accordingly be deposited or otherwise applied
together with such other sums and without any
obligation to keep them separate;
(d) Moneys may be invested in securities or property in
any part of the world which are recorded held and
transferred by an officially established or
officially regulated system which is based wholly or
partly on computer records (including in particular
the systems currently operated in the USA under the
names of the "Fedwire" and the Depository Trust
Company).
8. In the administration of the trusts hereof the Trustees shall
Other Powers have the following powers in addition to those conferred on
them by law:
(a) Power to cause or permit the Trust Fund or any part
of it to be held in the name or under the direct or
indirect control of any nominee approved for the
purpose by the Council (whether or not one of the
Trustees and whether resident within or outside the
United Kingdom) and to pay the remuneration and
expenses of such nominee out of the capital or income
of the Trust Fund;
(b) Power to participate (whether directly or indirectly
through one or more nominees) in any system for the
recording holding or transferring of securities or
any choses in action which is based wholly or partly
on computer records and which is officially
established or officially regulated in any part of
the world (including in particular any system for the
transfer of securities established by the Bank of
England and the Stock Exchange under the Stock
Transfer Act 1982) and including power (when
participating indirectly) to allow a nominee for the
purpose of such participation to mix property
comprised in the Trust Fund with other property held
by that nominee for that purpose;
(c) Power to exercise the voting powers conferred on them
as the holders of any securities from time to time
comprised in the Trust Fund and to concur in and make
any arrangements in connection with any
reconstruction amalgamation or winding up of any
company whose securities are so comprised as if the
Trustees were absolute owners beneficially entitled;
(d) Power to appropriate any investment or property from
time to time forming part of the Trust Fund in its
actual state of investment to or towards any share or
interest in the Trust Fund upon making such
valuations as the Trustees think fit and without
obtaining the consent of any person;
(e) Power at any time or times by revocable written
instrument to delegate to any person for any period
and in any manner and upon any terms (including power
for the delegate to sub-delegate) the exercise of any
of the administrative powers or discretions hereby
conferred on them without being liable for the acts
or defaults of any such delegate or sub-delegate or
for any loss to the Trust Fund resulting therefrom
and power at any time by written instrument to revoke
any such delegation and in particular power so to
delegate their powers under clause 3 hereof to any
person who appears to them to be fit and proper and
who is an authorised or exempted person within the
meaning of the Financial Services Xxx 0000 (or any
amendment or re-enactment thereof);
(f) Power to raise and pay out of the Trust Fund (without
prejudice to their lien thereon) any taxes charges
expenses or other outgoings for which they may be
accountable or liable as Trustees hereof or otherwise
incurred by the Society or Trustees (in whatever
capacity) in connection with these presents or the
Corporate Member's membership of the Society or
anything done in connection therewith and in this
clause 8(f) "taxes" includes any liability of the
Trustees or the Society to pay to any person (whether
by way of indemnity or otherwise) any amount for or
on account of taxes however the rights of that person
against the Trustees or the Society may arise.
9. (a) Nothing herein contained shall entitle any
Beneficiaries Beneficiary to receive any account of the Trust Fund
Right to Accounts or its income unless the Trustees have decided to pay
or apply some part thereof for his benefit and have
notified him of such decision in writing.
(b) All income of the Trust Fund shall be deemed to
accrue wholly on the date of receipt and shall not be
apportionable in respect of time.
10. (a) The Society shall be entitled to remuneration for
Society as acting as a trustee in accordance with terms and
Trustee conditions prescribed by the requirements of the
Council.
(b) The Society may retain for its own benefit any fee
commission or share of commission to which it may
become entitled by reason of any deposit loan or
other investment or application of the Trust Fund or
any part of it made in the Society's name.
(c) In the professed execution of the trusts and powers
hereof neither the Society nor the Council nor the
Committee nor any other committee sub-committee or
body of persons nor any other agent employee or
person through which or whom the Society the Council
or the Committee may act shall in any circumstances
incur any liability to the Depositor to the Corporate
Member or to any Beneficiary for negligence.
11. (a) The statutory power of appointing new Trustees shall
New Trustees apply to the trusts hereby created and shall at all
times be vested in the Society.
(b) The Society may at any time by deed remove any
Trustee (but shall not remove a sole Trustee without
appointing at least one other in his place).
(c) A corporation may be appointed as Trustee or
custodian trustee whether or not it is within the
statutory definition of trust corporation.
(d) A trust corporation shall be entitled to remuneration
for its services in accordance with its normal
published terms from time to time and any other
Trustee (including a corporation) engaged in any
profession or business shall be entitled to be paid
all usual professional or proper charges for business
transacted time expended and acts done by him or any
partner or employee of his in connection with the
trusts hereof including acts which a trustee not
being in any profession or business could have done
personally.
(e) Any individual Trustee may act as an officer or
employee of any company whose securities are
comprised in the Trust Fund or of any subsidiary of
any such company and may retain for himself any
remuneration which he may receive as such officer or
employee notwithstanding that any votes or other
rights attached to any such securities may have been
instrumental either alone or in conjunction with
other matters or by reason of their non-exercise in
procuring or continuing for him his position as such
officer or employee or that his qualification for any
such position may be constituted wholly or partly by
the holding of such securities.
(f) In the professed execution of the trusts and powers
hereof no Trustee (including the Society) shall be
liable for any loss to the Trust Fund arising by
reason of any improper investment made in good faith
or the negligence or fraud of any delegate or agent
appointed or employed by him or by any other Trustee
(although such appointment or employment was not
strictly necessary or expedient) or by reason of any
mistakes or omissions made in good faith by any
Trustee or by reason of any other matter or thing
except wilful and individual wrongdoing on the part
of the Trustee who is sought to be made so liable.
12. (a) This Deed shall be read and construed and take effect
English Law in all respects in accordance with English law.
(b) The parties hereto irrevocably and unconditionally
submit for all purposes of and in connection with the
Deed to the exclusive jurisdiction of the English
Courts.
13. The marginal notes herein contained are for reference only and
shall not control the meaning or
Marginal effect of this Deed.
Notes
IN WITNESS whereof the parties hereto have duly executed this
instrument as a deed
SIGNED as a DEED )
and DELIVERED by )
PXRE LIMITED acting ) /s/ Xxxxxx X. Xxxxx [Corporate Member]
by two Directors or ) ----------------------------
one Director ) Director
and the Company )
Secretary ) /s/ Xxxxxxx X. Xxxxxx
----------------------------
Director/Secretary
SIGNED as a DEED )
and DELIVERED by )
PXRE REINSURANCE ) /s/ Xxxxxx X. Xxxxx [Depositor]
Company acting by ) ----------------------------
two Directors or ) Director
one Director and the )
Company Secretary ) /s/ Xxxxxxx X. Xxxxxx
----------------------------
Director/Secretary
The common Seal of Lloyd's was hereunto affixed in
the presence of [SEAL]
Authorised Signatory
