Exhibit 10.36


 


MASTER REIMBURSEMENT


AGREEMENT
— FORM 3/CEP


 

















 


Insurance Letters of Credit — Master Agreement


 


Form 3/CEP


 


AGREEMENT DATED 6 NOVEMBER 2009


 


BETWEEN:


 


(1)           ARCH REINSURANCE LTD. (“the Company”) whose offices
are at Wessex House, 3rd Floor, 45 Reid Street, Hamilton HM 12,
Bermuda;


 


AND


 


(2)           CITIBANK EUROPE PLC (“CEP”) whose offices and
registered address are at 1 North Wall Quay, I.F.S.C., Dublin 1, Ireland.


 


PREAMBLE


 


Subject to the Company’s satisfaction of the terms and conditions
contained in this Agreement, CEP agrees to establish letters of credit or
similar or equivalent acceptable instruments (each a “Credit” and collectively
the “Credits”) on behalf of the Company in favour of beneficiaries located in
the United States of America or elsewhere (the “Beneficiary” or “Beneficiaries”
as relevant). In furtherance of this Agreement, the parties have entered into (i) a
Pledge Agreement, dated as of the date hereof (the “Pledge Agreement”) between
the Company and CEP and (ii) an Account Control Agreement, dated as of the
date hereof (the “Account Control Agreement”) among the Company, CEP and a
securities intermediary.  From time to
time, the parties may enter into additional security arrangements.


 


1.      AGREEMENT


 


It is agreed between us
in relation to each Credit that:-


 


1.1        In order to establish a Credit, the Company is
required to submit an application form to CEP (“the Application Form”).  The Application Form must (a) be in
such form as CEP is willing to accept for this purpose; Application Forms may,
subject to CEP’s agreement, be received via any electronic system(s) or
transmission arrangement(s); (b) be completed by or on behalf of the
Company in accordance with the terms of the Company’s banking mandate(s) or
other authorities lodged with CEP or in accordance with arrangement(s) made
with CEP from time to time; and (c) indicate therein the name of the
Beneficiary and the amount and term of the Credit required.  Upon receipt of an Application Form that
satisfies the above criteria, CEP shall establish on behalf of the Company an
irrevocable clean sight Credit (or such other form of Credit as may be required
by the Application Form relating thereto) available, in whole or in part,
by the Beneficiary’s sight draft (the Company hereby agreeing that CEP may
accept as a valid “sight draft” any written or electronic demand or other
request for payment under the Credit, even if such demand or other request is
not in the form of a negotiable instrument) on CEP or otherwise as may be
required by the terms of the Credit; provided, however, that:


 


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(i)         the opening of any Credit hereunder
shall, in every instance, be at CEP’s option and nothing herein shall be
construed as obliging CEP to open any Credit; and


 


(ii)        prior to the establishment of any Credit
or in order to maintain a Credit the Company undertakes as follows:


 


(a)     forthwith at CEP’s request to deposit (a “Deposit”)
of Collateral (as such term is defined in the Pledge Agreement) pursuant to the
terms of the Pledge Agreement at an Approved Bank selected by the Company.  “Approved Bank” for the purposes of this
Clause 1.1(ii)(a) shall mean one or more of the following:- (i) Citibank,
N.A. at their branch at Citigroup Centre, Canada Square, Canary Wharf, London
E14 5LB; (ii) a bank approved by CEP and the Company, such approval not to
be unreasonably withheld; provided that the securities intermediary party to
the Account Control Agreement is hereby approved; or, (iii) such other
Citigroup branch or approved bank as CEP may designate and notify to the
Company, and in the case of an approved bank, approved by the Company, such
approval not to be unreasonably withheld; and


 


(b)    should a Deposit have been requested and
is made in an account not covered by the Account Control Agreement, to execute security
arrangements reasonably satisfactory to CEP and the Company in relation to the
accounts opened pursuant to Clause 1.1 (ii) (a) above.


 


1.2       Without prejudice to the generality of Clause 1.1 (i),
the opening of any Credit hereunder shall be dependent upon CEP being
satisfied, in its absolute discretion, that the collateral requirements of the
Pledge Agreement have been met and that the documentation required to be
executed under Clause 1.1 (ii) (b), if any, has been validly executed;


 


1.3        The Company undertakes to reimburse CEP, within two (2) Business
Days of  demand by CEP, the amount of any
and all drawings  (including, for the
avoidance of doubt, drawings presented electronically) under each Credit;


 


1.4        The Company undertakes to indemnify CEP, on demand,
for and against all actions, proceedings, losses, damages, charges, costs,
expenses, claims and demands which CEP may incur, pay or sustain in connection
with each Credit and/or this Agreement, howsoever arising (unless resulting
from CEP’s own gross negligence or willful misconduct);


 


1.5        The Company undertakes to pay CEP, on demand, such
fees and/or commissions of such amount(s) and/or at such rate(s) as
shall be separately agreed;


 


1.6        The Company hereby irrevocably authorises
CEP to make any payments and comply with any demands which may be claimed from
or made upon CEP in connection with any Credit without any reference to, or
further authority from, the Company but subject to confirmation that any documents
required to be delivered under such Credit have been delivered and that they
appear to substantially comply on their face with the requirements of such
Credit.  The Company hereby agrees that
it shall not be incumbent upon CEP to enquire or take notice of whether or not
any such payments or demands claimed from or made upon CEP in connection with
each Credit are properly made (subject to the preceding sentence) or whether
any dispute exists between the Company and the Beneficiary thereof.  The Company further agrees that any payment
CEP makes in accordance with the terms and conditions of each Credit shall be
binding upon the Company and shall be accepted by the Company as conclusive
evidence that CEP was liable to make such payment or comply with such demand.


 


2.      REPRESENTATIONS AND WARRANTIES


 


2.1        The Company represents and warrants to
CEP and undertakes that:-


 


(i)         it has and will at all times have the necessary power
to enable it to enter into and perform the obligations expressed to be assumed by
it under this Agreement;


 


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(ii)        the Agreement constitutes its legal, valid, binding
and enforceable obligation effective in accordance with its terms, subject to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors’ rights generally; and


 


(iii)       all
necessary authorisations to enable or entitle it to enter into this Agreement
have been obtained and are in full force and effect and will remain in such
force and effect at all times during the subsistence of this Agreement.


 


2.2        CEP represents warrants and undertakes to
the Company that each Credit, upon issuance, will constitute a legal, valid and
binding obligation of the issuer thereof enforceable in accordance with its
terms, subject to general principles of equity and to bankruptcy, insolvency
and similar laws affecting the enforcement of creditors’ rights generally.


 


2.3        The Company represents and warrants to CEP that:-


 


(i)         it is not unable to pay its debts as they
fall due;


 


(ii)        it has not been deemed or declared to be unable to pay
its debts under any applicable law;


 


(iii)       it has not suspended making payments on any of its
debts;


 


(iv)       it has not, by reason of actual or anticipated
financial difficulties, commenced negotiations with any of its creditors with a
view to rescheduling any of its indebtedness;


 


(v)        the value of its assets is not less than its
liabilities (taking into account contingent and prospective liabilities);


 


(vi)       no moratorium has been declared in respect of any of
its indebtedness; and


 


(vii)      no analogous or similar event or concept to those set
out in this Clause 2.2 has occurred or is the case under the laws of any
jurisdiction.


 


3.      EXTENSION/TERMINATION


 


3.1        (a)            Any Credit established
hereunder may, if requested by the Company on the relevant Application
Form and subject to CEP’s consent, bear a clause to the effect that it
will automatically be extended for successive periods of one year (or such
other period as may be stated in the relevant Application Form) UNLESS the Beneficiary has received from
the bank or institution issuing the Credit (the “Issuing Bank”) by registered
mail (or other appropriate receipted delivery) notification of intention not to
renew such Credit at least 30 days (or such other period as may be stated in
the relevant Application Form) prior to the end of the original term or, as the
case may be, of a period of extension (the “Notice Period”).


 


(b)     The Issuing Bank shall be under no
obligation to the Company to send the Beneficiary such notification (and
without such notification to the Beneficiary the Credit will be automatically
extended as provided above) UNLESS
the Company shall have sent notification to CEP by registered mail (or other
means acceptable to CEP) of its election not to renew such Credit at least 30
days prior to the commencement of the Notice Period.


 


(c)     CEP reserves the right, at its sole option
and discretion, to give or procure the giving at any time to the Beneficiary of
notification of intention not to renew any Credit.  If CEP exercises such said right, it will
give the Company notice in writing thereof as soon as is reasonably possible
but not later than notification to the Beneficiary.


 


(d)     The Company may elect to terminate any
Credit prior to the scheduled expiration date thereof by causing the return of
such Credit to the issuer thereof for cancellation with the Beneficiary’s
consent.  Upon such return, at the
Company’s request, such Credit shall be cancelled and shall no longer be deemed
outstanding for any purpose including for 


 


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purposes of determining compliance with the
collateral requirements under the Pledge Agreement or calculating fees payable
to CEP.


 


4.      UCP/ISP


 


CEP
may, at its sole option, arrange for the issuance of any Credit as being
subject to either (i) the Uniform Customs and Practice for Documentary
Credits (1993 Revision) ICC Publication No. 500 (“the UCP”) or (ii) the
International Chamber of Commerce Publication No. 590 - the International
Standby Practices 1998 (the “ISP”), (or any subsequent version of either);
provided however that CEP may agree such modifications thereof as may be
required by any regulatory or other authority having jurisdiction as to the
acceptability of the Credit in question.


 


5.      [Intentionally Omitted.]


 


6.      CREDIT
CHOICE OF LAW


 


If, at the Company’s
request, a Credit expressly chooses a state or country law other than New York,
U.S.A. or English law, or is silent with respect to the UCP, the ISP or a
governing law, CEP shall not be liable for any payment, cost, expense or loss
resulting from any action or inaction it takes provided such action or inaction
is justified under UCP, ISP, New York law, English law or the law governing the
Credit.


 


7.      BRANCHES/CORRESPONDENT BANKS


 


7.1        The Company acknowledges that CEP may carry out any of
its obligations or exercise any of its rights under this Agreement through any
of its offices or branches, wheresoever situated.


 


7.2        The Company further understands that CEP
reserves the right to issue any Credit through any third party correspondent of
its choice that is acceptable to the Company (such acceptance not to be
unreasonably withheld) and/or to have any Credit confirmed by Citibank,
N.A.  In such circumstances, CEP will be
required to guarantee reimbursement to such correspondent and/or Citibank, N.A.
of any payments which such correspondent and/or Citibank, N.A. may make under
the Credit in question and such guarantee (howsoever described) shall be
treated mutatis mutandis as a Credit for the purpose of this Agreement.


 


8.      INCREASES ETC/REINSTATEMENTS


 


The provisions of the
foregoing Clauses shall be equally applicable to any increase, extension,
renewal, partial renewal, modification or amendment of, or substitute
instrument for, any Credit to which they apply. 
If for any reason any amount paid under any Credit is repaid, in whole
or in part, by the Beneficiary thereof, CEP may, in its sole discretion, treat
(or procure the treatment of) such repayment as a reinstatement of an amount
(equal to such repayment) under such Credit. 
The value date CEP applies to any such reinstatement shall not be
earlier than the date of such repayment. 
 CEP shall not be liable for
losses of any nature which the Company may suffer or incur and/or which may
arise from any inadvertent or erroneous drawing under a Credit; provided that
CEP has confirmed that any documents required to be delivered under such Credit
have been delivered and that they appear to substantially comply on their face
with the requirements of such Credit.


 


9.      NOTICES


 


9.1        Any notice or demand to be served on the Company by
CEP hereunder may be served:


 


(a)     on any of the Company’s officers personally;


 


(b)     by letter addressed to the Company or to any of its
officers and left at the Company’s registered office or at any one of its
principal places of business;


 


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(c)     by posting the same by letter addressed in any such
manner as aforesaid to such registered office or principal place of business;
or


 


(d)     by facsimile addressed in any such manner as aforesaid
to any then published facsimile number of the Company.


 


9.2        Unless otherwise stated, any notice or demand to be
served on CEP by the Company hereunder must be served either at CEP’s address
as stated above (or such other address as CEP may notify us of from time to
time) or by facsimile to such number as CEP may notify the Company of from time
to time.


 


9.3        Any notice or demand:-


 


(a)     sent by post to any address in the
Republic of Ireland or the United Kingdom shall be deemed to have been served
on the Company at 10am. (London time) on the first Business Day after the date
of posting (in the case of an address in the Republic of Ireland) and on the
second Business Day after posting (in the case of an address in the United
Kingdom) or, in the case of an address outside the Republic of Ireland or the
United Kingdom (or a notice or demand to CEP), shall be deemed to have been
served on the relevant party at 10am. (London time) on the third Business Day
after and exclusive of the date of posting; or


 


(b)     sent by facsimile shall be deemed to have been served
on the relevant party when dispatched.


 


9.4        In proving service by post it shall be sufficient to
show that the letter containing the notice or demand was properly addressed and
posted and such proof of service shall be effective notwithstanding that the
letter was in fact not delivered or was returned undelivered.


 


9.5        In this Agreement, “Business Day” shall be construed
as a reference to a day (other than a Saturday or a Sunday) on which banks are
generally open in London.


 


10.    ASSIGNMENT/NOVATION


 


10.1      CEP may (a) assign or otherwise
dispose of the whole or any part of its rights and/or benefits under this
Agreement or (b) (subject to Clauses 10.2 to 10.5) novate its rights and
obligations under this Agreement.  CEP
will give notice to the Company at least 10 Business Days prior to such
assignment, disposition or novation.  The
words “CEP” and “CEP’s” wherever used in Clauses 10.2 to 10.5 shall be deemed
to include CEP’s assignees and novatees and other successors, whether immediate
or derivative, who shall be entitled to enforce and proceed upon this Agreement
in the same manner as if named herein. CEP shall be entitled to impart any
information concerning the Company to any such assignee, novatee or other
successor or any participant or proposed assignee, novatee, successor or
participant.


 


10.2      The person who is for the time being liable to perform
CEP’s obligations under this Agreement (a “Transferring Bank”) shall be
entitled to novate at any time, upon service of a notice on the Company in the
form attached as Schedule One to this Agreement (a “Novation Notice”), any or
all of its rights and obligations under, and the benefit of, this Agreement to
any Permitted Transferee.  With effect
from the date on which a Novation Notice is executed by the Transferring Bank
and the Permitted Transferee and served on the Company (the “Novation Date”),
the provisions of Clause 10.3 shall have effect (but not otherwise).


 


10.3     With effect from (and subject to the occurrence of)
the Novation Date:


 


10.3.1  the Permitted Transferee shall be bound by the terms of this
Agreement (as novated) in every way as if the Permitted Transferee was and had
been a party hereto in place of the Transferring Bank and the Permitted
Transferee shall undertake and perform and discharge all of CEP’s obligations
and liabilities under this Agreement (as novated) whether the same fell or fall
to be performed or arose or arise on, before or after the Novation Date;


 


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10.3.2  the
Company shall release and discharge the Transferring Bank from further performance
of its obligations arising in favour of the Company on and after the Novation
Date under this Agreement and all claims and demands whatsoever in respect
thereof against the Transferring Bank, and the Company shall accept the
liability of the Permitted Transferee in respect of such obligations in place
of the liability of the Transferring Bank;


 


10.3.3  the
Transferring Bank shall release and discharge the Company from further
performance of its obligations arising in favour of the Transferring Bank on
and after the Novation Date under this Agreement and all claims and demands
whatsoever in respect thereof by the Transferring Bank; and


 


10.3.4  the
Company shall be bound by the terms of this Agreement (as novated) in every
way, and it shall undertake and perform and discharge in favour of the Permitted
Transferee each of its obligations whether the same fell or fall to be
performed or arose or arise on, before or after the Novation Date and expressed
to be owed to CEP.


 


10.4      Without prejudice to the automatic
novation of the Transferring Bank’s rights and obligations pursuant to
Clause 10.3, the Company undertakes to sign and return promptly each
acknowledgement of the Novation Notice from time to time delivered to it
promptly following receipt of the same from the Transferring Bank.


 


10.5   For the purposes of this Clause 10 a “Permitted
Transferee” shall mean any holding company, subsidiary or affiliate of
Citigroup Inc.


 


11.    SET-OFF


 


11.1      The Company hereby irrevocably authorises CEP to debit
and credit, on the Company’s behalf, any account or accounts which are held in
the Company’s name with Citibank, N.A.


 


11.2      The Company hereby agrees that Citibank N.A. shall be
entitled to rely on and action any credit or debit made by CEP in accordance
with Clause 11.1.


 


12.    GOVERNING LAW/JURISDICTION


 


This Agreement shall be governed by English law and,
for CEP’s benefit, the Company hereby irrevocably submits to the jurisdiction
of the English Courts in respect of any dispute which may arise from or in
connection with this Agreement. The terms of this Agreement may not be waived,
modified or amended unless such waiver, modification or amendment is in writing
and signed by the parties hereto nor may the Company assign any of its rights
hereunder without CEP’s prior written consent.


 


13.    MISCELLANEOUS
PROVISIONS


 


13.1      Subject to this Clause and to Clause 11.2 a person who
is not a party to this Agreement has no rights under the Contracts (Rights of
Third Parties) Act 1999 (the “Third Parties Act”) to enforce any terms of this
Agreement.


 


13.2      Citibank, N.A. may enforce the terms of Clause 11.2
subject to, and in accordance with, this Clause 13.2 and Clause 12 and the
provisions of the Third Parties Act.


 


13.3      The parties to this Agreement do not require the
consent of Citibank, N.A. to rescind or vary this Agreement at any time.


 


13.4      If Citibank, N.A. brings proceedings to enforce the
terms of Clause 11.2, the Company shall only have available to it by way of
defence, set-off or counterclaim a matter that would have been available by way
of defence, set-off or counterclaim if Citibank, N.A. had been party to this
Agreement.


 


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13.5      Citibank, N.A. may not take proceedings to enforce
Clause 11.2 unless and until it gives notice in writing to the Company in any
manner as is permitted by Clause 9, agreeing irrevocably to the provisions of
Clause 12.


 


13.6      This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one agreement. 
Delivery of an executed counterpart of a signature page of this
letter by facsimile transmission or scanned electronic transmission shall be
effective as delivery of a manually executed counterpart of this agreement.


 


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EXECUTED THIS DAY ABOVE WRITTEN BY:


 


 


	
   

  	
   

  
	
  ARCH REINSURANCE LTD.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Nicolas Papadopoulo

  	
   

  
	
  Nicolas Papadopoulo

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated 6
  November 2009

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AND

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CITIGROUP EUROPE PLC

  	
   

  
	
   

  	
   

  
	
  /s/ Peadar MacCanna

  	
   

  
	
  (Signature(s))

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated 6
  November 2009

  	
   

  



 


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SCHEDULE
ONE


 


Form of
Novation Notice for Clause 10


 


To:                [                     
]


 


Date:


 


Dear Sirs


 


Insurance Letters of Credit —
Master Agreement (Form 3/CEP) dated [        ] and made between Citibank Europe plc
and [                        ] (the “Agreement”)


 


We refer to Clause 10 of the Agreement.  We hereby notify you that we wish to exercise
our option to novate under Clause 10 thereof so that with effect from today’s
date the rights, liabilities and obligations of [name of
Transferring Bank] shall be novated to [name of
Permitted Transferee] in the manner set out in Clause 10 thereof.


 


The relevant address for the purposes of Clauses 3.1 and 9
is as follows:


 


[insert new
address]


 


	
  Yours faithfully

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  for and on behalf of

  	
   

  
	
  [TRANSFERRING BANK]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  for and on behalf of

  	
   

  
	
  [PERMITTED TRANSFEREE]

  	
   

  
	
   

  	
   

  
	
  [NAME OF
  COUNTERPARTY]:

  	
   

  



 


(1)           acknowledges receipt of the Novation Notice;


 


(2)           accepts the novation; and


 


(3)           agrees that with effect from the date of the Novation
Notice the rights, liabilities and obligations
of [                   ]
are novated to [                    ]
in the manner set out in Clause 10 of the Agreement.


 


	
   

  	
   

  
	
  for and on behalf of

  	
   

  
	
  [NAME OF COUNTERPARTY]

  	
   

  



 


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