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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-K

(Mark One)

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2013

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                to                

Commission file number 1-10777

 

 

Ambac Financial Group, Inc.

(Exact name of Registrant as specified in its charter)

 

Delaware   13-3621676
(State of incorporation)   (I.R.S. employer identification no.)

One State Street Plaza

New York, New York

  10004
(Address of principal executive offices)   (Zip code)

(212) 658-7470

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act: None

Securities registered pursuant to Section 12(g) of the Act: None

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes   x     No   ¨

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.  Yes   ¨     No   x

Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes   x     No   ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   x    Non-accelerated filer   ¨    Smaller reporting company   ¨
   (do not check if a smaller reporting company)

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).  Yes   ¨     No   x

Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Section 12, 13, or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.  Yes   ¨     No   ¨

The aggregate market value of voting stock held by non-affiliates of the Registrant as of the close of business on June 30, 2013 was $1,072,408,526. As of February 24, 2014, 45,002,575 shares of Common Stock, par value $0.01 per share, were outstanding.

 

 

Documents Incorporated By Reference

Portions of the Registrant’s proxy statement for its 2014 annual meeting of stockholders are incorporated by reference in this Form 10-K in response to Part III Items 10, 11, 12, 13, and 14.

 

 

 


Table of Contents

TABLE OF CONTENTS

 

          Page  
   Cautionary Statement Pursuant to the Private Securities Litigation Reform Act of 1995      1   

PART I

     
Item 1.    Business   
  

Introduction

     3   
  

Business Segments

  
  

Investments and Investment Policy

     30   
  

Employees

     32   
  

Corporate Governance

     32   

Item 1A.

  

Risk Factors

     32   

Item 1B.

  

Unresolved Staff Comments

     44   

Item 2.

  

Properties

     44   

Item 3.

  

Legal Proceedings

     44   

Item 4.

  

Mine Safety Disclosures

     44   

PART II

     

Item 5.

  

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

     44   

Item 6.

  

Selected Financial Data

     46   

Item 7.

  

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     47   
  

Overview

     47   
  

Critical Accounting Policies and Estimates

     48   
  

Results of Operations

     62   
  

Liquidity and Capital Resources

     72   
  

Balance Sheet

     77   
  

Ambac Assurance Statutory Basis Financial Results

     91   
  

Ambac Assurance UK Limited Financial Results Under UK Accounting Principles

     93   
  

Non-GAAP Financial Measures

     95   

Item 7A.

  

Quantitative and Qualitative Disclosures About Market Risk

     99   

Item 8.

  

Financial Statements and Supplementary Data

     103   

Item 9.

  

Changes in and Disagreements With Accountants on Accounting and Financial Disclosure

     220   

Item 9A.

  

Controls and Procedures

     220   

Item 9B.

  

Other Information

     221   

PART III

     

Item 10.

  

Directors, Executive Officers and Corporate Governance

     222   

Item 11.

  

Executive Compensation

     222   

Item 12.

  

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

     222   

Item 13.

  

Certain Relationships and Related Transactions, and Director Independence

     222   

Item 14.

  

Principal Accountant Fees and Services

     222   

PART IV

     

Item 15.

  

Exhibits, Financial Statement Schedules

     222   
FINANCIAL STATEMENT SCHEDULES      222   
   Schedule I—Summary of Investments Other Than Investments in Related Parties      226   
   Schedule II—Condensed Financial Information of Registrant (Parent Company Only)      227   
   Schedule IV—Reinsurance      236   
SIGNATURES      237   


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CAUTIONARY STATEMENT PURSUANT TO THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995

In this Annual Report, we have included statements that may constitute “forward-looking statements” within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Words such as “estimate,” “project,” “plan,” “believe,” “anticipate,” “intend,” “planned,” “potential” and similar expressions, or future or conditional verbs such as “will,” “should,” “would,” “could,” and “may,” or the negative of those expressions or verbs, identify forward-looking statements. We caution readers that these statements are not guarantees of future performance. Forward-looking statements are not historical facts but instead represent only our beliefs regarding future events, which, may by their nature be inherently uncertain and some of which may be outside our control. These statements may relate to plans and objectives with respect to the future, among other things which may change. We are alerting you to the possibility that our actual results may differ, possibly materially, from the expected objectives or anticipated results that may be suggested, expressed or implied by these forward-looking statements. Important factors that could cause our results to differ, possibly materially, from those indicated in the forward-looking statements include, among others, those discussed under “Risk Factors” in Part I, Item 1A of this Annual Report on Form 10-K.

Any or all of management’s forward-looking statements here or in other publications may turn out to be incorrect and are based on management’s current belief or opinions. Ambac’s actual results may vary materially, and there are no guarantees about the performance of Ambac’s securities. Among events, risks, uncertainties or factors that could cause actual results to differ materially are: (1) volatility in the price of Ambac’s common stock; (2) uncertainty concerning our ability to achieve value for holders of Ambac securities, whether from Ambac Assurance Corporation (“Ambac Assurance”) or from new business opportunities; (3) our inability to achieve the financial results projected during our Chapter 11 proceeding; (4) potential of rehabilitation proceedings against Ambac Assurance; (5) decisions made by the rehabilitator of the Segregated Account of Ambac Assurance Corporation (the “Segregated Account”) for the benefit of policyholders that may result in material adverse consequences for Ambac’s security holders; (6) our inability to realize the expected recoveries included in our financial statements; (7) intercompany disputes or disputes with the rehabilitator of the Segregated Account; (8) material changes to the Segregated Account rehabilitation plan or to current rules and procedures governing the payment of permitted policy claims, with resulting adverse impacts; (9) increased fiscal stress experienced by issuers of public finance obligations or an increased incidence of Chapter 9 filings by municipal issuers; (10) adverse events arising from the rehabilitation proceedings for the Segregated Account, including the failure of the injunctions issued by the Wisconsin rehabilitation court to protect the Segregated Account and Ambac Assurance from certain adverse actions; (11) adverse tax consequences or other costs resulting from the Segregated Account rehabilitation plan or from rules and procedures governing the payment of permitted policy claims; (12) credit risk throughout our business, including but not limited to credit risk related to residential mortgage-backed securities, student loan and other asset securitizations, collateralized loan obligations, public finance obligations and exposures to reinsurers; (13) risks attendant to the change in composition of securities in our investment portfolio; (14) inadequacy of reserves established for losses and loss expenses; (15) the risk that our risk management policies and practices do not anticipate certain risks and/or the magnitude of potential for loss as a result of unforeseen risks; (16) changes in prevailing interest rates; (17) factors that may influence the amount of installment premiums paid to Ambac, including the Segregated Account rehabilitation proceedings; (18) default by one or more of Ambac Assurance’s portfolio investments, insured issuers or counterparties; (19) market risks impacting assets in our investment portfolio or the value of our assets posted as collateral in respect of investment agreements and interest rate swap transactions; (20) risks relating to determinations of amounts of impairments taken on investments; (21) credit and liquidity risks due to unscheduled and unanticipated withdrawals on investment agreements; (22) the risk of litigation and regulatory inquiries or investigations, and the risk of adverse outcomes in connection therewith, which could have a material adverse effect on our business, operations, financial position, profitability or cash flows; (23) system security risks; (24) the effects of U.S. fiscal policies; (25) market spreads and pricing on derivative products insured or issued by Ambac or its subsidiaries; (26) the risk of volatility in income and earnings, including volatility due to the application of fair value accounting; (27) changes in accounting principles or practices that may impact

 

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Ambac’s reported financial results; (28) legislative and regulatory developments; (29) operational risks, including with respect to internal processes, risk models, systems and employees, and failures in services or products provided by third parties; (30) Ambac’s financial position and the Segregated Account rehabilitation proceedings that may prompt departures of key employees and may impact our ability to attract qualified executives and employees; and (31) other risks and uncertainties that have not been identified at this time.

 

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Part I

 

Item 1. Business

INTRODUCTION

Ambac Financial Group, Inc. (“Ambac” or the “Company”), headquartered in New York City, is a financial services holding company incorporated in the State of Delaware on April 29, 1991. On May 1, 2013 (the “Effective Date”), Ambac emerged from Chapter 11 bankruptcy protection when the Second Modified Fifth Amended Plan of Reorganization of Ambac Financial Group, Inc. (the “Reorganization Plan”) became effective. On December 26, 2013, the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) entered an order of final decree closing Ambac’s Chapter 11 case. Ambac filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court on November 8, 2010 as a result of losses incurred since the beginning of the financial crisis in 2007. Refer to Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K for further discussion of Ambac’s bankruptcy.

Ambac has two reportable business segments: Financial Guarantee and Financial Services.

Ambac’s Financial Guarantee business segment is conducted through its primary operating subsidiary, Ambac Assurance Corporation (“Ambac Assurance”), and its wholly owned subsidiary, Ambac Assurance UK Limited. (“Ambac UK”). Insurance policies insured by Ambac Assurance and Ambac UK guarantee payment when due of the principal and interest on the obligation guaranteed. Ambac Assurance also has another wholly-owned financial guarantee subsidiary, Everspan Financial Guarantee Corp. (“Everspan”), which has been in runoff since its acquisition in 1997. The deterioration of Ambac Assurance’s financial condition resulting from losses in its insured portfolio since 2007 has prevented Ambac Assurance from being able to write new business. An inability to write new business has and will continue to negatively impact Ambac’s future operations and financial results. Ambac Assurance’s ability to pay dividends and, as a result, Ambac’s liquidity, have been significantly restricted by the deterioration of Ambac Assurance’s financial condition, by the rehabilitation of the Segregated Account (defined below) and by the terms of the Settlement Agreement, dated as of June 7, 2010, by and among Ambac Assurance, Ambac Credit Products LLC (“ACP”), Ambac and counterparties to credit default swaps with ACP that were guaranteed by Ambac Assurance. Ambac Assurance is also restricted in its ability to pay dividends pursuant to the terms of its Auction Market Preferred Shares. It is highly unlikely that Ambac Assurance will be able to make dividend payments to Ambac for the foreseeable future. Refer to Part I, Item 1, “Insurance Regulatory Matters – Dividend Restrictions, Including Contractual Restrictions” and Note 9 to the Consolidated Financial Statements located in Part II, Item 8, for more information on dividend payment restrictions.

In March 2010, Ambac Assurance established a segregated account pursuant to Wisconsin Stat. §611.24(2) (the “Segregated Account”) to segregate certain segments of Ambac Assurance’s liabilities. The Office of the Commissioner of Insurance for the State of Wisconsin (“OCI” (which term shall be understood to refer to such office as regulator of Ambac Assurance and to refer to the Commissioner of Insurance for the State of Wisconsin as rehabilitator of the Segregated Account (the “Rehabilitator”), as the context requires)) commenced rehabilitation proceedings in the Wisconsin Circuit Court for Dane County (the “Rehabilitation Court”) with respect to the Segregated Account (the “Segregated Account Rehabilitation Proceedings”) in order to permit the OCI to facilitate an orderly run-off and/or settlement of the liabilities allocated to the Segregated Account pursuant to the provisions of the Wisconsin Insurers Rehabilitation and Liquidation Act. Ambac Assurance is not, itself, in rehabilitation proceedings. Refer to Note 1 to the Consolidated Financial Statements located in Part II, Item 8, for more information on the Segregated Account.

Ambac’s Financial Services business segment is conducted through its financial services subsidiaries, which provide financial and investment products, including investment agreements, funding conduits and interest rate swaps, principally to the clients of its financial guarantee business. Ambac Assurance insured all of the

 

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obligations of its financial services subsidiaries. These businesses are in active runoff, which is being effectuated by means including transaction terminations, settlements, and scheduled amortization of contracts. The Financial Services business also maintains interest rate derivatives to mitigate exposure to floating rate insured obligations in the Financial Guarantee segment.

Following emergence from bankruptcy, Ambac’s primary goal is to maximize shareholder value through executing the following key strategies:

 

   

Increasing the value of its investment in Ambac Assurance by actively managing its assets and liabilities with a focus on maximizing investment portfolio risk-adjusted returns and mitigating or remediating losses on poorly performing transactions through executing policy commutations, repurchasing liabilities at a discount, pursuing recoveries of losses through litigation and the exercise of contractual and legal rights, restructuring transactions; and other means; and

 

   

Pursuing new financial services businesses, apart from Ambac Assurance. These new businesses may include advisory, asset servicing, asset management and/or insurance. .

Opportunities for de-risking transactions depend on market conditions, including the perception of Ambac Assurance’s creditworthiness, the structure of the underlying risk and associated policy, as well as other factors. Ambac Assurance’s ability to further commute policies or purchase securities may be limited by available liquidity. The execution of Ambac’s strategy with respect to liabilities and associated rights allocated to the Segregated Account is subject to the authority of the Rehabilitator to control the management of the Segregated Account. In exercising such authority, the Rehabilitator will act for the benefit of policyholders, and will not take into account the interests of Ambac. Similarly, by operation of the contracts executed in connection with the establishment, and subsequent rehabilitation, of the Segregated Account, the Rehabilitator retains rights to oversee and approve certain actions taken in respect of Ambac Assurance. This oversight by the Rehabilitator could impair Ambac’s ability to execute certain of its strategies. Refer to Note 1 to the Consolidated Financial Statements located in Part II, Item 8, for more information on the contracts between Ambac Assurance and the Segregated Account.

Although we are exploring new business opportunities for Ambac, no assurance can be given that we will be able to identify or execute the acquisition or development of any new business. In addition there can be no assurance that we will be able to generate or obtain the financial and other resources that may be required to finance the acquisition or development of any new business. Due to these factors, as well as uncertainties relating to the ability of Ambac Assurance to deliver value to Ambac, the value of our securities is speculative. For additional risks and uncertainties concerning Ambac, please refer to Part I, Item 1A of this Form 10-K.

We followed the accounting prescribed by the Reorganizations Topic of the ASC from the period starting with Ambac’s bankruptcy filing through to our emergence from bankruptcy. Following the Company’s emergence from bankruptcy on May 1, 2013, the consolidated financial statements reflect the application of fresh start reporting (“Fresh Start”), incorporating, among other things, the discharge of debt obligations, issuance of new common stock, and fair value adjustments. The effects of the reorganization and Fresh Start adjustments are recorded in Predecessor Ambac’s Consolidated Statement of Total Comprehensive Income for the period ended April 30, 2013. The financial results of the Company for the periods from May 1, 2013 are referred to as “Successor” and the financial results for the periods through April 30, 2013 (“Fresh Start Reporting Date”) are referred to as “Predecessor.” The 2013 Successor Period and the 2013 Predecessor Period are distinct reporting periods. The effects of emergence and Fresh Start had a material impact on the comparability of our results of operations between these periods, as discussed below. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations” located in Part II, Item 7 of this Form 10-K for further information.

Our Internet address is www.ambac.com. We make available free of charge, through the investor relations section of our web site, annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on

 

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Form 8-K, and any amendments to those reports, filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, as well as proxy statements, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the U.S. Securities and Exchange Commission. Our Investor Relations Department can be contacted at Ambac Financial Group, Inc., One State Street Plaza, New York, New York 10004, Attn: Investor Relations, telephone: 212-208-3222. The reference to our website address does not constitute inclusion or incorporation by reference of the information contained on our website in this Form 10-K or other filings with the SEC, and the information contained on our website is not part of this document.

Financial information concerning our business segments for each of 2013 and 2012 is set forth in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Quantitative and Qualitative Disclosures About Market Risk,” and the Consolidated Financial Statements and the Notes thereto, included elsewhere in this Form 10-K.

Financial Guarantee Segment

The Financial Guarantee segment includes insurance policies and credit derivative contracts. Generally, financial guarantees provide an unconditional and irrevocable guarantee which protects the holder of a debt obligation against non-payment when due. Pursuant to such guarantees, Ambac Assurance and its subsidiaries make payments if the obligor responsible for making payments fails to do so when scheduled. Credit derivatives permit certain counterparties to assert mark-to-market termination claims; however, the assertion of such mark-to-market claims has been enjoined by the Rehabilitation Court. See discussion of “Ambac Assurance Liquidity” in Part II, Item 7 included in this Form 10-K for further information.

Ambac’s financial guarantee insurance policies and credit derivative contracts expose the company to the direct credit risk of the assets and/or obligors supporting the guaranteed obligation. In addition to such direct credit exposure, Ambac’s insured transactions expose us to indirect risks that may increase our overall risk, such as credit risk separate from, but correlated with, our direct credit risk, market risk, model risk, economic risk, natural disaster risk and mortality or other non credit type risks.

Ambac Assurance derives financial guarantee revenues from: (i) premiums earned from insurance contracts; (ii) net investment income; (iii) revenue from credit derivative transactions; (iv) net realized gains and losses from sales of investment securities; and (v) amendment and consent fees. Financial guarantee expenditures include (i) loss and commutation payments for credit exposures that have experienced significant credit deterioration and/or default; (ii) loss-related expenses, including those relating to the remediation of problem credits, and (iii) operating expenses. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations” located in Part II, Item 7 of this Form 10-K for further information. Prior to the discontinuance of the issuance of new financial guarantees, premiums for financial guarantees were received either upfront (typical of public finance obligations) or on an installment basis from the cash flows generated by the underlying assets (typical of structured finance obligations). Despite not underwriting new business, Ambac continues to collect premiums on its existing portfolio of guarantees that pay premiums on an installment basis.

Risk Management

Ambac’s Asset Liability Management Committee (“ALCO”) is a multidisciplinary committee with the objective to implement and foster an enterprise wide culture and approach to liquidity management, asset valuation, hedging, and risk remediation. Members of ALCO include the Chief Executive Officer, Chief Financial Officer and senior managers from investment management, capital markets and risk management. ALCO has scheduled monthly meetings and will also meet on an ad hoc basis to consider, for example, the commutation of distressed financial guarantee exposures.

 

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The insured portfolio Risk Management group is primarily responsible for the development, implementation and oversight of loss mitigation strategies, surveillance and remediation of the financial guarantee portfolio (including through the pursuit of recoveries in respect of paid claims and commutations of policies). These activities are integral to Ambac’s strategy of mitigating losses on poorly performing transactions. As a consequence of the Segregated Account Rehabilitation Proceedings, the Rehabilitator retains operational control and decision-making authority with respect to all matters related to the Segregated Account, including surveillance, remediation and loss mitigation. The Rehabilitator operates the Segregated Account through a management services contract executed between Ambac Assurance and the Segregated Account pursuant to which the Risk Management group provides surveillance, remediation and loss mitigation services to the Segregated Account.

Furthermore, by virtue of the contracts executed between Ambac Assurance and the Segregated Account, the Rehabilitator retains the discretion to oversee and approve certain actions taken by Ambac Assurance in respect of assets and liabilities that have not been allocated to the Segregated Account. Refer to Note 1 to the Consolidated Financial Statements located in Part II, Item 8, for more information on the contracts between Ambac Assurance and the Segregated Account. As such, the following discussion of Ambac’s risk management practices is qualified by reference to the Rehabilitator’s exercise of its discretion to alter or eliminate any of these risk management practices.

Ambac’s risk management function for the insured portfolio has an organizational structure designed around the two major areas of focus: Portfolio Risk Management and Analysis (“PRM”) and Credit Risk Management (“CRM”). As a result of the current credit and economic environment, Ambac heightened its surveillance efforts on all exposures, focusing on the identification of credits and asset types across the portfolio that were likely to experience increased stress or potential for losses. The senior managers within the risk management groups report directly to the Chief Executive Officer and regularly inform and update the Audit Committee of the Board of Directors of Ambac and Ambac Assurance with respect to risk-related topics in the insured portfolio.

Portfolio Risk Management and Analysis

This group’s focus is on remediation, loss mitigation, risk reduction and surveillance. Risk Management personnel perform periodic surveillance reviews of exposures according to a schedule based on the risk profile of the guaranteed obligations or as necessitated by specific credit events or other macro-economic variables. The monitoring activities are designed to detect deterioration in credit quality or changes in the economic, regulatory or political environment which could adversely impact the portfolio. Active surveillance enables PRM to track single credit migration and industry credit trends. In some cases, PRM will engage workout experts or attorneys and other consultants with appropriate expertise in the targeted loss mitigation area to assist management in examining the underlying contracts or collateral, providing industry specific advice and/or executing strategies.

Analysts review, on a regular and ad hoc basis, credits in the book of business. Risk-adjusted surveillance strategies have been developed for each bond type with review periods and scope of review based upon each bond type’s risk profile. The risk profile is assessed regularly in response to our own experience and judgments or external factors such as the economic environment and industry trends. The focus of the surveillance review is to assess performance, identify credit trends and recommend appropriate credit classifications, ratings and changes to a transaction or bond type’s review period. If a problem is detected, the group focuses on loss mitigation by recommending appropriate action and working with the issuer, trustee, bond counsel, servicer and other interested parties in an attempt to remediate the problem and minimize Ambac Assurance’s exposure to potential loss. Those credits that are either in default or have developed problems that eventually may lead to a default or claim payment are tracked closely by the appropriate surveillance team, senior risk managers and discussed at regularly scheduled meetings with CRM (see discussion following in “Credit Risk Management”).

 

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In structured transactions, including structured public finance transactions, Ambac Assurance often is the control party as a result of insuring the transaction’s senior class or tranche. The control party may direct specified parties, usually the trustee, to take or not take certain actions following contractual defaults or trigger events. Control rights and the scope of direction and remedies vary considerably among our insured transactions. Because Ambac Assurance is party to and/or has certain rights in documents supporting transactions in the insured portfolio, Ambac Assurance frequently receives requests for amendments, waivers and consents (“AWCs”). As discussed below under “Credit Risk Management,” Ambac Assurance’s risk management personnel review, analyze and process all requests for AWCs. As a part of the Segregated Account Rehabilitation Proceedings, the Rehabilitation Court enjoined parties to preserve Ambac’s control rights that could otherwise have lapsed or been compromised.

Surveillance for collateral dependent transactions, including, but not limited to, residential mortgage-backed securities (“RMBS”), asset-backed securities (“ABS”) and student loan transactions, focuses on review of the underlying asset cash flows and, if applicable, the performance of servicers or collateral managers. Ambac Assurance generally receives periodic reporting of transaction performance from issuers or trustees. Risk analysts review these reports to monitor performance and, if necessary, seek legal or accounting advice to assure that reporting and application of cash flows comply with transaction requirements.

Proactive credit remediation can help to reduce exposure and/or reduce risk in the insured portfolio by securing rights and remedies, both of which help to mitigate losses in the event of default. The emphasis on reducing risk is centered on reducing enterprise-wide exposure on a prioritized basis.

Cross-functional teams have been established by senior risk managers in PRM to promote the active mitigation and/or targeted remediation of the insured portfolio. Examples of such teams include teams of professionals focused on (i) the review and enforcement of contractual representations and warranties in RMBS policies, (ii) RMBS servicing oversight and transfer and (iii) the analysis and prioritization of policies to target and execute risk reduction and commutation strategies. The establishment and purview of cross-functional teams is targeted to address our highest risk exposures. Members of such teams work with both internal and external experts in the pursuit of risk reduction on all fronts.

The RMBS servicing oversight team focuses on servicer oversight and remediation. Analysts monitor the performance of servicers through a combination of (i) regular reviews of servicer performance; (ii) compliance certificates received from servicer management; (iii) independent rating agency information; (iv) a review of servicer financial information; and (v) onsite servicing diligence. Servicer performance reviews typically include a review of collateral performance, including comparisons against benchmarks, as well as the processes of collection, default management, and loss mitigation. Ambac Assurance may require a back-up servicer or require “term-to-term” servicing which provides for limited, renewable servicing terms in order to provide greater flexibility regarding the servicing arrangements of a particular transaction.

In some transactions, Ambac Assurance has the right to direct a transfer of servicing to an alternative servicer, subject to certain conditions. The decision to exercise this right is made based on various factors, including an assessment of the performance of the existing servicer as outlined above, and an assessment of whether a transfer of servicing may improve the performance of the collateral and reduce risk to Ambac Assurance. Ambac Assurance assesses potential transferee servicers through on-site servicer reviews and reviews of servicer financial information. Accordingly, Ambac Assurance has developed relationships with preferred servicers in the residential mortgage backed sector. Preferred servicers are selected through a formalized servicer review process that determines, among other key factors, the servicer’s ability and willingness to actively manage intense and proven loss mitigation activities on RMBS. Ambac Assurance may decide to exercise its rights to direct the transfer of servicing to a preferred servicer. The transfer of servicing is done with the objectives of (i) minimizing losses and distress levels by deploying targeted and enhanced loss mitigation

 

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programs; (ii) increasing visibility to Ambac Assurance of all servicing activities that impact overall deal performance; and (iii) better aligning the servicer’s financial interest to the performance of the underlying deal through the utilization of performance based incentives. Ambac Assurance believes that the improved loss mitigation activities, alignment of interests and close monitoring of the preferred servicers constitute credible means of minimizing risks and losses related to selected Ambac Assurance insured RMBS.

A team of professionals has also been established to focus on recoveries from sponsors where Ambac Assurance believes that a material breach of representations and warranties has occurred with respect to certain RMBS policies. The team monitors monthly performance of the RMBS insured portfolio and uses criteria to determine which transactions to pursue with regard to such recoveries. The team engages experienced consultants to perform the re-underwriting of loan files and consult with internal and external legal counsel with regard to loan putbacks as well as settlement and litigation strategies (refer to Note 8 to the Consolidated Financial Statements included in Part II, Section 8 of this Form 10–K for further discussion on this topic).

The risk restructuring group focuses on the analysis, implementation and execution of commutation and related claims reduction or defeasance strategies primarily for policies allocated to the Segregated Account. Analysts evaluate the estimated timing and severity of projected policy claims as well as the potential impact of other loss mitigation strategies in order to target and prioritize policies, or portions thereof, for commutation, refinancing, bond purchase (of securities guaranteed by Ambac Assurance), or other claims reduction or defeasance strategies. For targeted policies, analysts will engage with bondholders, issuers and other economic stakeholders to negotiate, structure, and execute such strategies.

Credit Risk Management

CRM manages the decision process for all material matters that affect credit exposures within the insured portfolio. While PRM is responsible for the credit analysis and the recommendation and execution of credit remediation strategies, CRM provides a forum for independent assessments and sign-offs and drives consistency and timeliness. The scope of credit matters under the purview of CRM includes material amendments, waivers and consents, remediation plans, credit review scheduling, adverse credit classification and below investment grade rating designations, adversely classified credit reviews, sector reviews, and overall portfolio review. The decision process may involve a review of structural, legal, political and credit issues and also includes determining the proper level of approval, which varies based on the nature and materiality of the matter. Please refer to Note 2 to the Consolidated Financial Statements in Item 8 of this Form 10-K for further discussion of the various credit classifications.

Adversely Classified Credit Review

Credits that are either in default or have developed problems that eventually may lead to a default are tracked closely by the appropriate PRM surveillance team and discussed at meetings with CRM. Adversely classified credit meetings include members of CRM, PRM surveillance and legal analysts, as necessary. As part of the review, relevant information, along with the plan for corrective actions and a reassessment of the credit’s rating and credit classification is considered. Internal and/or external counsel generally review the documents underlying any problem credit and, if applicable, an analysis is prepared outlining Ambac Assurance’s rights and potential remedies, the duties of all parties involved and recommendations for corrective actions. Ambac Assurance also meets with relevant parties to the transaction as necessary. The review schedule for adversely classified credits is tailored to the remediation plan to track and prompt timely action and proper internal and external resourcing. A summary of developments regarding the adversely classified credits and credit trends is also provided to Ambac’s and Ambac Assurance’s Board of Directors no less than on a quarterly basis.

The insured portfolio contains exposures that are correlated and/or concentrated. Ambac’s surveillance includes identifying these types of exposures and identifying the risks that would or could trigger credit

 

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deterioration across the related exposures. When such risks occur, adverse credit classification may be warranted across many of the correlated and/or concentrated exposures. This is the case with student loans and RMBS, for example. In the past, our not for profit healthcare and our leveraged lease exposures experienced periods of stress arising from their concentrated and/or correlated risks. In the future, Ambac’s portfolio may be subject to similar credit deterioration arising from concentrated and/or correlated risks. Examples of other such risks that could impact our portfolio, and that our surveillance is designed to monitor include the impact of potential municipal bankruptcy contagion or large scale domestic military cutbacks on our military housing portfolio or event risk such as natural disasters or other regional stresses. Most such risks cannot be predicted, and may materialize unexpectedly or develop rapidly. Although our surveillance allows us to connect the event and stress to the related exposures and assign an adverse credit classification and estimate losses across the affected credits, when necessary, we may not have adequate resources or contractual rights and remedies to mitigate loss arising from such risks.

Amendment, Waiver and Consent Review / Approval

The decision to approve or reject AWCs is based upon certain credit factors, such as the issuer’s ability to repay the bonds and the bond’s security features and structure. Members of Ambac Assurance’s PRM risk management group review, analyze and process all requests for AWCs. All AWCs are initially screened for materiality in the surveillance groups. Non-material AWCs require the approval of at least a PRM surveillance analyst and a portfolio risk manager. Material AWCs are within the purview of CRM, as noted above. For material AWCs, CRM has established minimum requirements that may be modified to require more or varied approvals depending upon the matter’s complexity, size or other characteristics.

Ambac Assurance assigns internal credit ratings to individual exposures as part of the AWC process and at surveillance reviews. These internal credit ratings, which represent Ambac Assurance’s independent judgments, are based upon underlying credit parameters consistent with the exposure type.

Investment Securities

Ambac manages credit risk associated with its investment portfolio through adherence to specific investment guidelines. These guidelines establish limits based upon single risk, asset type, and minimum credit rating standards. Additionally, senior credit personnel monitor the portfolio on a continuous basis. Credit monitoring of the investment portfolio includes procedures on residential mortgage-backed securities consistent with those utilized to assess the risk of our insured RMBS exposures.

Derivatives

Credit risks relating to derivative positions primarily concern the default of a counterparty. Counterparty default exposure on derivatives (other than credit derivatives) is mitigated through the use of industry standard collateral posting agreements. For counterparties subject to such collateral posting agreements, collateral is posted when a derivative counterparty’s credit exposure exceeds contractual limits. Derivative contracts entered into with financial guarantee customers are not subject to collateral posting agreements. Credit risk associated with such customer derivatives, including credit derivatives, is managed through the financial guarantee portfolio risk management processes described above. In some cases, derivatives between Ambac and financial guarantee customers are placed through a third party financial intermediary and similarly do not require collateral posting. These transactions include structural mechanisms such as separate trust accounts to mitigate credit exposure to the intermediary.

 

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Reinsurance

Ambac Assurance has reinsurance in place pursuant to surplus share treaty and facultative agreements. To minimize its exposure to losses from reinsurers, Ambac Assurance (i) monitors the financial condition of its reinsurers; (ii) is entitled to receive collateral from its reinsurance counterparties in certain reinsurance contracts; and (iii) has certain cancellation rights that can be exercised by Ambac Assurance in the event of rating agency downgrades of a reinsurer (among other events and circumstances). Ambac Assurance held letters of credit and collateral amounting to approximately $153.1 million from its reinsurers at December 31, 2013. As of December 31, 2013, the aggregate amount of insured par ceded by Ambac Assurance to reinsurers under reinsurance agreements was $18,598 million, with the largest reinsurer accounting for $16,617 million or 8.4% of gross par outstanding at December 31, 2013. The following table represents the percentage ceded to reinsurers and reinsurance recoverable at December 31, 2013 and the reinsurers’ rating levels as of February 28, 2014:

 

Reinsurers

   Moody’s
Rating
     Moody’s
Outlook
     Percentage
ceded Par
    Net unsecured
reinsurance
recoverable
(in thousands) (1)
 

Assured Guaranty Re Ltd

     Baa1         Stable         89.35   $ 58,066  

Sompo Japan Insurance Inc

     A1         Stable         6.24        —     

Assured Guaranty Corporation

     A3         Stable         4.41        5,187   
        

 

 

   

 

 

 

Total

           100.0   $ 63,253   
        

 

 

   

 

 

 

 

(1) Represents reinsurance recoverables on paid and unpaid losses and deferred ceded premiums, net of ceded premium payables due to reinsurers, letters of credit, and collateral posted for the benefit of the Company.

Financial Guarantees in Force

Financial guarantee products were sold in three principal markets: U.S. public finance, U.S. structured finance and asset-backed and international finance. The following table provides a breakdown of guaranteed net par outstanding by market sector at December 31, 2013 and December 31, 2012. Guaranteed net par outstanding includes the exposures of policies that insure variable interest entities (“VIEs”) consolidated in accordance with ASC Topic 810, Consolidation. Guaranteed net par outstanding excludes the exposures of policies that insure bonds which have been refunded or pre-refunded:

 

     Successor Ambac     Predecessor Ambac  

($ in millions)

   December 31,
2013
    December 31,
2012
 

Public Finance

   $ 116,062      $ 143,018   

Structured Finance

     31,412        42,359   

International Finance

     31,618        38,256   
  

 

 

   

 

 

 

Total net par outstanding

   $ 179,092      $ 223,633   
  

 

 

   

 

 

 

Included in the above net par exposures at December 31, 2013 and 2012 are $2,776 and $11,282, respectively, of exposures that were executed in the form of credit derivatives, primarily collateralized loan exposures. See Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Item 8, “Financial Statements and Supplementary Data” for further discussion of credit derivative exposures.

U.S. Public Finance Insured Portfolio

Ambac’s portfolio of U.S. public finance exposures is $116,062 million, representing 65% of Ambac’s net par outstanding as of December 31, 2013 and a 19% reduction from outstandings at December 31, 2012. This

 

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reduction in exposure was mainly the result of lease and tax-backed terminations and normal exposure runoff. While Ambac’s U.S. public finance portfolio consists predominately of municipal issuances such as general and revenue obligations, and lease and tax-backed obligations of state and local government entities (including tax allocation bonds as described further below), the portfolio also comprises a wide array of non-municipal types of issuances, including financings for not-for-profit entities and transactions with public and private elements, which generally finance infrastructure, housing and other public interests.

Municipal issuance is generally supported directly or indirectly by the issuer’s taxing authority or by public sector fees and assessments which may or may not be specifically pledged. Risk factors in these transactions derive from the municipal issuer, including its fiscal management, politics, and economic position, as well as its ability and willingness to continue to pay their debt service while undergoing severe stress. Municipal bankruptcy, while still uncommon, has increased, exposing Ambac to the risk of liquidity claims and ultimate losses if issuers cannot successfully adjust their liabilities without impairing debt creditors.

Not-for-profit transactions are generally supported by the not-for-profit entities’ net revenues and may also include specific pledges, liens and/or mortgages. The entity typically serves a well-defined market and promulgates a public purpose mission. These transactions may afford Ambac contractual protections such as financial covenants and control rights in the event of issuer breaches and defaults. Risk factors in these transactions derive from the creditworthiness of the issuer, including but not limited to its financial condition, leverage, management, business mix, competitive position, industry and socioeconomic trends, government programs, etc. Examples of these types of transactions include not-for-profit hospitals and universities, charities, associations and museums.

Public/private transactions are generally structured to achieve their targeted public interest objective without direct support from the public sector. Some examples of this type of financing include affordable housing, private education, and privatized military and student housing. Protections within these financings provided to Ambac usually include the strength of the financed asset’s essentiality and public purpose, financial covenants, security and control rights. Risk factors include financial underperformance, event risk and a shift in the asset’s mission or essentiality. One example of this type of financing is U.S. military housing. Ambac insures approximately $6.2 billion of privatized military housing debt. The debt was issued to finance the construction and/or renovation of housing units for military personnel and their families on domestic U.S. military bases. Debt service is not directly paid or guaranteed by the U.S. Government. Rather, the bonds are serviced from the cash flow generated by rental payments deposited by the military directly into lockbox accounts as part of each service personnel’s Basic Allowance for Housing (BAH). Security for these transactions includes the BAH payments as well as an interest in the ground lease. Risk factors affecting these transactions include the ongoing base essentiality, military deployments, the U.S. government’s commitment to fund the BAH, the marketability/attractiveness of the on-base housing units versus off base housing, construction completion, environmental remediation, utility and other operating costs and housing management.

Certain issuers in our public finance portfolio have issued floating rate debt, which may introduce interest rate risk to Ambac Assurance. Refer to Auction Rate Securities and Variable Rate Demand Obligation Exposures below for further discussion. See Note 7 to the Consolidated Financial Statements, located in Part II, Item 8 of this Form 10-K for exposures by bond type.

 

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The table below shows Ambac’s ten largest U.S. public finance exposures, by repayment source, as a percentage of total financial guarantee net par outstanding at December 31, 2013:

 

($ in millions)

   Ambac
Ratings (1)
     Net Par
Outstanding
     % of Total
Net Par
Outstanding
 

California State—GO

     A       $ 2,652         1.5

New Jersey Transportation Trust Fund Authority—Transportation System

     A+         1,915         1.1

NYS Thruway Authority, Highway & Bridge Revenue

     AA-         1,246         0.7

Massachusetts School Building Authority, MA, Sales Tax Revenue

     AA         1,230         0.7

Massachusetts Commonwealth—GO

     AA         1,182         0.7

Washington State—GO

     AA         923         0.5

Los Angeles Unified School District, CA—GO

     AA-         895         0.5

Sales Tax Asset Receivable Corporation, NY, Revenue

     A         846         0.5

Puerto Rico Sales Tax Financing Corporation (2)

     BBB-         805         0.4

Puerto Rico Highways & Transportation Authority, Transportation Revenue (2)(3)

     BIG         733         0.4
     

 

 

    

 

 

 

Total

      $ 12,427         6.9
     

 

 

    

 

 

 

 

(1) Internal credit ratings are provided solely to indicate the underlying credit quality of guaranteed obligations based on the view of Ambac Assurance. In cases where Ambac Assurance has insured multiple tranches of an issue with varying internal ratings, or more than one obligation of an issuer with varying internal ratings, a weighted average rating is used. Ambac Assurance credit ratings are subject to revision at any time and do not constitute investment advice. Ambac Assurance, or one of its affiliates, has guaranteed the obligations listed and may also provide other products or services to the issuers of these obligations for which Ambac Assurance may have received premiums or fees. “BIG” denotes credits deemed below investment grade.
(2) Ambac Assurance has total net par outstanding to Puerto Rico of $2,485.
(3) Ambac Assurance has allocated an insurance policy on the obligor’s interest rate swap liabilities to the Segregated Account.

U.S. Structured Finance and Asset-Backed Insured Portfolio

Ambac’s portfolio of U.S. structured finance exposures is $31,412 million, representing 17% of Ambac’s net par outstanding as of December 31, 2013 and a 26% reduction from outstandings at December 31, 2012. This reduction in exposure was the result of terminations of collateralized debt obligations (“CDO”) and normal exposure runoff. Insured exposures include securitizations of mortgage loans, home equity loans, student loans, leases, operating assets, CDOs, collateralized loan obligations (“CLO”), and other asset-backed financings, in each case where the majority of the underlying collateral risk is situated in the United States. Additionally, Ambac’s structured finance insured portfolio encompasses both secured and unsecured debt issued by investor-owned utilities. Included within the operating asset sector are securitizations of aircraft, shipping containers and rail car fleets. See Note 7 to the Consolidated Financial Statements, located in Part II, Item 8 in this Form 10-K for exposures by bond type as of December 31, 2013.

Structured finance exposures generally entail three forms of risks: (i) asset risk, which relates to the amount and quality of the underlying assets; (ii) structural risk, which relates to the extent to which the transaction’s legal structure and credit support provide protection from loss; and (iii) servicer risk, which is the risk that poor performance at the servicer or manager level contributes to a decline in cash flow available to the transaction. Ambac Assurance seeks to mitigate and manage these risks through its risk management practices.

 

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Structured securities are usually designed to help protect the investors and, therefore, the guarantor from the bankruptcy or insolvency of the entity that originated the underlying assets as well as from the bankruptcy or insolvency of the servicer of those assets. The servicer of the assets is typically responsible for collecting cash payments on the underlying assets and forwarding such payments, net of servicing fees, to a trustee for the benefit of the issuer. One potential issue is whether the sale of the assets by the originator to the issuer would be upheld in the event of the bankruptcy or insolvency of the originator and whether the servicer of the assets may be permitted or stayed from remitting to investors cash collections held by it or received by it after the servicer or the originator becomes subject to bankruptcy or insolvency proceedings. Another potential issue is whether the originator sold ineligible assets to the securitization transaction that subsequently deteriorated, and, if so, whether the originator has the willingness or financial wherewithal to meet its contractual obligations to repurchase those assets out of the transaction. Structural protection in a transaction, such as control rights that are typically held by the senior note holders, or guarantor in insured transactions, will determine the extent to which underlying asset performance can be influenced upon non-performance to improve the revenues available to cover debt service.

The following table presents the top five servicers by net par outstanding at December 31, 2013 for U.S. structured finance exposures:

 

Servicer

   Bond Type    Net Par
Outstanding
 
($ in millions)            

Bank of America N.A.

   Mortgage-backed    $ 4,060   

Specialized Loan Servicing, LLC

   Mortgage-backed    $ 2,861   

Pennsylvania Higher Education Assistance Agency

   Student Loan    $ 2,432   

Ocwen Loan Servicing, LLC

   Mortgage-backed    $ 2,155   

Wells Fargo Bank

   Mortgage-backed    $ 1,830   

The table below shows Ambac’s ten largest structured finance transactions, as a percentage of total financial guarantee net par outstanding at December 31, 2013:

 

($ in millions)

  Ambac
Rating (1)
  Net Par
Outstanding
    % of Total
Net Par
Outstanding
    Bond Type  

Wachovia Asset Securitization Issuance II, LLC 2007-HE2 (2)

  BIG   $ 986        0.6     Home Equity Loan   

Ballantyne Re Plc (3)

  BIG     900        0.5     Structured Insurance   

The National Collegiate Student Loan Trust 2007-4 (2)

  BIG     755        0.4     Student Loan   

Spirit Master Funding

  BBB     740        0.4     Asset Securitizations   

Wachovia Asset Securitization Issuance II, LLC 2007-HE1 (2)

  BIG     687        0.4     Home Equity Loan   

Timberlake Financial, LLC

  BIG     611        0.3     Structured Insurance   

Michigan Higher Education Student Loan Authority (2)

  BIG     581        0.3     Student Loan   

Progress Energy Carolinas, Inc

  A-     558        0.3     Investor Owned Utility   

Local Insight Media Finance LLC

  BIG     489        0.3     Asset Securitizations   

Option One Mortgage Loan Trust 2007-FXD1 (2)

  BIG     441        0.2     Home Equity Loan   
   

 

 

   

 

 

   

Total

    $ 6,748        3.8  
   

 

 

   

 

 

   

 

(1)

Internal credit ratings are provided solely to indicate the underlying credit quality of guaranteed obligations based on the view of Ambac Assurance, and for Ambac UK related transactions, based on the view of Ambac UK. Ambac UK rates their transactions using the same rating definitions as Ambac Assurance. In

 

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  cases where Ambac Assurance or Ambac UK has insured multiple tranches of an issue with varying internal ratings, or more than one obligation of an issuer with varying internal ratings, a weighted average rating is used. Ambac Assurance and Ambac UK credit ratings are subject to revision at any time and do not constitute investment advice. Ambac Assurance, or one of its affiliates, has guaranteed the obligations listed and may also provide other products or services to the issuers of these obligations for which Ambac may have received premiums or fees. “BIG” denotes credits deemed below investment grade.
(2) Ambac Assurance has allocated all or a portion of the policy for this transaction to the Segregated Account.
(3) Insurance policy issued by Ambac UK.

International Finance Insured Portfolio

Ambac’s portfolio of international finance insured exposures is $31,618 million, representing 18% of Ambac’s net par outstanding as of December 31, 2013 and a 17% reduction from outstandings at December 31, 2012. This reduction in exposure was the result of terminations of credit derivatives and asset-backed policies and normal exposure runoff. Ambac’s international finance insured exposures include a wide array of obligations in the international markets, including infrastructure financings, asset-securitizations, CDOs, utility obligations, and whole business securitizations (e.g. securitizations of substantially all of the operating assets of a corporation). In emerging markets, Ambac focused on future cash flow transactions from top tier issuers (structured transactions secured by U.S. Dollar and Euro cash flows generated from exports or payment remittances). See Note 7 to the Consolidated Financial Statements, located in Part II, Item 8 in this Form 10-K for exposures by bond type as of December 31, 2013.

When underwriting transactions in the international markets, Ambac considered the specific risks related to the particular country and region that could impact the credit of the issuer. These risks include the legal and political environment, capital markets dynamics, foreign exchange issues, and the degree of governmental support. Ambac continues to assess these risks through its ongoing risk management.

Ambac UK, which is regulated in the United Kingdom (“UK”), had been Ambac Assurance’s primary vehicle for directly issuing financial guarantee policies in the UK and the European Union (“EU”) with $25,564 million net par outstanding at December 31, 2013. Geographically, Ambac UK’s exposures are principally in the UK and continental Europe. In 2009, Ambac UK’s license to issue new business was curtailed by its regulator. The portfolio of insured exposures underwritten by Ambac UK is financially supported exclusively by the assets of Ambac UK and no capital support arrangements are in place with any other Ambac affiliate.

 

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The table below shows our ten largest international finance transactions as a percentage of total financial guarantee net par outstanding at December 31, 2013. Except where noted, all international finance transactions included in the table below are insured by Ambac UK:

 

($ in millions)

   Ambac
Rating (1)
     Net Par
Outstanding
     % of Total
Net Par
Outstanding
    Country-Bond Type  

Mitchells & Butlers Finance plc-UK Pub Securitisation

     A+       $ 2,022         1.1     UK-Asset Securitizations   

Channel Link Enterprises

     BBB-         1,313         0.7     UK-Infrastructure   

National Grid Electricity Transmission

     A-         1,272         0.7     UK-Utility   

Punch Taverns Finance plc-UK Pub Securitisation

     BIG         1,220         0.7     UK-Asset Securitizations   

Aspire Defense Finance plc

     BBB+         1,212         0.7     UK-Infrastructure   

Telereal Securitisation plc

     AA         1,126         0.6     UK-Asset Securitizations   

Capital Hospitals plc (2)

     BBB-         1,063         0.6     UK-Infrastructure   

Posillipo Finance II S.r.l.

     BBB         1,046         0.6     Italy-Sub-Sovereign   

Ostregion Investmentgesellschaft NR 1 SA (2)

     BIG         967         0.5     Austria-Infrastructure   

Anglian Water

     A-         888         0.5     UK-Utility   
     

 

 

    

 

 

   

Total

      $ 12,129         6.8  
     

 

 

    

 

 

   

 

(1) Internal credit ratings are provided solely to indicate the underlying credit quality of guaranteed obligations based on the view of Ambac Assurance, and for Ambac UK related transactions, based on the view of Ambac UK. Ambac UK rates their transactions using the same rating definitions as Ambac Assurance. In cases where Ambac Assurance or Ambac UK has insured multiple tranches of an issue with varying internal ratings, or more than one obligation of an issuer with varying internal ratings, a weighted average rating is used. Ambac Assurance and Ambac UK credit ratings are subject to revision at any time and do not constitute investment advice. Ambac Assurance, or one of its affiliates, has guaranteed the obligations listed and may also provide other products or services to the issuers of these obligations for which Ambac may have received premiums or fees. “BIG” denotes credits deemed below investment grade.
(2) A portion of this transaction is insured by an insurance policy issued by Ambac Assurance.

Ambac UK, on behalf of Ambac Assurance and Ambac UK, manages exposures to thirteen issuers based in EU member countries (not including the UK). Two exposures, with net par outstanding of $1,087 million, are classified as sub sovereign/municipal exposures that may be impacted should there be continued adverse financial developments in the related countries of Italy or France. Eight exposures, with net par outstanding of $3,962 million, are classified as infrastructure/operating asset backed deals that are concession based where the underlying assets independently generate cashflow without operational reliance on the sovereign. Of the remaining three deals with net par outstanding of $240 million, two are CLOs that consist of various paper issued by corporates throughout the Euro zone and one is a structured insurance transaction.

Additional Insured Portfolio Information

CDO and CLO

CDO and CLO transactions involve the securitization of a portfolio of corporate bonds, corporate loan obligations and/or asset-backed securities. These transactions are included in either the US structured finance market or the international finance market dependent upon the geographic characteristics of the risk. The

 

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majority of these exposures are executed through credit derivatives. Ambac’s outstanding CDO and CLO exposures are comprised of the following types as of December 31, 2013 and December 31, 2012:

 

     Successor Ambac     Predecessor Ambac  

Business Mix by Net Par

   December 31, 2013     December 31, 2012  
   Net Par      Percentage     Net Par      Percentage  
($ in billions)                           

High yield corporate

   $ 1,356         79   $ 6,426         70

Market value CDOs

     64         4        525         6   

CDO of ABS < 25% MBS

     —           —          1,742         19   

Other

     299         17        439         5   
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 1,719         100   $ 9,132         100
  

 

 

    

 

 

   

 

 

    

 

 

 

Average Life of Insured Portfolio

Ambac Assurance underwrote and priced financial guarantees based on the assumption that the guarantees would remain in force until the expected maturity of the underlying bonds. Ambac Assurance estimates that the average life of its guarantees on par in force at December 31, 2013 is approximately 12 years. The average life is determined by applying a weighted average calculation, using the remaining years to expected maturity of each guaranteed bond, and weighting them on the basis of the remaining net par guaranteed. Except for RMBS policies, no assumptions are made for future refundings or terminations of insured issues. RMBS policies incorporate assumptions on expected voluntary and involuntary prepayments over the remaining life of the insured obligation.

Issue Size

Ambac Assurance’s financial guarantee exposure in the U.S. public finance market reflects the historical participation across the whole range of deal sizes including those with an original par amount of less than $50 million. U.S. structured finance and international finance transactions generally involved larger transaction sizes. The following table sets forth the distribution of Ambac’s guaranteed portfolio as of December 31, 2013 with respect to the current size of each guaranteed issue:

 

Current Par Amount

   Number of
Issues
     % of Total
Number of Issues
    Net Par Amount
as of December 31, 2013
 
        Amount
Outstanding
     % of Total  
($ in millions)                           

Less than $10 million

     5,267         67   $ 15,634         9

$10-less than 50 million

     1,810         23        41,629         23   

$50-250 million

     638         8        65,919         37   

Greater than $250 million

     132         2        55,910         31   
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

     7,847         100   $ 179,092         100
  

 

 

    

 

 

   

 

 

    

 

 

 

 

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Geographic Area

The following table sets forth the geographic distribution of Ambac Assurance’s insured exposure as of December 31, 2013:

 

Geographic Area

   Net Par
Amount
Outstanding
     % of Total Net
Par Amount
Outstanding
 
($ in millions)              

Domestic:

     

California

   $ 25,657         14.3

New York

     11,577         6.5

Florida

     8,545         4.8

Texas

     7,431         4.1

New Jersey

     6,559         3.7

Illinois

     5,730         3.2

Massachusetts

     4,689         2.6

Pennsylvania

     3,906         2.2

Colorado

     3,741         2.1

Washington

     2,998         1.7

Mortgage and asset-backed (1)

     18,387         10.3

Other domestic (2)

     48,254         26.9
  

 

 

    

 

 

 

Total Domestic

     147,474         82.3
  

 

 

    

 

 

 

International:

     

United Kingdom

     21,282         11.9

Australia

     3,331         1.9

Italy

     2,412         1.3

Austria

     967         0.5

New Zealand

     526         0.3

Internationally diversified (3)

     1,918         1.1

Other international

     1,182         0.7
  

 

 

    

 

 

 

Total International

     31,618         17.7
  

 

 

    

 

 

 

Grand Total

   $ 179,092         100.0
  

 

 

    

 

 

 

 

(1) Mortgage and asset-backed obligations includes guarantees with multiple locations of risk within the United States and is primarily comprised of residential mortgage and other asset-backed securitizations.
(2) Other domestic includes exposures to Puerto Rico of $2,485 at December 31, 2013.
(3) Internationally diversified may include components of U.S. exposure.

 

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Exposure Currency

The table below shows the distribution by currency of Ambac Assurance’s insured exposure as of December 31, 2013:

 

Currency

   Net Par Amount
Outstanding in Base
Currency
     Net Par Amount
Outstanding in
U.S. Dollars
 
(in millions)              

U.S. Dollars

     150,070       $ 150,070   

British Pounds

     12,432         20,595   

Euros

     3,472         4,773   

Australian Dollars

     3,503         3,128   

New Zealand

     639         526   
     

 

 

 

Total

      $ 179,092   
     

 

 

 

Ratings Distribution

The following tables provide a rating distribution of guaranteed total net par outstanding based upon internal Ambac Assurance credit ratings at December 31, 2013 and December 31, 2012 and a distribution by bond type of Ambac Assurance’s below investment grade net par exposures at December 31, 2013 and December 31, 2012. Below investment grade is defined as those exposures with a credit rating below BBB-:

Percentage of Guaranteed Portfolio

 

     Successor Ambac     Predecessor Ambac  

Ambac Rating (1)

   December 31,
2013
    December 31,
2012
 

AAA

     <1     1

AA

     20        22   

A

     43        44   

BBB

     20        18   

Below investment grade

     17        15   
  

 

 

   

 

 

 

Total

     100     100
  

 

 

   

 

 

 

 

(1) Internal credit ratings are provided solely to indicate the underlying credit quality of guaranteed obligations based on the view of Ambac Assurance, and for Ambac UK related transactions, based on the view of Ambac UK. In cases where Ambac Assurance or Ambac UK has insured multiple tranches of an issue with varying internal ratings, or more than one obligation of an issuer with varying internal ratings, a weighted average rating is used. Ambac Assurance and Ambac UK credit ratings are subject to revision at any time and do not constitute investment advice.

 

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Summary of Below Investment Grade Exposure

 

     Successor Ambac     Predecessor Ambac  

Bond Type

   Net Par Outstanding
December 31,
2013
    Net Par Outstanding
December 31,
2012
 
($ in millions)             

Public Finance:

      

Tax-backed (1)

   $ 1,887      $ 741   

Housing (2)

     732        775   

Transportation

     519        533   

General obligation

     363        392   

Health care

     30        11   

Other

     1,291        1,436   
  

 

 

   

 

 

 

Total Public Finance

     4,822        3,888   
  

 

 

   

 

 

 

Structured Finance:

      

Residential mortgage-backed and home equity—first lien

     8,092        9,592   

Residential mortgage-backed and home equity—second lien

     6,440        7,533   

Student loans

     4,223        5,331   

Structured Insurance

     1,648        1,657   

Mortgage-backed and home equity—other

     346        403   

Other

     547        554   
  

 

 

   

 

 

 

Total Structured Finance

     21,296        25,070   
  

 

 

   

 

 

 

International Finance:

      

Airports

     —          1,504   

Other

     3,702        3,452   
  

 

 

   

 

 

 

Total International Finance

     3,702        4,956   
  

 

 

   

 

 

 

Total

   $ 29,820      $ 33,914   
  

 

 

   

 

 

 

 

(1) Includes $1,430 and $0 of Puerto Rico net par at December 31, 2013 and 2012, respectively.
(2) Includes $486 and $488 of military housing net par at December 31, 2013 and 2012, respectively.

The decrease in below investment grade exposures are primarily due to (i) reductions to residential mortgage-backed securities during the year as a result of both voluntary prepayments by issuers and claims presented to Ambac Assurance; (ii) maturity of a portion of an international airport exposure resulting in an overall improvement in the credit quality of the remaining exposures; and (iii) principal payments on student loans (including commutation payments by Ambac), partially offset by an increase in certain public finance tax-backed obligations.

 

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U.S. residential mortgage-backed securities exposure

Ambac has exposure to the U.S. mortgage market primarily through direct financial guarantees of RMBS, including transactions that contain risks to first and second liens. The following tables provide, by vintage and type current net par outstanding of Ambac’s U.S. RMBS book of business:

 

($ in millions)

   Successor Ambac – December 31, 2013
Total Net Par Outstanding
 

Year of Issue

   Second Lien     First-lien
Sub-prime
    First-lien
Mid-prime
    Other (1)  

1998-2001

   $ 42      $ 509      $ 3      $ 354   

2002

     23        445        45        12   

2003

     19        653        269        146   

2004

     833        365        488        23   

2005

     876        870        1,608        53   

2006

     2,305        588        827        87   

2007

     2,429        441        1,518        194   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total

   $ 6,527      $ 3,871      $ 4,758      $ 869   
  

 

 

   

 

 

   

 

 

   

 

 

 

% of Total RMBS Portfolio

     40.7     24.2     29.7     5.4

% of Related Par Outstanding rated below investment
grade
(2)

     98.7     91.9     94.8     43.0

 

($ in millions)

   Predecessor Ambac – December 31, 2012
Total Net Par Outstanding
 

Year of Issue

   Second Lien     First-lien
Sub-prime
    First-lien
Mid-prime
    Other (1)  

1998-2001

   $ 66      $ 573      $ 4      $ 432   

2002

     33        510        55        15   

2003

     25        762        341        165   

2004

     1,015        417        644        33   

2005

     1,031        981        1,942        59   

2006

     2,629        684        1,076        99   

2007

     2,868        472        1,958        228   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total

   $ 7,667      $ 4,399      $ 6,020      $ 1,031   
  

 

 

   

 

 

   

 

 

   

 

 

 

% of Total RMBS Portfolio

     40.1     23.0     31.5     5.4

% of Related Par Outstanding rated below investment
grade
(2)

     98.2     89.0     93.8     42.1

 

(1) Other primarily includes manufactured housing and lot loan exposures.
(2) Ambac’s below investment grade internal ratings reflect bonds which are of speculative grade credit quality with the adequacy of future margin levels for payment of interest and repayment of principal potentially adversely affected by major ongoing uncertainties or exposure to adverse conditions. Ambac Assurance’s below investment grade category includes transactions on which claims have been submitted.

Student Loans

Ambac Assurance’s student loan portfolio consists of credits collateralized by (i) federally guaranteed loans under the Federal Family Education Loan Program (“FFELP”) and (ii) private student loans. Whereas FFELP loans are guaranteed for a minimum of 97% of defaulted principal and interest, private loans have no government guarantee and, therefore, are subject to credit risk as with other types of unguaranteed credits. Due to the failure

 

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of the auction rate markets, the interest rates on some student loan securities have increased significantly to punitive levels pursuant to the transaction terms. Such increases, along with high levels of student loan defaults, have caused the collateralization ratio in these transactions to deteriorate on an accelerated basis due to negative excess spread and/or the use of principal receipts to pay current interest.

Student loan net par outstanding on Ambac insured obligations:

 

     Successor Ambac     Predecessor Ambac  
       December 31, 2013     December 31, 2012  

Issuer Type ($ in millions)

   Net Par      % of Net Par     Net Par      % of Net Par  

For-Profit Issuers

   $ 2,660         61   $ 2,869         53

Not-For-Profit Issuers

     1,697         39     2,542         47
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 4,357         100   $ 5,411         100
  

 

 

    

 

 

   

 

 

    

 

 

 

Collateral for the For-Profit Issuers consists of private loans which do not have any federal guarantee as to defaulted principal and interest. Collateral for the Not-For-Profit Issuers consists of both FFELP and private student loans. For the Not-For-Profit student loan portfolio, approximately 72% of the collateral backing student loan trusts consists of private loans while the remaining 28% consists of FFELP loans. Private loan defaults have been on the rise since the beginning of the financial crisis in 2007. Elevated unemployment rates, combined with high student loan debt levels will continue to put pressure on borrower’s ability to pay their loans.

The following table represents the student loan net par outstanding by underlying debt-type on Ambac insured obligations:

 

     Successor Ambac     Predecessor Ambac  
       December 31, 2013     December 31, 2012  

Debit Type ($ in millions)

   Net Par      % of Net Par     Net Par      % of Net Par  

Auction Rate

   $ 1,814         42   $ 2,713         50

Fixed Rate

     229         5     260         5

Floating Rate Notes

     2,218         51     2,299         42

Debt Service Reserve

     96         2     139        3
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 4,357         100   $ 5,411         100
  

 

 

    

 

 

   

 

 

    

 

 

 

All of the Auction Rate debt is paying interest at the maximum auction rate or the “penalty rate” pursuant to the transaction documents, reflecting both the failure of the auction rate market as well as the deteriorating credit ratings of the deals. These rates are putting negative pressure on excess spread and credit enhancement in transactions and this, in many cases, is causing an erosion of equity. This impact has been offset modestly by the current low interest rate environment.

The current capital markets and rating agency assumptions for new private loan transactions require a significant amount of equity which makes refinancing of Ambac insured transactions backed by private loans difficult for issuers. As such, we do not expect that our private loan exposure, particularly For-Profit Issuers, will be significantly reduced via refinancing in the near term. Transactions collateralized by FFELP loans are increasingly more likely to be refinanced if issuers raise enough equity through auction rate redemptions or otherwise to meet the overcollateralization required from the rating agencies.

 

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Auction Rate Securities (“ARS”) and Variable Rate Demand Obligations (“VRDO”):

Debt securities issued in the bond market include fixed and variable rate bonds. Included within the variable rate bond category are ARS and VRDO issued in the United States. The following table sets forth Ambac Assurance’s financial guarantee net par exposure outstanding, by bond type, relating to such variable rate securities at December 31, 2013 and December 31, 2012:

 

     Successor Ambac     Predecessor Ambac  
     December 31, 2013
Total
    December 31, 2012
Total
 
($ in millions)             

Investor-owned utilities

   $ 2,465      $ 3,249   

Student Loans

     1,814        2,713   

Healthcare

     1,040        1,369   

Lease and Tax-backed

     708        1,390   

Transportation

     354        1,922   

Utility

     305        306   

General Obligation

     110        322   

Other

     537        636   
  

 

 

   

 

 

 

Total

   $ 7,333      $ 11,907   
  

 

 

   

 

 

 

ARS are sold through a Dutch auction, which is a competitive bidding process used to determine rates on each auction date. VRDO are long-term bonds that bear a floating interest rate and that provide investors the option to tender or put securities back to the issuer or the liquidity provider at any time with appropriate notice. Additionally, there are certain mandatory events that require all bondholders to tender their VRDO to the issuer or liquidity provider. The interest rate resets daily or weekly, depending upon the security.

VRDO are typically supported by a liquidity facility in the form of a standby bond purchase agreement (“Standby Bond Purchase Agreement”), usually provided by a commercial bank (“Liquidity Provider”). If the remarketing agent is unable to remarket all tendered VRDO, the Liquidity Provider is required to purchase such VRDO at the purchase price, subject to limited conditions precedent, thus providing liquidity to investors. While held by the Liquidity Provider, VRDO bear interest at a rate determined under the Standby Bond Purchase Agreement, often based on the Prime Rate or LIBOR plus a spread (the “Bank Rate”). During such time, the remarketing agent remains obligated to continue to try to remarket the VRDO held by the Liquidity Provider. Many Standby Bond Purchase Agreements provide that, after the Liquidity Provider has held the VRDO for a specified time period, the issuer or other obligor is required to cause such VRDO to be redeemed prior to maturity, either: in periodic installments over a predetermined number of years, typically from three to five (the “Term-Out”); or with available funds as defined in the transaction documents; or in a single lump sum at the end of three to five years. Other Standby Bond Purchase Agreements do not contain a Term-Out. For VRDO insured by Ambac Assurance, Ambac Assurance typically endorsed its insurance policy to cover interest at the Bank Rate. For VRDO insured by Ambac Assurance that contain a Term-Out, Ambac often endorsed its insurance policy to cover the required redemptions in accordance with the Term-Out schedule (though not any acceleration of the VRDO maturity ahead of the Term-Out schedule).

Issuers have been working toward reducing their debt service costs for ARS and VRDO transactions. The most prevalent ways have been; (i) refunding or refinancing the obligations and issuing new bonds or other debt structures; (ii) entering into interest rate swaps to synthetically fix their interest rates; (iii) purchasing direct-pay letters of credit from other financial institutions; (iv) amending their liquidity facilities to address investor liquidity concerns; or (v) converting the bonds to fixed rate (to maturity or for a shorter period of time).

 

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For Ambac Assurance insured ARS and VRDO transactions that have been unable to refinance, the higher debt service costs have resulted in decreased debt service coverage ratios and/or the erosion of first loss and/or other credit enhancements that are subordinate to Ambac Assurance’s risk position (such as excess spread). Ambac continues to actively review the credit implications of this additional issuer stress and its impact to our internal credit ratings and loss reserves as necessary.

Tax Allocation Bonds

Ambac Assurance has $5,819 million net exposure to debt issued by California redevelopment agencies (“RDAs”) in its public finance portfolio, including $457 million that is below investment grade. Certain municipalities established RDAs to fund redevelopment projects. Debt issued by RDAs is principally secured by incremental property tax revenues above a designated assessed valuation (“AV”) level. The credit deterioration in our underperforming exposures arises from AV declines, and in some cases, from disputes arising among some or all of the RDA’s successor agency, and the municipality, county and State regarding entitlement to revenues and properties following the State’s dissolution of RDAs in December 2011. Additionally, although the RDA successor agencies continue to be entitled to the pledged revenues and assets and remain obligated to service RDA debt, we may be subject to liquidity claims due to timing mismatches between tax receipts and debt service payments. While we believe the above credit and liquidity risks will be contained, there can be no certainty these or other risks, and therefore our risk of loss, will not increase as the new law is enacted and its guidelines promulgated and AVs remain stressed.

 

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Reinsurance:

Ceded Reinsurance

Ambac Assurance has reinsurance in place pursuant to surplus share treaty and facultative reinsurance agreements. For exposures reinsured, Ambac Assurance withholds a ceding commission to defray its underwriting and operating expenses. The following table shows the distribution, by bond type, of Ambac Assurance’s ceded guaranteed portfolio at December 31, 2013:

 

Bond Type

   Ceded Par
Amount
Outstanding
     % of Gross
Par  Ceded
 
($ in millions)              

Public Finance:

     

Lease and tax-backed revenue.

   $ 4,708         10

General obligation

     3,552         11   

Utility revenue

     2,202         13   

Transportation revenue

     1,878         16   

Higher education

     1,187         13   

Housing revenue

     1,055         12   

Health care revenue

     452         10   

Other

     109         8   
  

 

 

    

 

 

 

Total Public Finance

     15,143         12   
  

 

 

    

 

 

 

Structured Finance:

     

Student loan

     991         19   

Investor-owned utilities

     640         10   

Asset-backed

     286         11   

Mortgage-backed and home equity

     205         1   

Other

     262         9   
  

 

 

    

 

 

 

Total Structured Finance

     2,384         7   
  

 

 

    

 

 

 

Total Domestic

     17,527         11   
  

 

 

    

 

 

 

International Finance:

     

Investor-owned and public utilities

     692         7   

Asset-backed

     162         2   

Transportation

     139         3   

CDOs

     40         5   

Sovereign/sub-sovereign

     38         <1   
  

 

 

    

 

 

 

Total International Finance

     1,071         3   
  

 

 

    

 

 

 

Grand Total

   $ 18,598         9
  

 

 

    

 

 

 

As a primary financial guarantor, Ambac Assurance is required to honor its obligations to its policyholders whether or not its reinsurers perform their obligations under the various reinsurance agreements. To minimize its exposure to significant losses from reinsurer insolvencies, Ambac Assurance is entitled to reeive collateral from its reinsurance counterparties in certain reinsurance contracts and has certain cancellation rights that can be exercised by Ambac Assurance in the event of rating agency downgrades of a reinsurer. Ambac Assurance held letters of credit and collateral amounting to approximately $153.1 million from its reinsurers at December 31, 2013. Refer to Risk Management — Reinsurance above for further discussion on the credit ratings of our reinsurance counterparties and unsecured reinsurance balances.

 

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Assumed Reinsurance:

At December 31, 2013, assumed par outstanding was $248.2 million. On March 24, 2010, all assumed reinsurance agreements with third parties were allocated to the Segregated Account, which will not allow for cancellations without the approval of the Rehabilitator.

Rating Agencies

Ambac Assurance’s financial strength ratings had been downgraded and subsequently withdrawn by Moody’s and S&P. Ambac Assurance requested such withdrawals upon a review of the value of such ratings relative to the cost.

Insurance Regulatory Matters

United States

Ambac Assurance and Everspan Financial Guarantee Corp. (“Everspan”) are domiciled in the State of Wisconsin and, as such, are subject to the insurance laws and regulations of the State of Wisconsin (the “Wisconsin Insurance Laws”) and are regulated by the OCI. In addition, Ambac Assurance and Everspan are subject to the insurance laws and regulations of the other jurisdictions in which they are licensed. Ambac Assurance is licensed in all other 49 states, the District of Columbia, the Commonwealth of Puerto Rico, the territory of Guam and the U.S. Virgin Islands and Everspan is licensed in all the same jurisdictions as Ambac Assurance other than Virginia, the District of Columbia and the Commonwealth of Puerto Rico. Under Wisconsin insurance law, the Segregated Account is a separate insurer for purposes of the Segregated Account Rehabilitation Proceedings. The Segregated Account is separately licensed in the State of Wisconsin but not elsewhere, and is under the control of, and is overseen by, the Rehabilitator.

Insurance laws and regulations applicable to financial guarantee insurers vary by jurisdiction. The laws and regulations generally require financial guarantors to maintain minimum standards of business conduct and solvency; to meet certain financial tests; and to file policy forms, premium rate schedules and certain reports with regulatory authorities, including information concerning capital structure, ownership and financial condition. Regulated insurance companies are also required to file quarterly and annual statutory financial statements with the National Association of Insurance Commissioners (“NAIC”), and in each jurisdiction in which they are licensed. The level of supervisory authority that may be exercised by non-domiciliary insurance regulators varies by jurisdiction. Generally, however, non-domiciliary regulators are authorized to suspend or revoke insurance licenses and to impose license restrictions in the event that laws or regulations are breached by a regulated insurance company or in the event that continued or unrestricted licensure of the regulated insurance company constitutes a “hazardous condition” in the opinion of the regulator. As a result of losses from its insured portfolio, Ambac Assurance is no longer able to write new business. In addition, Ambac Assurance’s authority to write new business in Alabama, Connecticut, Louisiana, Mississippi, North Carolina, North Dakota, Ohio, Tennessee, Utah and Virginia has been restricted by regulatory action or by agreement with the relevant insurance department.

As the principal, or domiciliary, regulator of Ambac Assurance and Everspan, OCI has primary regulatory authority, including with respect to the initiation and administration of rehabilitation or liquidation proceedings. Additionally, the accounts and operations of Ambac Assurance and Everspan are subject to periodic comprehensive examinations by the OCI. Wisconsin Insurance Laws require regulated insurance companies to maintain minimum standards of business conduct, maintain minimum surplus to policyholders, meet certain financial tests, and file certain reports, including information concerning their capital structure, ownership and financial condition. Ambac Assurance, Everspan and the Segregated Account are not subject to risk-based capital requirements, since they are financial guarantee insurers. Ambac Assurance and Everspan are in compliance with

 

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minimum surplus levels. Wisconsin Insurance Laws also require prior approval by OCI of certain transactions between Ambac Assurance or Everspan and their respective affiliates. As described in Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K, the Rehabilitator of the Segregated Account has imposed certain constraints upon Ambac Assurance through the covenants made for the benefit of the Segregated Account and has assumed the authority to control the management of the Segregated Account.

In addition, pursuant to the terms of the Settlement Agreement, dated as of June 7, 2010, by and among Ambac Assurance, Ambac Credit Products LLC (“ACP”), Ambac and counterparties to credit default swaps with ACP that were guaranteed by Ambac Assurance (the “Settlement Agreement”), Ambac Assurance must seek prior approval by OCI of certain corporate actions. The Settlement Agreement includes covenants which generally restrict the operations of Ambac Assurance and remain in force until the surplus notes that were issued to the counterparties by Ambac Assurance pursuant to the Settlement Agreement have been redeemed, repurchased or repaid in full. Certain of these restrictions may be waived with the approval of a majority of Unaffiliated Qualified Directors (described below) and/or the OCI. Pursuant to the Settlement Agreement, Ambac Assurance filed an amendment to its articles of incorporation which requires that at least one-third (and, in any event, not less than three members) of the board of directors of Ambac Assurance must be Unaffiliated Qualified Directors (as defined in the Settlement Agreement). If at any time Ambac Assurance does not have the requisite number of Unaffiliated Qualified Directors to authorize an action that is otherwise restricted by the Settlement Agreement, it will need to seek the approval of OCI to take such action.

United Kingdom

The PRA and FCA (and their predecessor regulator the Financial Services Authority (“FSA”)) have exercised significant oversight of Ambac UK since 2008, after Ambac, Ambac Assurance and Ambac UK began experiencing financial stress. In 2009, Ambac UK’s license to do new business was curtailed by the FSA and the insurance license was limited to undertaking only run-off related activity. As such, Ambac UK is authorized to run-off its insurance portfolio in the United Kingdom, and to do the same through a branch in Milan, Italy, and a number of other European Union (“EU”) countries. EU legislation has allowed Ambac UK to conduct business in EU states other than the United Kingdom through a “passporting” arrangement, which eliminates the necessity of additional licensing or authorization in those other EU jurisdictions.

Ambac UK remains subject to regulation by the PRA and FCA in the conduct of its business. The PRA and FCA are the dual statutory regulators responsible for regulating the financial services industry in the United Kingdom, with the purpose of maintaining confidence in the U.K. financial system, providing public understanding of the system, securing the proper degree of protection for consumers and helping to reduce financial crime. In addition, the regulatory regime in the United Kingdom must comply with certain EU legislation binding on all EU member states.

The PRA and FCA requires that non-life insurance companies such as Ambac UK maintain a margin of solvency at all times in respect of the liabilities of the insurance company, the calculation of which depends on the type and amount of insurance business a company writes. These solvency requirements may be amended in order to implement the European Union’s proposed “Solvency II” directive on risk-based capital, but that is not expected to be implemented until 2016 at the earliest. The impact of such proposals on Ambac UK remains unclear.

Notwithstanding the foregoing, Ambac UK is deficient in terms of compliance with applicable regulatory capital requirements. The PRA and FCA are aware of the same, and dialogue between Ambac UK management and its regulators remains ongoing with respect to options for addressing the shortcoming, although such options remain few.

 

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Regulations over change in control

Under Wisconsin law applicable to insurance holding companies, any acquisition of control of Ambac, and any other direct or indirect control of Ambac Assurance and Everspan, requires the prior approval of the OCI. “Control” is defined as the direct or indirect power to direct or cause the direction of the management and policies of a person. Any purchaser of more than 10% of the outstanding voting stock of a corporation is presumed to have acquired control of that corporation and its subsidiaries unless the OCI, upon application, determines otherwise. For purposes of this test, Ambac believes that a holder of common stock having the right to cast more than 10% of the votes which may be cast by the holders of all shares of common stock of Ambac would be deemed to have control of Ambac Assurance and Everspan within the meaning of the Wisconsin Insurance Laws. The United Kingdom has similar requirements applicable in respect of Ambac, as the ultimate holding company of Ambac UK.

Dividend Restrictions, Including Contractual Restrictions

Due to losses experienced by Ambac Assurance, Ambac Assurance has been unable to pay common dividends to Ambac since 2008 and will be unable to pay common dividends in 2014 without the prior consent of the OCI, which is unlikely. See Note 9 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for further information on dividends.

Ambac Assurance’s ability to pay dividends is further restricted by the Settlement Agreement (as described below) and by certain covenants made for the benefit of the Segregated Account. See Note 1 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for further information.

As a result of these restrictions, Ambac Assurance is not expected to pay dividends to Ambac for the foreseeable future.

Subject to the foregoing, pursuant to the Wisconsin Insurance Laws, Ambac Assurance and Everspan may declare dividends, subject to restrictions in their respective articles of incorporation, provided that, after giving effect to the distribution, such dividends would not violate certain statutory equity, solvency, income and asset tests. Board action authorizing a shareholder distribution by Ambac Assurance or Everspan (other than stock dividends) must be reported to the OCI at least 30 days prior to payment. Additionally, no quarterly dividend may exceed the dividend paid in the corresponding quarter of the preceding year by more than 15% without notifying the OCI 30 days in advance of payment. Extraordinary dividends must be reported prior to payment and are subject to disapproval by the OCI. An extraordinary dividend is defined as a dividend or distribution, the fair market value of which, together with all dividends from the preceding 12 months, exceeds the lesser of: (a) 10% of policyholders’ surplus as of the preceding December 31 or (b) the greater of: (i) statutory net income for the calendar year preceding the date of the dividend or distribution, minus realized capital gains for that calendar year; or (ii) the aggregate of statutory net income for the three calendar years preceding the date of the dividend or distribution, minus realized capital gains for those calendar years and minus dividends paid or credited and distributions made within the first two of the preceding three calendar years. Additionally, in connection with the termination of certain reinsurance contracts, OCI requires adjustments to the dividend calculations for any surplus or net income gains recognized.

Ambac UK is not expected to pay any dividends to Ambac Assurance for the foreseeable future. UK law prohibits Ambac UK from declaring a dividend to its shareholders unless it has “profits available for distribution.” The determination of whether a company has profits available for distribution is based on its accumulated realized profits less its accumulated realized losses. While the UK insurance regulatory laws impose no statutory restrictions on a general insurer’s ability to declare a dividend, the PRA’s and FCA’s capital requirements in practice act as a restriction on the payment of dividends. Further, the FSA amended Ambac UK’s

 

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license in 2010 such that the PRA must specifically approve (“non-objection”) any transfer of value and/or assets from Ambac UK to Ambac Assurance or any other Ambac group company, other than in respect of certain disclosed contracts between the two parties (such as in respect of a management services agreement between Ambac Assurance and Ambac UK).

Pursuant to the Settlement Agreement Ambac Assurance may not make any “Restricted Payment” (which includes dividends from Ambac Assurance to Ambac) in excess of $5 million in the aggregate per annum, other than Restricted Payments from Ambac Assurance to Ambac in an amount up to $7.5 million per annum solely to pay operating expenses of Ambac. Concurrent with making any such Restricted Payment, a pro rata amount of the surplus notes issued by Ambac Assurance under the Settlement Agreement would also need to be redeemed at par.

Under the terms of Ambac Assurance’s Auction Market Preferred Shares (“AMPS”), dividends may not be paid on the common stock of Ambac Assurance unless all accrued and unpaid dividends on the AMPS for the then current dividend period have been paid, provided, that dividends on the common stock may be made at all times for the purpose of, and only in such amounts as are necessary for, enabling Ambac (i) to service its indebtedness for borrowed money as such payments become due or (ii) to pay its operating expenses. If dividends are paid on the common stock as provided in the prior sentence, dividends on the AMPS become cumulative until the date that all accumulated and unpaid dividends have been paid on the AMPS.

New York Financial Guarantee Insurance Law and Financial Guarantee Insurance Regulation in Other States

New York’s comprehensive financial guarantee insurance law defines the scope of permitted financial guarantee insurance and governs the conduct of business of all financial guarantors licensed to do business in New York, including Ambac Assurance and Everspan. The New York financial guarantee insurance law also establishes single risk and aggregate limits with respect to insured obligations insured by financial guarantee insurers. Such single risk limits are specific to the type of insured obligation (for example, municipal or asset-backed). Under the aggregate limits, policyholders’ surplus and contingency reserves must at least equal a percentage of aggregate net liability that is equal to the sum of various percentages of aggregate net liability for various categories of specified obligations. Wisconsin laws and regulations applicable to financial guarantors, as well as the laws of several other states, are less comprehensive than New York law and relate primarily to single and aggregate risk limits.

As a result of decreased statutory capital resulting from the significant losses experienced by Ambac Assurance, Ambac Assurance is not in compliance with applicable single and aggregate risk limits. Through run-off of the portfolio, Ambac Assurance will seek to reduce its exposure to no more than the permitted amounts, but may not be able to do so. Everspan is in compliance with all of such limits.

Financial Services Segment

Ambac’s Financial Services business segment is conducted through its financial services subsidiaries, which provide financial and investment products, including investment agreements, funding conduits and interest rate swaps, principally to the clients of its financial guarantee business. Ambac Assurance insured all of the obligations of its financial services subsidiaries. These businesses are in active runoff, which is being effectuated by means including transaction terminations, settlements, and scheduled amortization of contracts. The Financial Services business also maintains interest rate derivatives to mitigate exposure to floating rate insured obligations in the Financial Guarantee segment.

 

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The principal factors that may affect the Financial Services Segment results include: (1) availability of counterparties for hedging transactions; (2) investment returns; (3) the value of future contract terminations or settlements which may differ from carrying value of the those contracts; (4) collateral posting requirements; (5) the availability of liquidity from Ambac Assurance; (6) changes in the fair value of the derivatives portfolio resulting from interest rate fluctuations; (7) timing of investment agreement withdrawals; and (8) restrictions imposed upon Ambac Assurance by the contracts executed with the Segregated Account and the Settlement Agreement, and, to the extent that policies allocated to the Segregated Account are implicated, the authority of the Rehabilitator of the Segregated Account to control the management of the Segregated Account.

Investment Agreements

Ambac’s remaining investment agreements issued to structured finance and municipal issuers were issued through its wholly-owned subsidiary, Ambac Capital Funding. Investment agreements were customized for each investor to provide guaranteed interest and return of principal in accordance with their requirements. Each investment agreement was insured by Ambac Assurance through a financial guaranty insurance policy.

Liquidity risk exists in the business due to contract provisions which require collateral posting and allow for early termination of investment agreements. As of December 31, 2013, 96% of investment agreement principal and accrued interest outstanding was collateralized. Funding for early terminations was supported in part through loans between Ambac Capital Funding and Ambac Assurance. At December 31, 2013, Ambac Capital Funding was indebted to Ambac Assurance in the amount of $190.9 million.

See “Liquidity and Capital Resources” of the Management’s Discussion and Analysis of Financial Condition and Results of Operations” located in Part II, Item 7 and Note 15 of this Form 10-K to the Consolidated Financial Statements located in Part II, Item 8 for further information on investment agreements.

Derivative Products

The primary activities in the derivative products business are to manage the runoff of derivatives with financial guarantee clients and to facilitate the mitigation of interest rate exposure for the Financial Guarantee segment via swaps and exchange traded U.S. treasury futures. Derivative transactions are executed through Ambac Financial Services (“AFS”), a wholly-owned subsidiary of Ambac Assurance. The derivative products portfolio is positioned to benefit from rising rates as an economic hedge against interest rate exposure in the financial guarantee insurance portfolio. This hedge position may have a significant impact on the results of the Financial Services segment. Under the agreements governing the derivative positions, AFS generally must post collateral or margin in excess of the market value of the swaps and futures contracts. In addition, most of AFS’s counterparties currently possess the right to terminate their transactions with AFS and in the event of a full rehabilitation of Ambac Assurance, some of AFS’s swaps could automatically terminate. A sudden termination of AFS’s derivatives, whether voluntarily or automatically, could result in losses. AFS has borrowed cash and securities from Ambac Assurance, to help support its incremental collateral and margin posting requirements, termination payments and other cash needs. At December 31, 2013, AFS was indebted to Ambac Assurance in the amounts of $448.0 million in cash loans and $140.2 million in borrowed securities.

AFS manages a variety of risks inherent in its businesses, including credit, market, liquidity, operational and legal. These risks are identified, measured, and monitored through a variety of control mechanisms, which are in place at different levels throughout the organization. See “Quantitative and Qualitative Disclosures About Market Risk” located in Part II, Item 7A of this Form 10-K for further information.

 

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Funding Conduits

A subsidiary of Ambac has previously transferred financial assets to two special purpose entities. The business purpose of these entities was to provide certain financial guarantee clients with funding for their debt obligations. The activities of the special purpose entities are contractually limited to purchasing assets from Ambac, issuing medium-term notes (“MTNs”) to fund such purchases, executing derivative hedges and obtaining financial guarantee policies with respect to indebtedness incurred. As of December 31, 2013, Ambac Assurance had financial guarantee insurance policies issued for all assets, MTNs and derivative contracts owned and outstanding by the entities. Ambac does not consolidate these entities under the relevant accounting guidance for consolidation of variable interest entities. See Notes 2 and 4 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for further information.

INVESTMENTS AND INVESTMENT POLICY

As of December 31, 2013, the consolidated non-VIE investments of Ambac had an aggregate fair value of approximately $6.5 billion and an aggregate amortized cost of approximately $6.6 billion. Investments are managed internally by officers of Ambac, who are experienced investment managers, and by external investment managers. All investments are made in accordance with the general objectives and guidelines for investments reviewed or overseen by Ambac Assurance and Ambac UK’s respective Boards of Directors. These guidelines include liquidity, credit quality, diversification and duration objectives, and are periodically reviewed and revised as appropriate.

As of December 31, 2013, the Ambac Assurance and Everspan non-VIE investment portfolio had an aggregate fair value of approximately $5.4 billion and an aggregate amortized cost of approximately $5.4 billion. Ambac Assurance’s and Everspan’s investment objectives are to achieve the highest risk-adjusted after-tax yield on a diversified portfolio consistent with Ambac Assurance’s and Everspan’s risk tolerance while employing active asset/liability management practices to satisfy all operating and strategic liquidity needs. Ambac Assurance’s investment portfolio is subject to internal investment guidelines and is subject to limits on types and quality of investments imposed by applicable insurance laws and regulations. Ambac Assurance purchases Ambac Assurance insured securities given their relative risk/reward characteristics in order to mitigate the effect of potential future adverse development in the insured portfolio. Ambac Assurance financial guarantee policies related to most of these securities have been allocated to the Segregated Account. As described in Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K, Ambac Assurance’s investment policies are subject to certain covenants made for the benefit of the Segregated Account and, therefore, such policies may be subject to restrictions outside the control of management. Such covenants could adversely impact the performance of the investment portfolio.

As of December 31, 2013, the non-VIE Ambac UK investment portfolio had an aggregate fair value of approximately $0.5 billion and an aggregate amortized cost of approximately $0.5 billion. Ambac UK’s investment policy is designed with the primary objective of ensuring that Ambac UK is able to meet its financial obligations as they fall due, in particular with respect to policy holders and meeting their claims. Ambac UK’s investment portfolio is subject to internal investment guidelines and may be subject to limits on types and quality of investments imposed by the FSA as regulator of Ambac UK. The Board of Directors of Ambac UK approves any changes or exceptions to Ambac UK’s investment policy.

As of December 31, 2013, the non-VIE Financial Services investment portfolio had an aggregate fair value of approximately $0.4 billion and an aggregate amortized cost of approximately $0.4 billion. The primary investment objective is to invest in a diversified portfolio of high-grade securities that produce sufficient cash flow to satisfy all investment agreement liabilities while meeting the related collateral requirements. The investment portfolio is subject to internal investment guidelines. Such guidelines set forth minimum credit rating requirements and credit risk concentration limits.

 

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The following tables provide certain information concerning the investments of Ambac:

 

     Successor Ambac     Predecessor Ambac  
     Summary of Investments
as of December 31, 2013
    Summary of Investments
as of December 31, 2012
 

Investment Category

   Carrying
Value
     Weighted
Average
Yield (1)
    Carrying
Value
     Weighted
Average
Yield (1)
 
($ in thousands)                           

Long-term investments:

            

Taxable bonds

   $ 5,099,503         3.76   $ 4,409,491         7.32

Tax-exempt bonds

     912,036         3.95     1,258,683         4.76
  

 

 

        

 

 

    

Total long-term investments

     6,011,539         3.79     5,668,174         6.74

Short-term investments (2)

     271,119         0.10     661,658         0.10

Other

     241,069         —          100         —     
  

 

 

        

 

 

    

Total

   $ 6,523,727         3.63   $ 6,329,932         5.96
  

 

 

        

 

 

    

 

(1) Yields are stated on a pre-tax basis, based on average amortized cost.
(2) Includes taxable and tax-exempt investments.

 

     Successor Ambac     Predecessor Ambac  
     Investments by Security
Type as of December 31,
2013
    Investments by Security
Type as of December 31,
2012
 

Investment Category

   Carrying
Value (1)
     Weighted
Average
Yield (2)
    Carrying
Value (1)
     Weighted
Average
Yield (2)
 
($ in thousands)                           

Municipal obligations (3)

   $ 1,377,723         3.70   $ 1,814,730         5.11

Corporate securities

     1,489,369         2.28     1,112,174         3.88

Foreign obligations

     124,877         1.29     70,112         3.75

U.S. government obligations

     252,471         0.36     393,062         0.69

U.S. agency obligations

     32,154         0.31     82,535         4.34

Residential mortgage-backed securities

     1,558,625         7.04     1,455,582         15.79

Asset-backed securities

     1,176,320         2.79     739,979         4.54
  

 

 

        

 

 

    

Total long-term investments

     6,011,539         3.79     5,668,174         6.74

Short-term investments (3)

     271,119         0.10     661,658         0.10

Other

     241,069         —         100         —    
  

 

 

        

 

 

    

Total

   $ 6,523,727         3.63   $ 6,329,932         5.96
  

 

 

        

 

 

    

 

(1) Includes investments guaranteed by Ambac Assurance and Ambac UK. Refer to Note 11of the Consolidated Financial Statements located in Part II Item 8 of this Form 10-K for further discussion of Ambac insured securities held in the investment portfolio.
(2) Yields are stated on a pre-tax basis, based on average amortized cost.
(3) Includes taxable and tax-exempt investments.

Ambac has RMBS exposure in its investment portfolios. Please refer to the tables in Part II, Item 7 “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Balance Sheet” section below for a discussion of (i) the fair value of mortgage and asset-backed securities by classification, and (ii) the fair value of residential mortgage-backed securities by vintage and type.

 

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EMPLOYEES

As of December 31, 2013, Ambac had 212 employees, including 13 employees of Ambac UK. Ambac considers its employee relations to be satisfactory.

CORPORATE GOVERNANCE

The Sarbanes-Oxley Act of 2002 requires Chief Executive Officers and Chief Financial Officers to make certain certifications with respect to this report and to Ambac’s disclosure controls and procedures and internal control over financial reporting.

Ambac’s Disclosure Committee has the responsibility for ensuring that there is an adequate and effective process for establishing, maintaining and evaluating disclosure controls and procedures for Ambac in connection with its external disclosures.

Ambac has a Code of Business Conduct which promotes management’s control philosophy and expresses the values which govern employee behavior and help maintain Ambac’s commitment to the highest standards of conduct. This code can be found on Ambac’s website at www.ambac.com on the “Investor Relations” page under “Corporate Governance.” Ambac will disclose on its website any amendment to, or waiver from, a provision of its Code of Business Conduct that applies to its Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer. Ambac’s corporate governance guidelines and the charters for the committees of the Board of Directors are also available on our website under the “Corporate Governance” page.

 

Item 1A. Risk Factors

References in the risk factors to “Ambac” are to Ambac Financial Group, Inc. References to “we,” “our,” “us” and “Company” are to Ambac and its subsidiaries, as the context requires. Capitalized terms used but not defined in this section shall have the meanings ascribed thereto in Part I, Item 1 of this Form 10-K or in Note 1 to the Consolidated Financial Statements contained in Part II, Item 8 of this Form 10-K unless otherwise indicated.

The price per share of our common stock may be subject to a high degree of volatility, including significant price declines.

Our shares of common stock, which were issued pursuant to our Reorganization Plan, began trading on the NASDAQ Global Market on May 1, 2013. Although our common stock is listed on NASDAQ, there can be no assurance as to the liquidity of the trading market for our shares of common stock or the price at which such shares can be sold. The initial market price of our shares was determined by investors based upon the number of shares that were issued. The price of the shares may decline substantially in response to a number of events or circumstances, including but not limited to:

 

   

changes in investors’ or analysts’ valuation measures for our stock;

 

   

market trends unrelated to our stock;

 

   

market and industry perception of our success, or lack thereof, in pursuing our business strategy; and

 

   

results and actions of other participants in our industry.

In addition, the price of our shares will be affected by the additional risks described below, including risks associated with Ambac Assurance’s ability to deliver value to Ambac.

Ambac may not be able to realize value from Ambac Assurance.

Because Ambac is a holding company, the value of our stock is dependent upon the residual value of our main operating subsidiary, Ambac Assurance, the receipt of payments to be made by Ambac Assurance pursuant

 

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to the Amended TSA and the Cost Allocation Agreement, the receipt of payments on the Junior Surplus Note issued to Ambac by the Segregated Account, and the receipt of dividends from Ambac Assurance. There can be no assurance that we will be able to realize residual value in Ambac Assurance, which is in run-off. In addition, the Segregated Account of Ambac Assurance Corporation is subject to rehabilitation proceedings and under the control of the Rehabilitator, as further described below. It is unclear whether Ambac Assurance and the Segregated Account will be able to satisfy all of their respective obligations to policyholders, holders of their respective surplus notes and holders of Ambac Assurance’s preferred stock, even if Ambac Assurance and the Segregated Account are successful in achieving recoveries and mitigating losses. Our ability to achieve recoveries and mitigate losses is subject to significant risks and uncertainties, including perceptions of the value of Ambac’s guarantees and securities.

Due to the above considerations, as well as applicable legal and contractual restrictions described elsewhere herein, it is highly unlikely that Ambac Assurance will be able to pay Ambac any dividends for the foreseeable future. Furthermore, the payments to be made to Ambac under the Amended TSA and the Cost Allocation Agreement are subject to contingencies that are difficult to predict, making the amount and timing, if any, of such payments uncertain. Payments to be made under the Amended TSA, in particular, depend on the generation of taxable income by Ambac Assurance and will be negatively affected by the amount of net operating loss carry-forwards (“NOLs”) that can be utilized by Ambac Assurance prior to the utilization of NOLs that require payment to Ambac. Ambac Assurance’s ability to generate taxable income is uncertain. Moreover, losses incurred by Ambac Assurance since the Amended TSA was executed have increased the amount of NOLs that can be utilized by Ambac Assurance without payment to Ambac. Due to these factors, there can be no assurance as to the amounts, if any, that Ambac will receive from Ambac Assurance under the Amended TSA.

It is also uncertain whether and to what extent Ambac will realize value from the Junior Surplus Note. No payment of interest on or principal of a Segregated Account Junior Surplus Note may be made until all existing and future indebtedness of the Segregated Account, including Segregated Account Surplus Notes, policy claims and claims having statutory priority have been paid in full. All payments of principal and interest on Segregated Account Junior Surplus Notes are subject to the prior approval of the OCI. If the OCI does not approve the payment of interest on the Segregated Account Junior Surplus Notes, such interest will accrue and compound annually until paid.

The value of our common stock may also depend upon the ability of Ambac to generate earnings apart from Ambac Assurance. As noted below, we are exploring new business opportunities, but there are no assurances regarding our ability to enter new businesses or the prospects of any such new businesses.

We are exploring new business opportunities which may not be not be consummated, or if consummated, may not create value and may negatively impact our financial results.

We are exploring new business opportunities for the Company, which may involve the acquisition of assets or existing businesses or the development of businesses through new or existing subsidiaries. It is not possible at this time to predict the future prospects or other characteristics of any such new business. Our efforts to pursue new business opportunities may be unsuccessful or require significant financial or other resources, which could have a negative impact on our financial condition. No assurance can be given that we will be able to complete the acquisition or development of any business or, if acquired or developed, generate any earnings or be able to successfully integrate such business into our current operating structure.

Moreover, Ambac’s ability to enter new businesses, including new businesses apart from Ambac Assurance, is also subject to significant doubt, given the condition and circumstances of Ambac Assurance, the difficulty of leveraging or monetizing its other assets, and the uncertainty of its ability to raise capital. Due to these factors, as well as those relating to Ambac Assurance as described above, the value of our securities is highly speculative.

 

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Our actual financial results and financial condition may vary significantly from the projections and other financial information previously provided to the Bankruptcy Court and may be substantially lower from those reflected in the projections; investors should not rely on such information in making investment decisions.

In connection with the Reorganization Plan, in September 2011 we filed with the Bankruptcy Court a disclosure statement containing financial projections and other financial information, including estimates regarding our reorganization value. The projections and other financial information provided were based on information available to us at that time and we have not updated, and do not intend to update, such information. Projections are inherently subject to uncertainties and risks and such projections and other financial information reflect numerous assumptions as of the date of the disclosure statement. Our actual financial condition may vary significantly from those contemplated by the projections and other financial information provided to the Bankruptcy Court. Our actual results may be substantially lower than what was projected or implied in the disclosure statement. The projections and other financial information provided to the Bankruptcy Court are neither included in this report nor incorporated by reference. Accordingly, investors should not rely on such projections or information in making investment decisions.

The occurrence of certain events could result in the initiation of rehabilitation proceedings against Ambac Assurance, with resulting adverse consequences to holders of Ambac securities.

Challenges to the Segregated Account Rehabilitation Proceedings are ongoing. If such challenges are ultimately successful, Ambac Assurance and/or the Segregated Account may be exposed to the risk of greater losses. Furthermore, OCI may not receive a favorable ruling from the IRS regarding its proposed modifications to the Segregated Account Rehabilitation Plan, as discussed elsewhere herein. In response to these or other events, such as increased loss development in the General Account of Ambac Assurance or significant losses resulting from litigation against Ambac Assurance, OCI may determine that it is in the best interests of policyholders to initiate rehabilitation proceedings with respect to Ambac Assurance, either preemptively or in response to any such event.

If, as a result of the occurrence of any such event(s), OCI decides to initiate rehabilitation proceedings with respect to Ambac Assurance, adverse consequences may result, including, without limitation, the assertion of damages by counterparties (including mark-to-market claims with respect to insured transactions executed in ISDA format) and the acceleration of losses based on early termination triggers and the loss of control rights in insured transactions, thereby reducing the residual value of Ambac Assurance. Additionally, the Rehabilitator would assume control of all of Ambac Assurance’s assets and management of Ambac Assurance. In exercising control, the Rehabilitator will act for the benefit of policyholders, and will not take into account the interests of securityholders of Ambac. Such actions may result in material adverse consequences for Ambac’s securityholders.

Actions of the Rehabilitator could adversely affect Ambac, including impacting our ability to realize our remediation recoveries.

As a consequence of the Segregated Account Rehabilitation Proceedings, the Rehabilitator retains operational control and decision-making authority with respect to all matters related to the Segregated Account, including surveillance, remediation, loss mitigation and efforts to recover losses in the Segregated Account, including recovery efforts in respect of breaches of representations and warranties by sponsors of Ambac-insured RMBS. Similarly, by virtue of the contracts executed between Ambac Assurance and the Segregated Account in connection with the establishment, and subsequent rehabilitation, of the Segregated Account, the Rehabilitator retains the discretion to oversee and approve certain actions taken by Ambac Assurance in respect of assets and liabilities that remain in Ambac Assurance. As a result, certain efforts to remediate losses, and certain other actions taken by Ambac Assurance, are subject to the approval of the Rehabilitator . In exercising such authority, the Rehabilitator will act for the benefit of policyholders, and will not take into account the interests of

 

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securityholders of Ambac. Decisions made by the Rehabilitator for the benefit of policyholders may result in material adverse consequences for Ambac’s securityholders. In addition, we are not able to predict the impact such oversight will have on the remediation of losses, and, in particular, on our efforts to recover losses attributable to breaches of representations and warranties by sponsors of Ambac-insured RMBS and our ability to commute outstanding policies and repurchase Surplus Notes , and how vigorously the Rehabilitator will pursue such remediation.

In addition, the Rehabilitator may propose amendments to the Segregated Account Rehabilitation Plan that could have a significant impact on our financial condition or results of operations as such amendments could have the effect of minimizing NOL usage payments to Ambac pursuant to the Amended TSA.

Our inability to realize the expected recoveries included in our financial statements could adversely impact our liquidity and financial condition.

As of December 31, 2013, we have estimated representation and warranty subrogation recoveries of $2,183.7 million (net of reinsurance), which is included in our financial statements. These recoveries are based principally on contractual claims arising from RMBS transactions that we have insured, and represent our estimate of the amounts we will ultimately recover. However, our ability to recover these amounts is subject to significant uncertainty, including risks inherent in litigation, collectability of such amounts from counterparties and/or their respective parents and affiliates, timing of receipt of any such recoveries, regulatory intervention which could impede our ability to take the actions required to realize such recoveries, and uncertainty inherent in the assumptions used in estimating such recoveries. The amount of these subrogation recoveries is significant and if we were unable to recover any amounts our stockholders’ equity as of December 31, 2013 would decrease from $978.4 million to a deficit of $1,205.3 million.

We expect to recover material amounts of claims payments through remediation measures other than the litigation described above as well as through cash flows in the securitization structures of transactions that we insure. Realization of such expected recoveries is subject to various risks and uncertainties, including the rights and defenses of other parties with interests that conflict with our interests, the performance of the collateral and assets backing the obligations that we insure, the performance of servicers involved in securitizations in which we participate as insurer, and the effect on our rights of the Segregated Account Rehabilitation Plan and orders of the Rehabilitation Court. Additionally, the Segregated Account Rehabilitation Proceedings may result in the loss of future recoveries in insured transactions. Adverse developments with respect to such variables may cause our recoveries to fall below expectations.

Intercompany disputes or disputes with OCI may arise, which may have material adverse effects on the Company.

The Segregated Account, Ambac Assurance, Ambac and other affiliates have entered into agreements that govern certain activities of such entities. OCI has certain enforcement rights with respect to such agreements and, as regulator of Ambac Assurance and as Rehabilitator of the Segregated Account, has further authority over the activities of Ambac Assurance and the Segregated Account. Disputes may arise over the interpretation of such agreements, the exercise or purported exercise of rights thereunder, or the performance of or failure or purported failure to perform obligations thereunder. Disputes may also arise over certain actions taken or proposed to be taken by OCI in reliance on its contractual or legal rights or in reaction to actions taken or to be taken by the Company. In taking such actions or reacting to actions or decisions of the Company, the Rehabilitator will act for the benefit of policyholders, and will not take into account the interests of securityholders of Ambac. Any such dispute could have material adverse effects on the Company, whether through litigation, failure to execute transactions sought by management, interference with corporate strategies, objectives or prerogatives, inefficient decision-making or execution, forced realignment of resources, increased costs, distractions to management,

 

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strained working relationships or otherwise. Such effects would also increase the risk that OCI would seek to initiate rehabilitation proceedings against Ambac Assurance.

The Rehabilitator is considering amendments to the Segregated Account Rehabilitation Plan that could have adverse consequences to holders of Ambac securities and to holders of securities insured by Ambac Assurance, and could have a material impact on our accounting, financial condition and results of operations.

The issuance of Surplus Notes by the Segregated Account as contemplated by the current Segregated Account Rehabilitation Plan could subject Ambac Assurance to the risk of deconsolidation from Ambac for tax purposes, which may also result in a Section 382 limitation with respect to Ambac Assurance’s NOLs or an attribution of such NOLs to Ambac, or could subject Ambac Assurance to the risk of recognizing significant cancellation of indebtedness income. As a result, and subject to desired tax treatment, the Rehabilitator is expected to seek to implement amendments to the Segregated Account Rehabilitation Plan that would eliminate the issuance of surplus notes by the Segregated Account with respect to the unpaid portion of permitted policy claims. Such amendments would instead provide for the unpaid balance of permitted policy claims to be recorded by the Segregated Account as outstanding policy obligations which would accrue interest from the first date on which a portion of such permitted policy claim is or was paid until such outstanding policy obligations are paid (any such outstanding policy obligation, including accrued interest thereon, as such obligation may be adjusted from time to time in accordance with the Segregated Account Rehabilitation Plan, guidelines or rules issued by the Rehabilitator and/or orders of the Rehabilitation Court, a “Deferred Amount”). The amendments would likely provide that interest on the unpaid portion of permitted policy claims be accrued generally at an effective rate of 5.1%, compounded annually. Based on an assumed 5.1% interest rate on Deferred Amounts, the Segregated Account would be responsible for accrued interest of approximately $225.1 million through December 31, 2013. This accrued interest amount is not currently reflected in the Company’s financial results. In the case of certain insured bonds, the outstanding principal balance of which is not reduced by the unpaid portion of permitted policy claims relating to principal (such bonds, “Undercollateralized Bonds”), even though a Deferred Amount is also created, the interest accruing on the Deferred Amount may be reduced by the amount of interest payable on the Undercollateralized Bonds. Absent an adjustment by the Rehabilitator, bondholders would continue to earn interest on both the full principal balance of such Undercollateralized Bonds and the Deferred Amount.

The timing and likelihood of such amendments to the Segregated Account Rehabilitation Plan are presently unclear.

Notwithstanding that such amendments would be designed to preserve tax attributes for the ultimate benefit of policyholders, such amendments could adversely affect the interests of Ambac security holders and holders of securities insured by Ambac Assurance, including, without limitation, by the absence of tradable surplus notes. Furthermore, if surplus notes were eliminated from the Segregated Account Rehabilitation Plan in favor of the establishment of Deferred Amounts, then Ambac Assurance would, in certain transactions, suffer a reduction in reimbursements that would have been payable to it had such claims been (or been deemed to be) fully satisfied by the issuance of surplus notes, although such reduction in reimbursements could be mitigated by the making of Supplemental Payments discussed elsewhere herein. Also, if and to the extent the Rehabilitator does not make adjustments with respect to the payment of interest on Deferred Amounts relating to Undercollateralized Bonds or such adjustments do not completely offset the amount of incremental interest payable on the related Undercollateralized Bonds, then Ambac Assurance would be exposed to incremental interest liability on such Undercollateralized Bonds. Pending the outcome of the ruling requests to the IRS, as more fully described elsewhere herein, the establishment of interest bearing Deferred Amounts instead of the issuance of surplus notes with respect to the unpaid portion of permitted policy claims is also likely to reduce NOL usage payments by Ambac Assurance to Ambac under the Amended TSA. As a result of such factors, the establishment of Deferred Amounts instead of the issuance of surplus notes with respect to the unpaid portion of permitted policy claims could result in a material change in our financial condition or results of operations.

 

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Some issuers of public finance obligations we insure are experiencing fiscal stress that could result in increased losses on those obligations or increased liquidity claims, including losses or claims resulting from payment defaults, Chapter 9 bankruptcy proceedings or loss of market access.

We have historically experienced low levels of defaults in our public finance insured portfolio, including during the financial crisis that began in mid-2007. However, some issuers of public finance obligations we insure have reported budget shortfalls that will require them to significantly raise taxes and/or cut spending in order to satisfy their obligations. Government entities may also take other actions that may impact their own creditworthiness or the creditworthiness of related issuers. Some issuers of obligations we insure have either defaulted or filed for bankruptcy, raising concerns about their ultimate ability to service the debt we insure or recover claims paid in the future. If the issuers of the obligations in our public finance portfolio are unable to raise taxes, cut spending, or receive federal assistance, or if such issuers default or file for bankruptcy under Chapter 9, we may experience liquidity claims and/or ultimate losses on those obligations, which could adversely affect our business, financial condition and results of operations.

We insure obligations of several issuers that have filed for bankruptcy protection under Chapter 9. The consequences of such proceedings for creditors remain uncertain. For example, the treatment of General Obligation debt in relation to other obligations is not settled. If issuers succeed in materially adjusting their obligations to bondholders and financial guarantors, other issuers may be encouraged to default or file for Chapter 9 protection and seek similar adjustments to their debt. These events could materially increase losses in Ambac’s insured portfolio of municipal credits.

Loss of market access is a risk embedded in our municipal exposures. From time to time the municipal bond market evidences heightened investor concerns overall or for select sectors or issuers, as has recently been the case with Puerto Rico. Such adverse market conditions may trigger a loss of market liquidity for affected issuers, which in turn may significantly raise their cost of alternative financing or cause a liquidity crisis and potential for default on debt service payments we guarantee.

As a result of the Segregated Account Rehabilitation Proceedings and resulting modifications to Ambac’s payment obligations, various adverse events in the insured portfolio may be triggered. If injunctions issued by the Rehabilitation Court enjoining such adverse effects are ineffective, substantial adverse events may occur.

The Rehabilitation Court issued an injunction effective until further order of the court enjoining certain actions by Segregated Account policyholders and other counterparties, including the assertion of damages or acceleration of losses (including mark-to-market claims with respect to transactions executed in ISDA format) based on early termination triggers and the loss of control rights in insured transactions. If the injunction does not successfully preclude policyholders or counterparties from asserting damages, accelerating payments or ignoring or assuming Ambac’s control rights, losses in the Segregated Account would likely increase substantially.

Certain Surplus Notes issued by, or other obligations of, either Ambac Assurance or the Segregated Account may be characterized as equity of Ambac Assurance and as a result, Ambac Assurance may no longer be a member of the U.S. federal income tax consolidated group of which Ambac is the common parent.

It is possible that certain Surplus Notes issued by, or other obligations of, either Ambac Assurance or the Segregated Account may be characterized as equity of Ambac Assurance for U.S. federal income tax purposes. If such Surplus Notes or other obligations are characterized as equity of Ambac Assurance and it is determined that such “equity” represented more than twenty (20) percent of the total value of the stock of Ambac Assurance, Ambac Assurance may no longer be characterized as an includable corporation that is affiliated with Ambac. As a result, Ambac Assurance may no longer be characterized as a member of the U.S. federal income tax consolidated group of which Ambac is the common parent (the “Ambac Consolidated Group”) and Ambac Assurance would be required to file a separate consolidated tax return as the common parent of a new U.S.

 

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Item 1A. Risk Factors.

 

federal income tax consolidated group including Ambac Assurance as the new common parent and Ambac Assurance’s affiliated subsidiaries (the “Ambac Assurance Consolidated Tax Group”).

To the extent Ambac Assurance is no longer a member of the Ambac Consolidated Group, Ambac Assurance’s NOLs (and certain other available tax attributes of Ambac Assurance and the other members of the Ambac Assurance Consolidated Tax Group) may no longer be available for use by the Ambac Assurance Consolidated Tax Group or any of the remaining members of the Ambac Assurance Consolidated Tax Group to reduce the U.S. federal income tax liabilities of the Ambac Assurance Consolidated Tax Group. Ambac, Ambac Assurance and their affiliates entered into a tax sharing agreement that would require Ambac to make certain tax elections that could mitigate the loss of NOLs and other tax attributes resulting from a deconsolidation of Ambac Assurance from the Ambac Consolidated Group. However, in the event of a deconsolidation, certain other benefits resulting from U.S. federal income tax consolidation may no longer be available to the Ambac Consolidated Group including certain favorable rules relating to transactions occurring between members of the Ambac Consolidated Group and members of the Ambac Assurance Consolidated Tax Group.

If Surplus Notes are characterized as equity of Ambac Assurance, the Ambac Assurance NOLs (and certain other tax attributes or tax benefits of the Ambac Consolidated Group) may be subject to limitation under Section 382 of the Tax Code.

It is possible that certain Surplus Notes may be characterized as equity of Ambac Assurance for U.S. federal income tax purposes. Such characterization could result in an “ownership change” of Ambac Assurance for purposes of Section 382 of the Tax Code. If such an ownership change were to occur, the value and amount of the Ambac Assurance NOLs would be substantially impaired, increasing the U.S. federal income tax liability of Ambac Assurance and materially reducing cash available to dividend to Ambac, as well as reducing the value of Ambac Assurance’s stock owned by Ambac.

Deductions with respect to interest accruing on certain Surplus Notes may be eliminated or deferred until payment.

To the extent certain Surplus Notes are characterized as equity for U.S. federal income tax purposes, accrued interest will not be deductible by Ambac Assurance. In addition, even if such Surplus Notes are characterized as debt for U.S. federal income tax purposes, the deduction of interest accruing on such Surplus Notes may be deferred until paid or eliminated in part depending upon (i) the terms of any deferral and payment provisions provided in such Surplus Notes, (ii) whether such Surplus Notes have “significant original issue discount,” and (iii) the yield to maturity of Surplus Notes. To the extent deductions with respect to interest is eliminated or deferred, the U.S. federal income tax of the members of the Ambac Consolidated Group or the members of the Ambac Assurance Consolidated Tax Group (as defined below) as the case maybe, could be increased reducing the amount of cash available to pay its obligations.

We are subject to credit risk and other risks related to RMBS and securities backed by student loans.

We have insured RMBS transactions (including transactions collateralized by second lien mortgage products and Alt-A or mid-prime loans), as well as securities backed by student loans, and are thus exposed to credit risk associated with those asset classes. Performance of these transactions, as well as others, can be adversely affected by general economic conditions, including recession, rising unemployment rates, underemployment, home prices that decline or do not increase in the patterns assumed in our models, increasing foreclosure rates and unavailability of consumer credit; mortgage product attributes, such as interest rate adjustments and balloon payment obligations; borrower and/or originator fraud; mortgage and student loan servicer activities, including underperformance and financial difficulty.

While further deterioration in the performance of consumer assets, including mortgage-related assets and student loans, may occur, the extent and duration of any future deterioration of the credit markets is unknown, as

 

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is the impact, if any, on potential claim payments and ultimate losses of the securities within Ambac Assurance’s portfolio. In addition, there can be no assurance that any of the governmental or private sector initiatives designed to address such credit deterioration in the markets will be successful or inure to the benefit of the transactions insured by Ambac. Servicer settlements with governmental authorities regarding foreclosure irregularities are generally designed to protect homeowners and may increase losses on securities insured by Ambac.

In addition, there can be no assurance that we would be successful, or that we would not be delayed, in enforcing the subordination provisions, credit enhancements or other contractual provisions of the RMBS that Ambac Assurance insures in the event of litigation or the bankruptcy of other transaction parties.

The change in composition of the securities in our investment portfolio exposes us to greater risk.

Ambac Assurance maintains a portion of its investment portfolio in lower-rated securities in order to increase the risk-adjusted return on its portfolio. Investments in lower-rated securities and “alternative assets” could expose Ambac to increased losses and decreased liquidity in the investment portfolio.

Loss reserves may not be adequate to cover potential losses; changes in loss reserves may result in further volatility of net income and earnings.

Loss reserves are established when management has observed credit deterioration, in most cases, when the underlying credit is considered below investment grade. Loss reserves established with respect to our non-derivative financial guarantee insurance policies are based upon estimates and judgments by management, including estimates and judgments with respect to the probability of default, the severity of loss upon default, management’s ability to execute commutation transactions and estimated remediation recoveries for, among other things, breaches by RMBS issuers of representations and warranties. Furthermore, the objective of establishing loss reserve estimates is not to reflect the worst possible outcome. As a result of the inherent uncertainties in the estimates and judgments made to determine loss reserves, there can be no assurance that either the actual losses in our financial guarantee insurance portfolio will not exceed such reserves or that our reserves will not increase or decrease materially over time as circumstances, our assumptions, or our models change.

As described elsewhere herein, any changes to the Segregated Account Rehabilitation Plan in respect of the treatment of the portion of claims that is not paid in cash on an as-presented basis could cause Ambac Assurance to lose its entitlement to certain reimbursements or to incur additional interest payment obligations, which could result in a material change in our loss reserves.

Additionally, inherent in our estimates of loss severities and remediation recoveries is the assumption that we will retain control rights in respect of our insured portfolio. However, according to the terms of relevant transaction documents, we are subject to the loss of control rights in many insured transactions in the event that we are the subject of delinquency proceedings and/or other regulatory actions which could result from our deteriorated financial position. In the event that we lose control rights, our ability to mitigate loss severities and realize remediation recoveries will be compromised, and actual ultimate losses in our insured portfolio could exceed our loss reserves. The Rehabilitation Court issued an injunction effective until further order of the court enjoining certain actions by holders of policies in the Segregated Account and other counterparties, including actions resulting in the loss of control rights. If this injunction does not successfully preclude such actions, Ambac Assurance could lose its control rights with respect to policies in the Segregated Account.

We also rely on internally and externally developed complex financial models, including licensed models related to RMBS, to project performance of our insured obligations. Differences in the models that we employ, and/or flaws in these financial models and/or faulty assumptions inherent in these financial models and those

 

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Item 1A. Risk Factors.

 

determined by management, could lead to increased losses and loss reserves. Uncertainty with respect to the ultimate performance of certain of our insured exposures may result in substantial changes in loss reserves and/or actual losses. Moreover, modeled estimates of transaction performance depend in part on our interpretations of contracts and other bases of our legal rights. Such interpretations may prove to be incorrect or different interpretations may be employed by bond trustees and other transaction participants, which could lead to increased losses and loss reserves.

Our credit risk management policies and practices may not adequately identify significant risks.

As described in Part I, Item 1, “Business—Risk Management” of this Form 10-K, we have established risk management policies and practices which seek to mitigate our exposure to credit risk in our insured portfolio. Ongoing surveillance of credit risks in our insured portfolio is an important component of our risk management. These policies and practices in the past have not insulated us from risks that were unforeseen and which had unanticipated loss severity, and such policies and practices may not do so in the future. There can be no assurance that these policies and practices will be adequate to avoid future losses. If we are not able to identify significant risks, we may not be able to and/or timely remediate such risks, thereby increasing the amount of losses to which we are exposed. An inability to identify significant risks could also result in the failure to establish loss reserves that are sufficient in relation to such risks.

Changes in prevailing interest rate levels could adversely impact our business results and prospects.

Increases in prevailing interest rate levels can adversely affect the value of our investment portfolio and, therefore, our financial strength. In the event that investments must be sold in order to pay claims or to meet Financial Services liquidity needs due to contract terminations or collateral posting requirements, such investments would likely be sold at discounted prices. Additionally, increasing interest rates would have an adverse impact on our insured portfolio. For example, increasing interest rates could result in higher claim payments in respect of defaulted obligations that bear interest at floating rates of interest. Higher interest rates can also lead to increased credit stress on consumer asset-backed transactions in our insured portfolio (as the securitized assets supporting a portion of these exposures are floating rate consumer obligations); slower prepayment speeds and resulting “extension risk” relative to such consumer asset-backed transactions in our insured portfolio and in our investment portfolio and decreased volume of capital markets activity.

Decreasing interest rates could result in early terminations of financial guarantee insurance policies in respect of which we are paid on an installment basis and do not receive a termination premium, thus reducing premium earned in respect of these transactions. Decreases in prevailing interest rates may also limit growth of or reduce investment income and may adversely impact the result of our interest rate swap portfolio.

Revenues and cash flow would be adversely impacted due to a decline in realization of installment premiums.

Due to the installment nature of a significant percentage of its premium income, Ambac Assurance has an embedded future revenue stream. The amount of installment premiums actually realized by Ambac Assurance could be reduced in the future due to factors such as early termination of insurance contracts, accelerated prepayments of underlying obligations or insufficiency of cash flows (by the premium paying entity). Additionally, the Segregated Account Rehabilitation Proceedings may result in the loss of installment premium income from such insured transactions if orders of the Rehabilitation Court are not effective. Such reductions would result in lower revenues.

We are subject to credit risk throughout our businesses, including large single risks, risk concentrations, correlated risks and reinsurance counterparty credit risk.

We are exposed to the risk that issuers of debt which we have insured (or with respect to which we have written credit derivatives), issuers of debt which we hold in our investment portfolio, reinsurers and other

 

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Item 1A. Risk Factors.

 

contract counterparties (including derivative counterparties) may default in their financial obligations, whether as the result of insolvency, lack of liquidity, operational failure, fraud or other reasons. These credit risks could cause increased losses and loss reserves, estimates of credit impairments and mark-to-market losses with respect to credit derivatives in our financial guarantee business; and we could experience losses and decreases in the value of our investment portfolio and, therefore, our financial strength. Such credit risks may be in the form of large single risk exposures to particular issuers, reinsurers or counterparties; losses caused by catastrophic events (including terrorist acts and natural disasters); losses caused by increases in municipal defaults; or losses in respect of different, but correlated, credit exposures.

Risks that impact assets in our investment portfolio could adversely affect our ability to pay our liabilities and accordingly have a negative effect on our operations.

Our investment portfolio may be adversely affected by events and developments in the capital markets including interest rate movements, credit rating downgrades, ABS and RMBS prepayment speeds, foreign exchange movements, spread volatility, and credit losses. To the extent we need to liquidate large blocks of investment assets in order to pay claims under financial guarantee insurance policies, to make payments under investment agreements and/or to collateralize our obligations under investment agreements and interest rate swaps, such investment assets could be sold at prices less than fair value as of December 31, 2013.

Market risks could adversely impact our assets posted as collateral in respect of investment agreements and interest rate swap transactions.

We are required to post collateral with respect to certain investment agreements and interest rate swap transactions. See Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Ratings and Collateral” of this Form 10-K. We will be required to post additional collateral if the market value of the assets used to collateralize our obligations declines or if there are changes in the collateral posting obligations under these agreements and transactions.

These collateral-posting obligations could have a material adverse effect on our liquidity. At present, these collateral-posting requirements are being partially satisfied by loans from Ambac Assurance to the Financial Services businesses. As required by Wisconsin law, these transactions were approved by the OCI. To the extent that collateral-posting requirements increase as a result of changes in market conditions, as described above, it is likely that Ambac Assurance would need to provide increased lending capacity to the Financial Services businesses in order to satisfy these collateral-posting obligations. Any such increases to lending capacity would be subject to the prior consent of the OCI; there can be no assurance that we would obtain such consent. We believe that the OCI would consider several factors in determining whether to grant such consent, including its view of Ambac Assurance’s financial condition at the time of such loan or contribution.

If the Financial Services businesses fail to post collateral as required, counterparties may be entitled to terminate the transactions. Upon such terminations, we may be forced to liquidate securities with unrealized mark-to-market losses which could have a material adverse effect on our liquidity. See Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Credit Ratings and Collateral” of this Form 10-K. The termination of such transactions, if unpaid by our Financial Services businesses, would trigger Ambac Assurance’s obligations to make payments under the financial guarantee insurance policies it previously issued. To the extent that the OCI determines that the payment by Ambac Assurance under such policies could place Ambac Assurance in a hazardous condition, the OCI could initiate rehabilitation proceedings with respect to Ambac Assurance.

 

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Item 1A. Risk Factors.

 

We are subject to credit and liquidity risk due to unscheduled and unanticipated withdrawals on Investment Agreements.

Ambac’s investment agreement business has issued investment agreements to investors that may allow for early withdrawal (i.e. deviate from a defined or expected withdrawal schedule). The provisions that allow for early withdrawal vary by transaction but include events such as credit events, early call provisions, loss events, construction project development variance and changes in tax laws. To the extent we experience an increase in unanticipated withdrawals, the Investment Agreement business may be required to liquidate certain asset holdings. Early liquidation of asset holdings could result in realized losses.

We are subject to the risk of litigation and regulatory inquiries or investigations, and the outcome of proceedings we are or may become involved in could have a material adverse effect on our business, operations, financial position, profitability or cash flows.

Ambac Assurance is defending various lawsuits relating to its financial guarantee business as well as securities that it has issued. In addition, the Company has received various regulatory inquiries and requests for information. Please see Note 18 to the Consolidated Financial Statements included in Part II, Item 8 of this Form 10-K for information on these various proceedings.

It is not possible to predict whether additional suits will be filed or whether additional inquiries or requests for information will be made, and it is also not possible to predict the outcome of litigation, inquiries or requests for information. It is possible that there could be unfavorable outcomes in these or other proceedings. Management is unable to make a meaningful estimate of the amount or range of loss that could result from unfavorable outcomes or of the expenses that will be incurred in defending these lawsuits. Under some circumstances, adverse results in any such proceedings and/or the incurrence of significant litigation expenses could be material to our business, operations, financial position, profitability or cash flows.

System security risks, data protection breaches and cyber-attacks could adversely affect our business and results of operations.

We rely on our information technology systems for many enterprise-critical functions and a prolonged failure or interruption of these systems for any reason could cause significant disruption to our operations and have a material adverse effect on our business, financial condition and operating results. Our information technology and application systems may be vulnerable to threats from computer viruses, natural disasters, unauthorized access, cyber attack and other similar disruptions. Computer hackers may be able to penetrate our network’s system security and misappropriate or compromise confidential information, create system disruptions or cause shutdowns. In addition to our own confidential information, we sometimes receive and are required to protect confidential information from third parties. To the extent any disruption or security breach results in a loss or damage to our data, or inappropriate disclosure of our confidential information or that of others, it could cause significant financial losses that are either not insured against or not fully covered by insurance, damage to our reputation, affect our relationships with third parties, lead to claims against us, result in regulatory action, or otherwise have a material adverse effect on our business or results of operations. In addition, we may be required to incur significant costs to mitigate the damage caused by any security breach, or to protect against future damage. Moreover, although we have disaster recovery and business continuity plans in place, we may not be able to adequately execute these plans in a timely fashion in the event of a disruption to our information technology and application systems.

Financial Markets have recently been affected by concerns over U.S. fiscal policy.

Financial markets have been affected by concerns over U.S. fiscal policy, including uncertainty regarding the federal budget, the federal government’s debt ceiling, and the federal deficit. These issues could, on their

 

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Item 1A. Risk Factors.

 

own, or combined with unfavorable economic conditions, send the United States into a new recession, have severe repercussions to the United States and global credit and financial markets, further exacerbate concerns over sovereign debt of other countries and disrupt economic activity in the United States and elsewhere. A recession in the United States could adversely affect the performance of Ambac’s investments or result in impairments, and could have a material adverse effect on Ambac’s business, results of operations and financial condition. In addition, future fiscal policies may have adverse effects on the economy and on consumers, which could increase the risk of default on collateral backing securities that we insure.

The determination of the amount of other-than temporary impairments taken on our investments is highly subjective and could materially impact our results of operations or financial position.

The determination of the amount of impairments on our investments vary by investment type and is based upon our periodic evaluation and assessment of known and inherent risks associated with the respective asset class. Such evaluations and assessments are revised as conditions change and new information becomes available. Management updates its evaluations regularly and reflects changes in impairments as such evaluations are revised. There can be no assurance that our management has accurately assessed the level of impairments taken in our financial statements. Furthermore, additional impairments may need to be taken in the future. Historical trends may not be indicative of future impairments. We use externally developed financial models to project impairments with respect to RMBS held in our investment portfolio, including Ambac Assurance guaranteed RMBS. Differences in the models we employ and/or flaws in these models and/or faulty assumptions inherent in these models and those determined by management, could lead to increased impairments with respect to RMBS in our investment portfolio.

We may incur losses resulting from operational risk due to inadequate or failed internal processes, breakdown of settlement or communication systems, inadequate execution of strategy or from external events leading to disruption of our business. Events subject to operational risk include:

 

   

Internal Fraud-misappropriation of assets, intentional mismarking of positions

 

   

External Fraud-theft of information, third-party theft and forgery

 

   

Clients, Products, & Business Practice-improper trade, fiduciary breaches

 

   

Damage to Physical Assets-vandalism

 

   

Business Disruption & System Failures-software failures, hardware failures; and

 

   

Execution, Delivery, & Process Management-data entry errors, accounting errors, failed mandatory reporting, settlement errors, and negligence.

We may be adversely affected by failures in services or products provided by third parties.

We have outsourced and may continue to outsource certain segments of our operations and business, and rely upon third-party vendors for other essential services and information, such as the provision of data used in setting loss reserves. A material failure by an external service or information provider or a material defect in the products, services or information provided thereby could adversely affect our financial condition and results of operations.

Our inability to attract and retain qualified executives and employees or the loss of any of these personnel could negatively impact our business.

Our ability to execute on our business strategies depend on the retention and recruitment of qualified executives and other professionals. We rely substantially upon the services of our current executive team. In addition to these officers, we require key staff with risk mitigation, structured finance, insurance, credit,

 

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investment, accounting, finance, legal and technical skills. As a result of Ambac’s financial situation and the rehabilitation proceedings for the Segregated Account, there is an increased risk that executive officers and other key staff will leave the Company and replacements may not be incented to join the Company. The loss of the services of members of our senior management team or our inability to hire and retain other talented personnel could delay or prevent us from succeeding in executing our strategies, which could further negatively impact our business.

 

Item 1B. Unresolved Staff Comments

None.

 

Item 2. Properties

The executive office of Ambac is located at One State Street Plaza, New York, New York 10004, which consists of approximately 103,500 square feet of office space, under an agreement with an initial term that expires in December 2015. This office houses operations for all reportable business segments.

Ambac UK also maintains offices in the London, England, which consist of approximately 3,500 square feet of office space, under an agreement that expires in October 2020, with an earlier term option at Ambac UK’s discretion; and in Italy (Milan), under an agreement that expires in December 2014.

Additionally, Ambac maintains a disaster recovery site as part of its Disaster Recovery Plan, which is located approximately 100 miles from One State Street Plaza under a lease that also expires in December 2015. This remote warm-back-up facility is complete with user work stations, phone system, data center, internet connectivity and a power generator, capable of serving the needs of the disaster recovery team to support all business segment operations. The plan, facility and systems are revised and upgraded where necessary, and user tested annually to confirm their readiness.

 

Item 3. Legal Proceedings

Please refer to Note 18 “Commitments and Contingencies” of the Consolidated Financial Statements located in Part II, Item 8 in this Form 10-K for a discussion on Legal Proceedings against Ambac and its subsidiaries.

 

Item 4. Mine Safety Disclosures

Not applicable.

Part II

 

Item 5. Market for Registrant’s Common Equity and Related Stockholder Matters and Issuer Purchases of Equity Securities

Market Information

On May 1, 2013 (the “Effective Date”), all of the outstanding common stock and all other equity securities, including stock options and restricted stock units of the Predecessor Company, were cancelled pursuant to the terms of the Reorganization Plan. Prior to the Effective Date, Ambac’s common stock traded on the OTCQB, the middle tier of the OTC marketplace reserved for fully reporting issuers, under the symbol “ABKFQ”. The common stock of the Successor Company began trading on NASDAQ under the symbol “AMBC” on the Effective Date. The Successor Company authorized capital stock consists of 130 million shares of common stock and 20 million shares of preferred stock. Under the Reorganization Plan Ambac also distributed warrants to holders of allowed general unsecured claims and subordinated debt securities, which entitle such holders to

 

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Item 5. Market for Registrant’s Common Equity and Related Stockholder Matters and Issuer Purchases of Equity Securities

 

acquire an additional 5,047,138 shares of new common stock of the Company at an exercise price of $16.67 per share at any time on or prior to April 30, 2023. There are also 3,779,146 shares of Ambac common stock authorized for future awards under the 2013 Incentive Compensation Plan.

The following table sets forth the high and low bid quotations of Ambac’s Common Stock as reported by Bloomberg Financial Services, Inc. for the periods presented.

 

     High      Low      Dividends  

2013:

        

Fourth Quarter

   $ 25.16       $ 15.03       $ 0   

Third Quarter

   $ 25.70       $ 17.64       $ 0   

Second Quarter (beginning May 1)

   $ 27.25       $ 18.00       $ 0   

Holders

On February 28, 2014, there were 34 stockholders of record of Ambac’s common stock.

Dividends

Information concerning payments and restrictions on the payment of dividends is set forth in Item 1 above under the caption “Insurance Regulatory Matters—Dividend Restrictions, Including Contractual Restrictions” and in Note 9 to the Consolidated Financial Statements located in Part II, Item 8 in this Form 10-K.

Purchases of Equity Securities By the Issuer and Affiliated Purchasers

The following table summarizes Ambac’s activity of share purchases during the fourth quarter of 2013. When restricted stock unit awards issued by Ambac become taxable compensation to employees, shares may be withheld to cover the employee’s withholding taxes. In December 2013, Ambac purchased shares from employees that settled restricted stock units to meet the required tax withholdings.

 

     Total Shares
Purchased
     Average Price
Paid Per Share
     Total Number of
Shares Purchased
as Part of Publicly
Announced Plan
     Maximum
Number of Shares
That May Yet Be
Purchased Under
the Plan
 

October 2013

     —        $ —          —          —    

November 2013

     —        $ —          —          —    

December 2013

     937      $ 20.63        —          —    
  

 

 

    

 

 

    

 

 

    

 

 

 

Fourth Quarter 2013

     937      $ 20.63        —          —    
  

 

 

    

 

 

    

 

 

    

 

 

 

There were no other repurchases of equity securities made during the three months ended December 31, 2013. Ambac does not have a stock repurchase program.

 

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Securities Authorized for Issuance under Equity Compensation Plans

The following table provides information as it relates to our 2013 Incentive Compensation Plan as of December 31, 2013:

 

Plan Category

  Number of securities to be
issued upon exercise of
outstanding options (a)
    Weighted-average exercise
price of outstanding options
    Number of securities  remaining
available for future issuance
under equity compensation plans
(excluding securities reflected in
column (a)) (c)
 

Equity compensation plans approved by security holders (1)

    66,668      $ 20.63        3,779,146   

Equity compensation plans not approved by security holders

    —          —          —     
 

 

 

   

 

 

   

 

 

 

Total

    66,668      $ 20.63        3,779,146   
 

 

 

   

 

 

   

 

 

 

 

(1) Additional information on the 2013 Incentive Compensation Plan is included in Note 17 to the Consolidated Financial Statements located in Part II, Item 8 in the Form 10-K.

 

Item 6. Selected Financial Data

Not applicable.

 

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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

OVERVIEW

Ambac Financial Group, Inc. (“Ambac” or the “Company”), headquartered in New York City, is a financial services holding company incorporated in the State of Delaware on April 29, 1991. On May 1, 2013 (the “Effective Date”), Ambac emerged from Chapter 11 bankruptcy protection when the Second Modified Fifth Amended Plan of Reorganization of Ambac Financial Group, Inc. (the “Reorganization Plan”) became effective. On December 26, 2013, the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) entered an order of final decree closing Ambac’s Chapter 11 case. Ambac filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court on November 8, 2010 as a result of losses incurred since the beginning of the financial crisis in 2007. Refer to Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K for further discussion of Ambac’s bankruptcy.

Ambac has two reportable business segments: Financial Guarantee and Financial Services.

Ambac’s Financial Guarantee business segment is conducted through its primary operating subsidiary, Ambac Assurance Corporation (“Ambac Assurance”), and its wholly owned subsidiary, Ambac Assurance UK Limited (“Ambac UK”). Insurance policies insured by Ambac Assurance and Ambac UK guarantee payment when due of the principal and interest on the obligations guaranteed. Ambac Assurance also has another wholly-owned financial guarantee subsidiary, Everspan Financial Guarantee Corp. (“Everspan”), which has been in runoff since its acquisition in 1997. The deterioration of Ambac Assurance’s financial condition resulting from losses in its insured portfolio since 2007 has prevented Ambac Assurance from being able to write new business. An inability to write new business has and will continue to negatively impact Ambac’s future operations and financial results. Ambac Assurance’s ability to pay dividends and, as a result, Ambac’s liquidity, have been significantly restricted by the deterioration of Ambac Assurance’s financial condition, by the rehabilitation of the Segregated Account (defined below) and by the terms of the Settlement Agreement (dated as of June 1, 2010, by and among Ambac, Ambac Assurance, Ambac Credit Products LLC (“ACP”) and counterparties to credit default swaps with ACP that were guaranteed by Ambac Assurance). Ambac Assurance is also restricted in its ability to pay dividends pursuant to the terms of its Auction Market Preferred Shares. It is highly unlikely that Ambac Assurance will be able to make dividend payments to Ambac for the foreseeable future. Refer to Part I, Item 1, “Insurance Regulatory Matters – Dividend Restrictions, Including Contractual Restrictions” and Note 9 to the Consolidated Financial Statements located in Part II, Item 8, for more information on dividend payment restrictions.

In March 2010, Ambac Assurance established a segregated account pursuant to Wisconsin Stat. §611.24(2) (the “Segregated Account”) to segregate certain segments of Ambac Assurance’s liabilities. The Office of the Commissioner of Insurance for the State of Wisconsin (“OCI” (which term shall be understood to refer to such office as regulator of Ambac Assurance and to refer to the Commissioner of Insurance for the State of Wisconsin as rehabilitator of the Segregated Account (the “Rehabilitator”), as the context requires)) commenced rehabilitation proceedings with respect to the Segregated Account (the “Segregated Account Rehabilitation Proceedings”) in order to permit the OCI to facilitate an orderly run-off and/or settlement of the liabilities allocated to the Segregated Account pursuant to the provisions of the Wisconsin Insurers Rehabilitation and Liquidation Act. Ambac Assurance is not, itself, in rehabilitation proceedings. Refer to Note 1 to the Consolidated Financial Statements located in Part II, Item 8, for more information on the Segregated Account.

Ambac’s Financial Services business segment is conducted through its financial services subsidiaries, which provide financial and investment products, including investment agreements, funding conduits and interest rate swaps, principally to the clients of its financial guarantee business. Ambac Assurance insures all of the obligations of its financial services subsidiaries. These businesses are in active runoff, which is being effectuated by means including transaction terminations, settlements, and scheduled amortization of contracts. The Financial Services business also maintains interest rate derivatives to mitigate exposure to floating rate insured obligations in the Financial Guarantee segment.

 

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Following emergence from bankruptcy, Ambac’s primary goal is to maximize shareholder value through executing the following key strategies:

 

   

Increasing the value of its investment in Ambac Assurance by actively managing its assets and liabilities with a focus on maximizing investment portfolio risk-adjusted returns and mitigating or remediating losses on poorly performing transactions through executing policy commutations, repurchasing liabilities at a discount, pursuing recoveries of losses through litigation and the exercise of contractual and legal rights, restructuring transactions and other means; and

 

   

Pursuing new financial services businesses, apart from Ambac Assurance. These new businesses may include advisory, asset servicing, asset management and/or insurance.

The execution of Ambac’s principal strategy with respect to liabilities and associated rights allocated to the Segregated Account is subject to the authority of the Rehabilitator to control the management of the Segregated Account. In exercising such authority, the Rehabilitator will act for the benefit of policyholders, and will not take into account the interests of Ambac. Similarly, by operation of the contracts executed in connection with the establishment, and subsequent rehabilitation, of the Segregated Account, the Rehabilitator retains rights to oversee and approve certain actions taken in respect of Ambac Assurance. This oversight by the Rehabilitator could impair Ambac’s ability to execute certain of its strategies. Refer to Note 1 to the Consolidated Financial Statements located in Part II, Item 8, for more information on the Segregated Account and the authority of the Rehabilitator.

Although we are exploring new business opportunities for Ambac, no assurance can be given that we will be able to execute the acquisition or development of any new business. In addition, there can be no assurance that we will be able to generate or obtain the financial and other resources that may be required to finance the acquisition or development of any new business. Due to these factors, as well as uncertainties relating to the ability of Ambac Assurance to deliver value to Ambac, the value of our securities is speculative. For additional risks and uncertainties concerning Ambac, please refer to Part I, Item 1A of this Form 10-K.

CRITICAL ACCOUNTING POLICIES AND ESTIMATES

The discussion and analysis of our financial condition and results of operations is based upon our Consolidated Financial Statements, which have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”). An appreciation of our critical accounting policies is necessary to understand our financial results. These policies require management to make difficult and subjective judgments regarding uncertainties, and as a result, such estimates may significantly impact our financial results. The precision of these estimates and the likelihood of future changes depend on a number of underlying variables and a range of possible outcomes. As a result, actual results may differ from these estimates. We applied our critical accounting policies and estimation methods consistently in all material respects, and for all periods presented. Management has identified (i) the accounting for loss and loss expenses of non-derivative financial guarantees, (ii) the valuation of financial instruments, including the determination of whether an investment impairment is other-than-temporary, (iii) valuation allowance on deferred tax assets, and (iv) goodwill as critical accounting policies. This discussion should be read in conjunction with the Consolidated Financial Statements and notes thereon included elsewhere in this report. We have discussed with the Audit Committee management’s assessment of such critical accounting policies, the reasons why they are considered critical, and how current and anticipated future events impact those determinations. The Company’s critical accounting policies and estimates are as follows:

Losses and Loss Expenses of Non-derivative Financial Guarantees:

The loss and loss expense reserves for financial guarantee insurance discussed herein relates only to Ambac’s non-derivative insurance business for insurance policies issued to beneficiaries, including VIEs, for

 

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which we do not consolidate the VIE. Losses and loss expenses are based upon estimates of the ultimate aggregate losses inherent in the non-derivative financial guarantee portfolio as of the reporting date. The evaluation process for determining the level of reserves is subject to certain estimates and judgments based on our assumptions regarding the probability of default by the issuer of the insured security, probability of settlement outcomes (which may include commutation settlements, refinancings and/or other settlement outcomes) and expected loss severity of credits for each insurance contract.

The Financial Services—Insurance Topic of the ASC provides accounting guidance for financial guarantee insurance contracts issued by insurance enterprises, including the recognition and measurement of claim liabilities (i.e. loss reserves). Under this guidance, a loss reserve is recorded on the balance sheet for the excess of (a) unpaid claims plus the present value of expected losses, over (b) the unearned premium reserve (“UPR”) for an insurance contract. Expected losses represent projected net cash flows and are defined as the expected future claims to be paid under an insurance contract plus the impact of potential settlement outcomes upon future installment premiums, less potential recoveries. To the extent (a) is less than (b), no loss reserve is recorded. Changes to the loss reserve estimate in subsequent periods are recorded as a loss and loss expense on the income statement. For those policies where the potential recovery is less than the expected future claims, the resulting net cash outflow is recorded as a “Losses and loss expense reserve” liability. For those policies where losses have been paid, but not yet recovered, the potential recovery may be greater than the expected future claims and the resulting net cash inflow is recorded as a “Subrogation recoverable” asset.

Ambac’s loss reserves are based on management’s on-going review of the non-derivative financial guarantee insurance portfolio. Active surveillance of the insured portfolio enables Ambac’s Portfolio Risk Management (“PRM”) group to track credit migration of insured obligations from period to period and update internal credit ratings for each transaction. Non-adversely classified credits are assigned a Class I or Survey List (“SL”) risk classification, while adversely classified credits are assigned a risk classification of Class IA through Class V. The criteria for an exposure to be assigned an adversely classified credit rating includes the deterioration of an issuer’s financial condition, underperformance of the underlying collateral (for collateral dependent transactions such as mortgage-backed or student loan securitizations), poor performance by the servicer of the underlying collateral and other adverse economic events or trends. The servicer of the underlying collateral of an insured securitization transaction is a consideration in assessing credit quality because the servicer’s performance can directly impact the performance of the related issue. For example, a servicer of a mortgage-backed securitization that does not remain current in its collection and loss mitigation efforts could cause an increase in delinquencies and potential defaults of the underlying obligations. Similarly, loss severities increase when a servicer does not effectively handle loss mitigation activities such as (i) the advancing of delinquent principal and interest and default-related expenses which are deemed to be recoverable by the servicer, (ii) pursuit of loan charge-offs which maximize cash flows from the mortgage loan pool and (iii) foreclosure and real estate owned disposition strategies and timelines.

The population of credits evaluated in Ambac’s loss reserve process are (i) all adversely classified credits and (ii) non-adversely classified credits which had an internal Ambac credit rating downgrade since the transaction’s inception. One of two approaches is then utilized to estimate expected losses to ultimately determine if a loss reserve should be established. The first approach is a statistical expected loss approach, which considers the likelihood of all possible outcomes. The “base case” statistical expected loss is the product of: (i) the net par outstanding on the credit; (ii) internally developed historical default information (taking into consideration internal ratings and average life of an obligation); (iii) internally developed loss severities; and (iv) a discount factor. The loss severities and default information are based on rating agency information, are specific to each bond type and were established and approved by Ambac’s senior management. For certain credit exposures, Ambac’s additional monitoring, loss remediation efforts and probabilities of potential settlement outcomes may provide information relevant to adjust this estimate of “base case” statistical expected losses. As such, the loss severities used in estimating the “base case” statistical expected losses may be adjusted based on

 

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the professional judgment of the surveillance analyst monitoring the credit with the approval of senior management. Analysts may accept the “base case” statistical expected loss as the best estimate of expected loss or assign multiple probability weighted scenarios to determine an adjusted statistical expected loss that better reflects management’s view of a given transaction’s expected losses, as well as the potential for additional remediation activities (i.e. commutations).

The second approach entails the use of more precise estimates of expected losses (future claim payments, net of potential recoveries, expected to be paid to the holder of the insured financial obligation). Ambac’s surveillance group will consider the likelihood of all possible outcomes and develop appropriate cash flow scenarios. This approach can include the utilization of market accepted models to project future claim payment estimates. We have utilized such models for residential mortgage-backed and student loan exposures. In general, these models use historical performance of the collateral pools in order to then assume or derive future performance characteristics, such as default and voluntary prepayment rates, which in turn determine projected future claim payments. In this approach a probability-weighted expected loss estimate is developed based on assigning probabilities to multiple claim payment scenarios and applying an appropriate discount factor. Additionally, we assign a probability to the issuer’s ability to refinance an insured issue and/or Ambac’s ability to execute a potential settlement (i.e. commutation) of the insurance policy, including the impact on future installment premiums. The commutation scenarios and the related probabilities of occurrence vary by transaction, depending on our view of the likelihood of negotiating such a transaction with issuers and/or investors. The methodology used to estimate the most substantial amount of the potential recovery component of expected losses is further described in the “RMBS Representation and Warranty Subrogation Recovery” section below and in Note 2 to the Consolidated Financial Statements, located in Part II, Section 8 of this Form 10-K.

The discount factor applied to the statistical expected loss approach is based on a risk-free discount rate corresponding to the remaining expected weighted-average life of the exposure and the exposure currency. For the cash flow scenario approach, discount factors are applied based on a risk-free discount rate term structure and correspond to the date of each respective cash flow payment or recovery and the exposure currency. Discount factors are updated for the current risk-free rate each reporting period.

Ambac establishes loss expense reserves based on our estimate of expected net cash outflows for loss expenses, such as legal and consulting costs.

As the probability of default for an individual credit increases and/or the severity of loss given a default increases, our loss reserve for that insured obligation will also increase. Political, economic, credit or other unforeseen events could have an adverse impact on default probabilities and loss severities. The loss reserves for many transactions (such as many public finance exposures) are derived from the issuer’s creditworthiness. The loss reserves for other transactions which have no direct issuer support, such as most structured finance exposures, including RMBS, are derived from the default activity and loss given default of collateral supporting the transactions. Many transactions have a combination of issuer/entity and collateral support. Loss reserves reflect our assessment of the transaction’s overall structure, support and expected performance. Loss reserve volatility will be a direct result of the credit performance of our insured portfolio, including the number, size, bond types and quality of credits included in our loss reserves as well as our ability to execute commutations. The number and severity of credits included in our loss reserves depend to a large extent on transaction specific attributes, but will generally increase during periods of economic stress and decline during periods of economic stability. Reinsurance contracts mitigate our loss reserve. Since Ambac has little exposure ceded to reinsurers, it is unlikely to have a significant effect on loss reserve volatility.

No final decision has been announced by the Rehabilitator with respect to effectuating or amending the Segregated Account Rehabilitation Plan. Possible modifications to the Segregated Account Rehabilitation Plan, or additional orders from the Rehabilitation Court, with respect to the form, amount and timing of satisfying

 

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permitted policy claims could have a material effect on the estimation of loss reserves. See Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K for more information.

The table below indicates the number of credits, gross par outstanding and gross loss reserves (including loss adjustment expenses) related to policies in Ambac’s loss reserves at December 31, 2013 and 2012:

 

    Successor Ambac – December 31, 2013     Predecessor Ambac – December 31, 2012  

($ in millions)

  Number of
credits
    Gross  par
outstanding (1)
    Gross  Loss
Reserves (1)(2)(3)
    Number of
credits
    Gross  par
outstanding (1)
    Gross  Loss
Reserves (1)(2)(3)
 

RMBS

    179      $ 11,683      $ 3,312        177      $ 14,127      $ 3,560   

Student Loans

    36        2,352        982        48        4,224        1,041   

Domestic Public Finance

    111        5,019        338        81        3,151        227   

All other credits

    13        3,153        727        10        2,558        1,156   

Loss adjustment expenses

    —         —         111        —         —         138   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Totals

    339      $ 22,207      $ 5,470        316      $ 24,060      $ 6,122   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Ceded Par Outstanding and ceded loss and loss expense reserves at December 31, 2013 and December 31, 2012, are $901 and $122 and $1,017 and $143, respectively. Ceded loss reserves are included in Reinsurance Recoverable on paid and unpaid losses.
(2) Loss reserves at December 31, 2013 of $5,470 are included in the balance sheet in the following line items: Losses and loss expense reserve—$5,969 and Subrogation recoverable—$499. Loss reserves at December 31, 2012 of $6,122 are included in the balance sheet in the following line items: Losses and loss expense reserve—$6,619 and Subrogation recoverable—$497.
(3) Included in Gross Loss Reserves are unpaid claims of $3,904 million and $3,388 million at December 31, 2013 and December 31, 2012, respectively, related to policies allocated to the Segregated Account.

RMBS

Ambac insures RMBS transactions collateralized by first-lien mortgages. Ambac classifies its insured first-lien RMBS exposure principally into two broad credit risk classes: mid-prime (including Alt-A, interest only, and negative amortization) and sub-prime. Mid-prime loans were typically made to borrowers who had stronger credit profiles relative to sub-prime loans, but weaker than prime loans. Compared with mid-prime loans, sub-prime loans typically had higher loan-to-value ratios, reflecting the greater difficulty that sub-prime borrowers have in making down payments and the propensity of these borrowers to extract equity during refinancing. The mid-prime category includes:

 

   

Loans with specific payment features that afforded borrowers the option to have lower payments in the early years with potential resets after several years. For example, so-called interest only loans have monthly payments comprised of interest but no principal. So called negative amortization loans permit borrowers to defer interest and principal in the early years and then make higher payments in the period after the reset. Both types may also have lower interest rates in the early years. Increases in monthly payments, commonly called payment shock, raise the probability of delinquencies and defaults given the decline in house prices that has caused many borrowers’ loan balances to exceed their homes’ market value.

 

   

Loans backed by borrowers who typically did not meet standard agency guidelines for documentation requirement, property type or loan-to-value ratio. These are typically higher-balance loans made to individuals who might have past credit problems that were not severe enough to warrant “sub-prime” classification, or borrowers who chose not to obtain a prime mortgage due to documentation requirements.

 

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Ambac has also insured RMBS transactions collateralized predominantly by second-lien mortgage loans such as closed-end seconds and home equity lines of credit. A second-lien mortgage loan is a type of loan in which the borrower uses the equity in their home as collateral and the second-lien loan is subordinate to the first-lien loan outstanding on the home. The borrower is obligated to make monthly payments on both their first and second-lien loans. If the borrower defaults on the payments due under these loans and the property is subsequently liquidated, the liquidation proceeds are first utilized to pay off the first-lien loan (as well as costs due the servicer) and any remaining funds are applied to pay off the second-lien loan. As a result of this subordinate position to the first-lien loan, second-lien loans carry a significantly higher severity in the event of a loss, typically at or above 100% in the current housing market.

Methodology for Estimating Expected Losses in our RMBS Portfolio

Ambac primarily utilizes a licensed third-party cash flow model (“regression model”) to develop estimates of projected losses for both our first and second lien transactions. The regression model projects losses utilizing: (i) the RMBS transaction’s collateral characteristics and status, (ii) the RMBS transaction’s payment waterfall structure, including the application of interest and principal payments and recoveries, (iii) projected home price appreciation (“HPA”), and (iv) projected interest rates. We provide the regression model vendor with both HPA projections from a recognized source and interest rate projections we develop from market sources. We generally utilize waterfall structures from a market accepted vendor of securitization deal structures. In some cases, we may utilize an internally developed waterfall structure when our legal and commercial analysis of the transaction’s payment structure differs from the vendor’s waterfall structure. We compare monthly claims submitted against the trustees’ reports, third-party provided waterfall models and our understanding of the transactions’ structures to identify and resolve discrepancies. We also review the vendor’s published waterfall revisions to further identify material discrepancies. Resolving discrepancies is challenging and may take place over an extended period of time. Moreover, transaction documents are subject to interpretation, and our interpretation or that of the vendor and as reflected in our loss reserves may prove to be incorrect and/or not executed by the trustees directing cash flows in the future.

The regression model is subject to ongoing refinements resulting from industry research as well as performance analysis that may better inform model assumptions, improvements to model capabilities and other factors. For example, two enhancements were made to the model in 2012 to better reflect the potential impact of borrowers’ payment histories on default rates and also to normalize HPA seasonality.

In our experience, market performance and model characteristics change and are updated through time and a regular review of models and the overall approach to loss estimation is beneficial. Our ability to drive change in the models we license is limited and subject to the expertise and views of the independent developer/vendor. On the other hand, our ability to estimate losses without such models is difficult and challenging for a large portfolio across multiple RMBS exposure types.

Summarized below is our approach to projecting claims and ultimate losses in our RMBS portfolio.

Second-Lien

The regression model estimates mortgage loan collateral performance, the effect of such collateral cash flows within the transaction waterfall and the liability structure we insure. Collateral performance is frequently modeled at the deal level given the paucity of mortgage loan level data for second-lien transactions. In the absence of specific loan-level information, the deal-level approach processes a loan pool as if it were a single loan, selecting certain aggregated deal-level characteristics to then perform a statistical analysis using a multinomial logistic regression model. We use three home price appreciation (“HPA”) projection scenarios to develop a base case as well as stress and upside cases. The highest probability is assigned to the base case, with

 

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lower probabilities to the stress and upside cases. This deal-level approach of the regression model takes a relatively complicated monthly cash flow and simplifies it into two parts: a borrower-behavior-dependent stage and a servicer-behavior-dependent stage. The borrower stage is designed to forecast the probability of a loan’s present delinquency status transitioning to any of eight future statuses. The deal-level approach calculates defaults using a roll-rate that evaluates the possible future state of a loan based on its current status and three variables: average FICO (credit score), average current consolidated loan to value ratio (“CLTV”), and an overall quality indicator. The servicer-behavior-dependent stage governs a loan’s life cycle after it reaches 180 or more days delinquent. This stage evaluates the servicer’s propensity to foreclose or pursue a short sale, the speed of the foreclosure process, and the speed of the post-foreclosure distressed property liquidation. The transition probabilities between advanced delinquency and foreclosure, foreclosure and REO, and finally REO and ultimate liquidation are assumed by the model to depend upon how long a loan has already been in a particular status, as well as on the servicer and on state-specific liquidation timeline factors.

First-Lien

For most first-lien transactions, the regression model utilizes mortgage loan level data from recognized market sources to calculate each loan’s probability of default and prepayment based on the characteristics of the loan. The loan-level approach of the regression model uses the results of a regression analysis to project prepayment and default vectors on a monthly basis based on its embedded risks. For first-lien transactions that do not have loan-level data available, we use the deal-level approach of the regression model that is described in the Second-Lien section above.

There are three transitional stages with the loan-level approach of the regression model: current, prepayment or default. The model then looks beyond the stages to assess a set of loans based on a number of individual characteristics that are distinct to that set of loans. The model then estimates the rate at which a loan will prepay or default reducing the balance of each loan monthly during the projection period based on the borrower’s given probability of defaulting or prepaying for that month. Servicer behavior is a variable in the loan-level approach of the regression model used to calculate the impact of servicer performance on expected prepayments and defaults. Consistent with the second-lien modeling, we consider three HPA scenarios in the regression model to develop a base case as well as stress and upside cases. The highest probability is assigned to the base case, with lower probabilities to the stress and upside cases.

Additional RMBS factors for first and second-lien transactions

Additional factors that may impact ultimate RMBS losses include, but may not be limited to, mortgage insurance, government programs and servicer intervention. These factors, and the impact on our loss reserve estimate, are further discussed below:

Mortgage insurance : Six of our mortgage-backed transactions have pool-level mortgage insurance remaining. Pool mortgage insurance is a master policy issued to the mortgage securitization trust, which indemnifies the trust either on a first loss or mezzanine basis in the event that covered mortgage loans in the trust default. The mortgage insurance master policy specifies the particular characteristics and conditions of each individual loan within the mortgage trust that is subject to coverage. The policy also includes various conditions including exclusions, conditions for notification of loans in default and claims settlement. We have noted with regard to these transactions that payment by mortgage insurers of claims presented by the mortgage trusts has been inconsistent, resulting in higher claims presented under Ambac Assurance’s financial guarantee policies. As a result, the impact of mortgage insurance on our loss reserve estimate is negligible.

Government programs : In May of 2009, the Federal Government initiated the Home Affordable Modification Plan (HAMP) which allows servicers to modify loans. Under HAMP, after determining a borrower’s eligibility, a servicer can take a series of steps to reduce the borrower’s monthly mortgage payment.

 

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HAMP is applicable to the Ambac-wrapped transactions serviced by firms that have signed servicer participation agreements to modify loans under the program. Based on the observed activity reflected in data from government published sources, we believe this program is unlikely to have any additional material impact on Ambac-wrapped transactions; accordingly, we have not given any credit to HAMP or our loss reserves.

Servicer Intervention : We include in our modeling the steps which Ambac is taking to address shortcomings in servicing performance including transfers of servicing where such transfers have taken place. Ambac has initiated programs with special servicers that we believe will mitigate losses on such transactions through intervention strategies such as loan modifications, improved liquidation timelines, and short sales. Ambac believes these are the principal controllable factors that will result in reduced losses over time. Given the uncertainty in initiating additional programs of this nature, we give credit in our models only on exposures that have already transferred servicing or entered into special servicing agreements

Third party settlements : To the extent that we are aware of settlements between issuers and investors or trustees which may provide for recoveries within certain insured RMBS trusts, we have incorporated in our modeling of collateral losses in such trusts scenarios reflecting the probable amount and timing of these settlements.

RMBS Representation and Warranty Subrogation Recoveries

Ambac records subrogation recoveries as a component of its loss reserve estimate, related to securitized loans in RMBS transactions that breached certain representations and warranties described herein. Generally, the sponsor of an RMBS transaction provided representations and warranties with respect to the securitized loans, including representations with respect to the loan characteristics, the absence of fraud or other misconduct in the origination process, and attesting to the compliance of loans with the prevailing underwriting policies. In such cases, the sponsor of the transaction is contractually obligated to repurchase, cure or substitute collateral for any loan that breaches the representations and warranties. Ambac or its counsel engaged consultants with significant mortgage underwriting experience to review the underwriting documentation for mortgage loans underlying certain insured RMBS transactions. Transactions which exhibited exceptionally poor performance were chosen for further examination of the underwriting documentation supporting the underlying loans. Factors which Ambac believes to be indicative of poor performance include (i) high levels of early payment defaults, (ii) significant number of loan liquidations or charge-offs and resulting high levels of losses, and (iii) rapid elimination of credit protections inherent in the transactions’ structures. Clause (ii), “loan liquidations,” refers to loans for which the servicer has liquidated the related collateral and the securitization has realized losses on the loan; “charge-offs” refers to loans which have been written off as uncollectible by the servicer, thereby generating no recoveries to the securitization, and may also refer to the unrecovered balance of liquidated loans. In either case, the servicer has taken actions to recover against the collateral, and the securitization has incurred losses to the extent such actions did not result in full repayment of the borrower’s obligations. Refer to Note 2 and Note 8 of the Consolidated Financial Statements included in Part II, Item 8 of the Form 10-K for more information regarding the estimation process for representation and warranty subrogation recoveries.

STUDENT LOANS

Our student loan portfolio consists of credits collateralized by (i) federally guaranteed loans under the Federal Family Education Loan Program (“FFELP”) and (ii) private student loans. Whereas FFELP loans are guaranteed for a minimum of 97% of defaulted principal and interest, private loans have no government guarantee and therefore are subject to credit risk. Default data has shown a significant deterioration in the performance of private student loans underlying some of our transactions. Additionally, due to the failure of the auction rate markets, the interest rates on some student loan securities have increased significantly to punitive levels pursuant to the transaction terms. Such increases have caused the collateralization ratio in these

 

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transactions to deteriorate on an accelerated basis due to negative excess spread and/or the use of principal receipts to pay current interest. Rating agency downgrades of outstanding auction rate notes have resulted in step-ups of the interest rate payable on such securities which, in certain cases, has further accelerated the erosion of the trust estate.

Methodology for Projecting Expected Losses

The calculation of loss reserves for our student loan portfolio involves evaluating numerous factors that can impact ultimate losses. The factor which contributes the greatest degree of uncertainty in ascertaining appropriate loss reserves is the long time horizon associated with the final legal maturity date of the bonds. Most of the student loan bonds which we insure were issued with original terms of 20 to 40 years until final maturity. Since our policy covers timely interest and ultimate principal payment, our loss projections must make assumptions for many factors covering a long time horizon. Key assumptions that will impact ultimate losses include but are not limited to the following: collateral performance (which is highly correlated to the economic environment), interest rates, operating risks associated with the issuer, servicers, administrators, issuers’ willingness and ability to refinance, investor appetite for tendering auction rate securities at a discount and, as applicable, Ambac’s ability and willingness to commute policies.

In evaluating our student loan portfolio, the majority of our losses were projected using a cash flow approach; for the remainder we use a statistical expected loss approach. As more fully described in Note 2 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K, the statistical methodology uses probability of default and loss given default (“LGD”) metrics under various scenarios to derive a weighted average loss expectation. The scenarios used under the statistical expected loss approach evaluate each transaction under base case and stress case scenarios. The main drivers in assigning appropriate probabilities to LGDs for each policy includes an analysis of the collateral mix; debt type and interest rates; parity level; enhancement levels and remediation opportunities. We utilize the statistical expected loss approach for certain deals in our student loan portfolio, such as (i) deals where collateral loan level data is unavailable (and thus cash flow models, as more fully discussed below could not be used), and (ii) deals where we do not expect to experience meaningful losses.

In order to project collateral performance under the cash flow approach, we develop collateral loss estimations to derive transaction-level assumptions such as default, recovery and prepayment assumptions based on analysis of historical experience adjusted for current economic conditions and changes to the collateral composition since origination. These assumptions are incorporated into two third party liability/waterfall models to develop loss estimates. The models allow us to capture the impact of each transaction’s specific structure (e.g. the waterfall structure, triggers, redemption priority). The first or primary model is from a market-accepted vendor that provides software to model securitization liability structures and the second model is from another market-accepted vendor where Ambac contracted a third-party to use the software to calculate our loss estimates since the primary vendor did not have all of our transactions modeled.

We develop and assign probabilities to multiple cash flow scenarios based on each transaction’s unique characteristics. Probabilities assigned are based on available data related to the credit, information from contact with the issuer (if applicable), and any economic or market information that may impact the outcomes of the various scenarios being evaluated. Our base case usually projects deal performance out to maturity using expected loss assumptions and interest rates utilizing the projected forward interest rate curve at the reporting date. As appropriate, we also develop other cases that incorporate various upside and downside scenarios that may include changes to defaults, recoveries and interest rates.

In estimating loss reserves, we also incorporate scenarios which represent remediation strategies. Remediation scenarios may include the following; (i) a potential refinancing of the transaction by the issuer; (ii) the issuer’s ability to redeem outstanding securities at a discount, thereby increasing the structure’s ability to

 

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absorb future losses; and (iii) our ability to terminate the policy in whole or in part (e.g. commutation). The remediation scenarios and the related probabilities of occurrence vary by policy depending on on-going discussions and negotiations that are underway with issuers and/or investors. In addition to commutation negotiations that are underway with various counterparties in various forms, our reserve estimates may also include scenarios which incorporate our ability to commute additional exposure with other counterparties.

REASONABLY POSSIBLE ADDITIONAL LOSSES

Ambac’s management believes that the reserves for losses and loss expenses and unearned premium reserves are adequate to cover the ultimate net cost of claims, but reserves for losses and loss expenses are based on estimates and there can be no assurance that the ultimate liability for losses will not exceed such estimates. Accordingly, it is possible that our loss estimate assumptions for insurance policies discussed above could be understated. We have attempted to identify reasonably possible additional losses using more stressful assumptions. The reasonably possible scenario considers the highest stress scenario that was utilized in the development of our probability-weighted expected loss at December 31, 2013 and assumes an inability to execute commutation transactions with issuers and/or investors. Although we do not believe it is reasonably possible to have worst case outcomes in all cases, it is reasonably possible we could have worst case outcomes in some or even many cases. Similarly, it is also reasonably possible we will achieve better outcomes than our recorded probability weighted loss reserve.

RMBS

Changes to assumptions that could make our reserves under-estimated include deterioration in housing prices, poor servicing, the effects of a weakened economy marked by growing unemployment and wage pressures, and/or illiquidity of the mortgage market. Additionally, our actual subrogation recoveries could be significantly lower than our current estimate of $2,207 million if the sponsors of these transactions: (i) fail to honor their obligations to repurchase the mortgage loans, (ii) successfully dispute our breach findings, or (iii) no longer have the financial means to fully satisfy their obligations under the transaction documents.

In the case of both first and second-lien exposures, the regression model’s reasonably possible stress case assumes a significantly harsher HPA projection, which in turn drives higher defaults and severities. Using this approach, the reasonably possible increase in loss reserves for RMBS credits for which we have an estimate of expected loss at December 31, 2013 could be approximately $188 million.

Student Loans

Changes to assumptions that could make our reserves under-estimated include but are not limited to the interest rate environment, an increase in default rates and loss severities on the collateral due to economic factors, as well as a failure of issuers to refinance insured bonds which have a failed debt structure, such as auction rate securities. For student loan credits for which we have an estimate of expected loss at December 31, 2013, the reasonably possible increase in loss reserves could be approximately $685 million.

Public Finance

It is possible our loss reserves for public finance credits may be materially under-estimated because most credits and the portfolio as a whole have possible outcomes more adverse than our recorded loss reserves. For public finance credits with loss reserves at December 31, 2013, the sum of all losses in the highest stress case used in our current loss reserving process is $1,577 million greater than the current probability weighted loss reserve. Such stress case losses are developed based on management’s view about all possible outcomes. In arriving at such view, management makes considerable judgments about the possibility of various future events. Such judgments may not conform to outcomes considered possible by others.

 

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In our experience, losses in the public finance portfolio have been contained, with most of our adversely classified credits resolving without loss to Ambac. However, future experience may differ from our past experience. Recently, a number of municipalities have filed for bankruptcy under Chapter 9 of the Bankruptcy Code. Ambac has exposure to four such municipalities in bankruptcy. Outcomes in municipal bankruptcies are challenging to project given their complexity and long duration, as well as their relative infrequency and the uniqueness of each case. In one case, the City of Detroit has suggested general obligation creditors, such as Ambac, may suffer losses of as much as 90% of their exposure. Should Detroit succeed in delivering high severities, other stressed municipalities may be encouraged to similarly resolve their liabilities by including their debt, in bankruptcy. High severity outcomes are unprecedented, would represent a paradigm shift in the municipal bond market and have not been factored into our current loss reserves in most cases. Ambac continues to evaluate the impact of Detroit’s bankruptcy and other developments in the municipal credit markets on our public finance portfolio. Another potentially adverse development that could cause the loss reserves on our public finance credits to be underestimated is deterioration in the municipal bond market that deprives issuers’ access to funding necessary to avoid defaulting on their obligations, including debt service. While our loss reserves consider our judgment regarding issuers’ financial flexibility to adapt to adverse markets, they may not adequately capture sudden, unexpected, or protracted market volatility that closes markets.

Other Credits

It is possible our loss reserves on other types of credits may be materially under-estimated because most credits have possible outcomes more adverse than the recorded loss reserve. For all other credits for which we have an expected loss, the sum of all the highest stress case loss scenarios is $755 million greater than the current loss reserve at December 31, 2013.

Valuation of Financial Instruments:

Ambac’s financial instruments that are reported on the Consolidated Balance Sheets at fair value and subject to valuation estimates primarily include investments in fixed income securities, VIE assets and liabilities and derivatives comprising credit default and interest rate swap transactions. Surplus notes issued by Ambac Assurance or the Segregated Account of Ambac Assurance were recorded at fair value at the date of issuance and at the Fresh Start reporting date and subsequently reported at amortized cost within Long-term debt on the Consolidated Balance Sheets.

The fair market values of financial instruments held are determined by using independent market sources when available and valuation models when market quotes are not available. The Fair Value Measurement Topic of the ASC requires the categorization of these assets and liabilities according to a fair value valuation hierarchy. Approximately 81% of our assets and approximately 62% of our liabilities are carried at fair value and categorized in either Level 2 of the valuation hierarchy (meaning that their fair value was determined by reference to quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in inactive markets and other observable inputs) or Level 3 (meaning that their fair value was determined by reference to significant inputs that are unobservable in the market and therefore require a greater degree of management judgment). The determination of fair value for financial instruments categorized in Level 2 or 3 involves significant judgment due to the complexity of factors contributing to the valuation. Third-party sources from which we obtain independent market quotes also use assumptions, judgments and estimates in determining financial instrument values and different third parties may use different methodologies or provide different prices for securities. In addition, the use of internal valuation models for certain highly structured instruments, such as credit default swaps, require assumptions about markets in which there has been a negligible amount of trading activity for several years. As a result of these factors, the actual trade value of a financial instrument in the market, or exit value of a financial instrument position owned by Ambac, may be significantly different from its recorded fair value. Refer to Note 10 to the Consolidated Financial Statements in Item 8 of this Form 10-K for discussion related to the transfers in and/or out of Level 1, 2 and 3 fair value categories.

 

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Investment in Fixed Income Securities

Investments in fixed income securities are accounted for in accordance with the Investments—Debt and Equity Securities Topic of the ASC. This guidance requires that all debt instruments and certain equity instruments be classified in Ambac’s Consolidated Balance Sheets according to their purpose and, depending on that classification, be carried at either cost or fair market value. The fair values of fixed income investments held in the investment portfolios of Ambac and its operating subsidiaries are based primarily on quoted market prices received from dealer quotes or alternative pricing sources with reasonable levels of price transparency. For those fixed income investments where quotes were not available, fair values are based on internal valuation models. Refer to Note 10 to the Consolidated Financial Statements in Item 8 of this Form 10-K for further discussion of the valuation methods, inputs and assumptions for fixed income securities. Ambac performs various review and validation procedures to quoted and modeled prices for fixed income securities, including price variance analyses, missing and static price reviews, overall valuation analyses by senior traders and finance managers and reviews associated with our ongoing impairment analysis. Unusual prices identified through these procedures will be evaluated further against separate broker quotes (if available) or internally modeled prices, and the pricing source values will be challenged as necessary. Price challenges generally result in the use of the pricing source’s quote as originally provided or as revised by the source following their internal diligence process. A price challenge may result in a determination by either the pricing source or Ambac management that the pricing source cannot provide a reasonable value for a security or cannot adequately support a quote, in which case Ambac would resort to using either other quotes or internal models. Results of price challenges are reviewed and approved by senior traders and finance managers. Valuation results, particularly those derived from valuation models and quotes on certain mortgage and asset-backed securities, could differ materially from amounts that would actually be realized in the market.

Ambac’s investments in fixed income securities (excluding VIE investments) classified as “available-for-sale” are carried at fair value, with the after-tax difference from amortized cost reflected in stockholders’ equity as a component of Accumulated Other Comprehensive Income (“AOCI”). One of the significant estimates related to available-for-sale securities is the evaluation of investments for other-than-temporary impairments. Under GAAP, if management assesses that it either (i) has the intent to sell its investment in a debt security or (ii) more likely than not will be required to sell the debt security before the anticipated recovery of its amortized cost basis less any current period credit loss, then an other-than-temporary impairment charge must be recognized in earnings, with the amortized cost of the security being written-down to fair value. If these conditions are not met, but it is determined that a credit loss exists, the impairment is separated into the amount related to the credit loss, which is recognized in earnings, and the amount related to all other factors, which is recognized in other comprehensive income. To determine whether a credit loss has occurred, management considers certain factors, including the length of time and extent to which the fair value of the security has been less than its amortized cost and downgrades of the security’s credit rating. If such factors indicate that a potential credit loss exists, management will compare the present value of estimated cash flows from the security to the amortized cost basis to assess whether the entire amortized cost basis will be recovered. When it is determined that all or a portion of the amortized cost basis will not be recovered, a credit impairment charge is recorded in earnings in the amount of the difference between the present value of cash flows and the amortized cost at the balance sheet date, with the amortized cost basis of the impaired security written-down to the present value of cash flows. Ambac estimates expected future cash flows from residential mortgage-backed securities using models and assumptions consistent with those used to project losses in the financial guarantee RMBS portfolio described above under “Critical Accounting Policies—Losses and Loss Expenses of Non-derivative Financial Guarantees.” Estimated cash flows are discounted at the effective interest rate implicit in the security at the date of acquisition or, for debt securities that are beneficial interests in securitized financial assets, at a rate equal to the current yield used to accrete the beneficial interest. For floating rate securities, estimated cash flows are projected using the relevant index rate forward curve and the discount rate is adjusted for changes in that curve. For debt securities for which other-than-temporary impairments were recognized in earnings, the difference

 

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between the new amortized cost basis and the cash flows expected to be collected are accreted as interest income over the expected remaining life of the security.

The evaluation of securities for impairment is a quantitative and qualitative process, which is subject to risks and uncertainties and is intended to determine whether, and to what extent, declines in the fair value of investments should be recognized in current period earnings. The risks and uncertainties include changes in general economic conditions, the issuer’s or guarantor’s financial condition and/or future prospects, the effects of regulatory actions on the investment portfolio, the performance of the underlying collateral, the effects of changes in interest rates or credit spreads and the expected recovery period. With respect to Ambac-wrapped securities guaranteed under policies that have been allocated to the Segregated Account, future cash flows used to measure credit impairment represents the sum of (i) the bond’s intrinsic cash flows and (ii) the estimated fair value of Ambac claim payments. The Segregated Account has been making interim cash payments in amounts equal to 25% of permitted Segregated Account policy claims since September 2012 (plus, in certain cases, Supplemental Payments as described in Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K). No final decision has been announced by the Rehabilitator with respect to effectuating or amending the Segregated Account Rehabilitation Plan (as defined in Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K). Possible modifications to the Segregated Account Rehabilitation Plan, or additional orders from the Rehabilitation Court, with respect to the form, amount and timing of satisfying permitted policy claims could have a material effect on the recognition of other-than-temporary impairment for, and the fair value of, Ambac-wrapped securities. See Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K for further information about the Segregated Account Rehabilitation Plan.

Ambac’s assessment of a decline in value reflects management’s current judgment regarding facts and circumstances specific to a security and the factors noted above. There is also significant judgment in determining whether Ambac intends to sell securities or will continue to have the ability to hold temporarily impaired securities until recovery. Future events could occur that were not reasonably foreseen at the time management rendered its judgment on the Company’s intent to sell or ability to hold securities until recovery. Examples of such events include, but are not limited to, the deterioration in the issuer’s or guarantor’s creditworthiness, a change in regulatory requirements or a major business combination or disposition. If management’s judgment with respect to these factors changes, Ambac may ultimately record a charge for other-than-temporary impairment in future periods.

VIE Assets and Liabilities

The financial assets and liabilities of VIEs consolidated under the Consolidation Topic of the ASC consist primarily of fixed income securities, loans receivable, derivative instruments and debt instruments and are generally carried at fair value with changes in fair value recognized in (Loss) income on variable interest entities of the Consolidated Statements of Total Comprehensive Income. These consolidated VIEs are primarily securitization entities which have liabilities and/or assets guaranteed by Ambac Assurance or Ambac UK. The fair values of VIE debt instruments are determined using the same methodologies used to value Ambac’s fixed income securities in its investment portfolio as described above.

VIE derivative instrument fair values are determined using valuation models. When specific derivative contractual terms are available and may be valued primarily by reference to interest rates, exchange rates and yield curves that are observable and regularly quoted, the derivatives are valued using vendor-developed models. Other derivatives within the VIEs that include significant unobservable valuation inputs are valued using internally developed models.

The fair value of VIE assets are obtained from market quotes when available. Typically the asset fair values are not readily available from market quotes and are estimated internally. The consolidated VIEs are securitization entities in which net cash flows from assets and derivatives (after adjusting for financial guarantor

 

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cash flows and other expenses) will be paid out to note holders or equity interests. Our valuation of VIE assets (fixed income securities or loans), therefore, are derived from the fair value of notes and derivatives, as described above, adjusted for the fair value of cash flows from Ambac’s financial guarantee. The fair value of financial guarantee cash flows include: (i) estimated future premiums discounted at a rate consistent with that implicit in the fair value of the VIE’s liabilities and (ii) internal estimates of future loss payments by Ambac discounted at a rate that includes Ambac’s own credit risk.

Derivatives

Ambac’s operating subsidiaries’ exposure to derivative instruments is created primarily through interest rate swaps, US Treasury futures contracts and credit default swaps. These contracts are accounted for at fair value under the Derivatives and Hedging Topic of the ASC. Valuation models are used for the derivatives portfolios, using market data from a variety of third-party data sources. Several of the more significant types of market data that influence fair value include interest rates, credit spreads, default probabilities, recovery rates, and pricing and credit ratings of referenced obligations for credit derivatives. The valuation of certain interest rate swaps, as well as all credit derivative contracts, also require the use of data inputs and assumptions that are determined by management and are not readily observable in the market, including the amount that Ambac’s own credit risk impacts the fair value of derivative liabilities. Refer to Note 10 to the Consolidated Financial Statements in Item 8 of this Form 10-K for further discussion of the models, model inputs and assumptions used to value derivative instruments. Due to the inherent uncertainties of the assumptions used in the valuation models to determine the fair value of derivative instruments, actual value realized in a market transaction may differ significantly from the estimates reflected in our financial statements.

Ambac’s credit derivative valuation model, like any financial model, has certain strengths and weaknesses. We believe our model’s primary strength is that it maximizes the use of market-driven inputs. Most importantly, the model uses market-based discount rates and fair values of the underlying reference obligations. Ambac employs a three-level hierarchy for obtaining reference obligation fair values used in the model as follows: (i) broker quotes on the reference obligation, (ii) prices and spreads from other transactions in the portfolio with similar asset, structure and credit attributes, and (iii) internal models comparable to those used for invested assets when quotes are unavailable. We believe using this type of approach is preferable to other models, which may emphasize modeled expected losses or which rely more heavily on the use of market indices that may not be reflective of the underlying reference obligation. Another strength is that our model is relatively easy to understand, which increases its transparency.

A potential weakness of our valuation model is our reliance on broker quotes obtained from dealers which originated the underlying transactions, who in certain cases may also be the counterparty to our CDS transaction. All of the transactions falling into this category are illiquid and it is usually difficult to obtain alternative quotes.

Ambac employs various procedures to corroborate the reasonableness of quotes received; including comparing to other quotes received on similarly structured transactions, observed spreads on structured products with comparable underlying assets and, on a selective basis when possible, values derived through internal estimates of discounted future cash flows. Each quarter, the portfolio of CDS transactions is reviewed to ensure every reference obligation price has been updated. Period to period valuations are compared for each CDS and by underlying bond type. For each CDS, this analysis includes comparisons of key valuation inputs to the prior period and against other CDS within the bond type. No adjustments were made to the broker quotes we received when determining fair value of CDS contracts as of December 31, 2013. Another potential weakness of our valuation model is the lack of new CDS transactions executed by financial guarantors, which makes it difficult to validate the percentage of the reference obligation spread which would be captured as a CDS fee at the valuation date (i.e. the relative change ratio). Changes to the relative change ratio based on internal ratings assigned are another potential weakness as internal ratings could differ from actual ratings provided by rating agencies. However, we believe our internal ratings are updated at least as frequently as the external ratings. We believe the

 

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approach we have developed to increase the relative change ratio as the underlying reference obligation experiences credit deterioration is consistent with a market-based approach to valuation. Ultimately, our approach exhibits the same weakness as other modeling approaches, as it is unclear if we could execute at these values.

Valuation of Deferred Tax Assets:

Our provision for taxes is based on our income, statutory tax rates and tax planning opportunities available to us in the jurisdictions in which we operate. Tax laws are complex and subject to different interpretations by the taxpayer and respective governmental taxing authorities. Significant judgment is required in determining our tax expense and in evaluating our tax positions. We review our tax positions quarterly and adjust the balances as new information becomes available. Deferred tax assets arise because of temporary differences between the financial reporting and tax bases of assets and liabilities, as well as from net operating loss and tax credit carry forwards. More specifically, deferred tax assets represent a future tax benefit (or receivable) that results from losses recorded under U.S. GAAP in a current period which are only deductible for tax purposes in future periods and net operating loss carry forwards. In accordance with the Income Taxes Topic of the ASC, we evaluate our deferred income taxes quarterly to determine if valuation allowances are required. This guidance requires that companies assess whether valuation allowances should be established against their deferred tax assets based on the consideration of all available evidence using a “more likely than not” standard. All available evidence, both positive and negative, needs to be identified and considered in making the determination with significant weight given to evidence that can be objectively verified. The level of deferred tax asset recognition is influenced by management’s assessment of future expected taxable income, which depends on the existence of sufficient taxable income of the appropriate character (ordinary vs. capital) within the carry back or carry forward periods available under the tax law. In the event that we determine that we would not be able to realize all or a portion of our deferred tax assets, we would record a valuation allowance against the deferred tax assets that we estimate will not ultimately be recoverable in the period in which that determination is made.

Goodwill:

At the Fresh Start Reporting Date, we revalued our assets and liabilities to current estimated fair value. The excess reorganization value which could not be attributed to the fair value of specific identified tangible and intangible assets was recorded as goodwill. Goodwill is subject to annual impairment testing. We test goodwill for impairment as of October 1 st of each year. Goodwill is also tested more frequently if indicators of impairment exist for each reporting unit. The Company has an option to first assess qualitative factors, in their totality, to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform a goodwill impairment test. If the Company determines that it is more likely than not that the fair value of a reporting unit is less than its carrying amount, then the Company is required to perform the goodwill impairment test. Factors we consider for determining whether an impairment test is necessary may include: i) macroeconomic conditions, ii) industry conditions, iii) operating cost factors, iv) company financial performance, v) changes in management, key personnel or strategy, vi) events affecting the composition or carrying amounts of net assets, and vii) a sustained decrease in Ambac’s share price. Alternatively, we may bypass this qualitative assessment and perform step one of the goodwill impairment test described below.

Goodwill impairment is determined using a two-step approach. In step one of the goodwill impairment test, the fair value of a reporting unit is compared with its carrying amount, including goodwill. If the fair value is in excess of the carrying amount, including goodwill, the reporting unit’s goodwill is considered not to be impaired. If the carrying amount, including goodwill, of a reporting unit exceeds its fair value, the second step of the goodwill impairment test is performed to measure the amount of impairment loss, if any. In step two of the goodwill impairment test, the implied fair value of a reporting unit’s goodwill is compared with the carrying amount of that goodwill. The implied fair value of goodwill is determined in the same manner as the amount of

 

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goodwill recognized in a business combination and is defined as the excess of the fair value of a reporting unit over the fair value of the net assets of a reporting unit. If the carrying amount of goodwill exceeds its implied fair value, an impairment loss is recognized for the excess. If the carrying amount of goodwill is less than its implied fair value, no goodwill impairment is recognized.

Goodwill impairment testing is performed at the reporting unit level. We have identified two reporting units of Ambac: (1) Financial Guarantee, which provides financial guarantees (including credit derivatives) for public finance, structured finance and other obligations; and (2) Financial Services, which provide investment agreements, funding conduits, and interest rate swaps, principally to clients of the financial guarantee business. These reporting units are also the sole operating segments which make up the Financial Guarantee and Financial Services reportable segments, respectively, that are disclosed in Note 19 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K. We have assigned assets and liabilities to each reporting unit based on specific identification. In evaluating which reporting units should be assigned goodwill, we considered the sources of Ambac’s estimated enterprise value at the Fresh Start Reporting Date as further described in Note 3 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K. Based on that analysis, we have assigned all goodwill recorded at the Fresh Start Reporting Date to the Financial Guarantee reporting unit.

For the 2013 annual assessment, we performed step one of the goodwill impairment test for the Financial Guarantee reporting unit. We estimated the fair value of the Financial Guarantee reporting unit using a market approach, which incorporated Ambac’s market capitalization, fair value estimates of noncontrolling interests, and an estimated control premium. After completing our annual impairment review for 2013, we concluded that goodwill is not impaired.

Additionally, as of December 31, 2013, the estimated fair value of the Financial Guarantee reporting unit significantly exceeded its carrying value at the date of testing and thus was not at risk of failing step one of the goodwill impairment test. We applied a hypothetical 10 percent decrease to the estimated fair value of the Financial Guarantee reporting unit which would not have triggered additional impairment testing and analysis.

RESULTS OF OPERATIONS

We follow the accounting prescribed by the Reorganizations Topic of the ASC from the period starting with Ambac’s bankruptcy filing through to our emergence from bankruptcy. Following the Company’s emergence from bankruptcy on May 1, 2013, the consolidated financial statements reflect the application of fresh start reporting (“Fresh Start”), incorporating, among other things, the discharge of debt obligations, issuance of new common stock, and fair value adjustments. The financial results of the Company for the periods from May 1, 2013 are referred to as “Successor” and the financial results for the periods through April 30, 2013 (“Fresh Start Reporting Date”) are referred to as “Predecessor.” The 2013 Successor Period and the 2013 Predecessor Period are distinct reporting periods. The effects of the reorganization and Fresh Start adjustments are recorded in Predecessor Ambac’s Consolidated Statement of Total Comprehensive Income for the period ended April 30, 2013. The effects of emergence and Fresh Start had a material impact on the comparability of our results of operations between these periods, as discussed below. However, certain references to 2013 results of operations combine the two periods when amounts are comparable to 2012 in order to enhance the analysis of such information. The significant Fresh Start items impacting comparability are as follows:

Investment Income : As required under Fresh Start, the amortized cost basis of Ambac’s fixed income securities were adjusted to fair value as of the Fresh Start Reporting Date. This resulted in an overall increase in the amortized cost of fixed income securities and offsetting decrease in Accumulated Other Comprehensive Income of $826.6 million. Premiums and discounts are amortized or accreted over the remaining term of the securities using the effective interest method. As a result of Fresh Start, the net unamortized discount in the portfolio decreased on the Fresh Start Reporting Date by the amount of the increase to amortized cost described

 

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above, which impacted the amount of premium amortization and discount accretion reflected in net investment income of Successor Ambac.

Interest Expenses : As required under Fresh Start, surplus notes issued by Ambac Assurance and the Segregated Account and the related accrued interest on such notes were adjusted to fair value as of the Fresh Start Reporting Date. This resulted in an overall increase in the carrying value of debt and accrued interest by $767.9 million. Discounts to the face value of debt are accreted through interest expense based on the projected cash flows of the instruments using the effective interest method. As a result of Fresh Start, the unamortized discounts on surplus notes have decreased and the future cash flows have been re-projected, both of which impacted the amount of discount accretion recognized in interest expense for Successor Ambac.

Operating Expenses—Deferred Acquisition Costs : As required under Fresh Start, deferred acquisition costs have been written off as of the Fresh Start Reporting Date and accordingly amortization of such costs will not be reflected in Successor Ambac’s net income.

Insurance Intangible Amortization : At the Fresh Start Reporting Date, an insurance intangible asset was recorded which represents the difference between the fair value and aggregate carrying value of the financial guarantee insurance and reinsurance assets and liabilities. The carrying value of our financial guarantee insurance and reinsurance contracts will continue to be reported and measured in accordance with existing accounting policies; these line items primarily comprise premiums receivable, reinsurance recoverable on paid and unpaid losses, unearned premiums, deferred ceded premium, subrogation recoverable, losses and loss expense reserve, and ceded premiums payable. Pursuant to the business combinations guidance for insurance entities in Financial Services—Insurance Topic of the ASC, the insurance intangible asset is amortized into expense on a basis consistent with the related financial guarantee insurance or reinsurance contracts.

Goodwill : Represents the excess of the reorganization value over the fair value of identified tangible and intangible assets of Successor Ambac. Goodwill will be assessed for impairment on an annual basis, and more frequently if certain indicators of impairment exist. Refer to Note 2 and Note 3 of the Consolidated Financial Statements located in Part I, Item 1 of this Form 10-K for a discussion on how goodwill was determined and for the factors that are considered in the impairment assessment process.

 

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A summary of our financial results for 2013 and 2012 is shown below:

 

     Successor Ambac –           Predecessor Ambac –  

Year-to-date information ($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
    Year Ended
December 31, 2012
 

Revenues:

          

Net premiums earned

   $ 213.5          $ 130.0      $ 414.6   

Net investment income

     146.4            116.7        382.9   

Net other-than-temporary impairment losses

     (46.8         (0.5     (6.0

Net realized investment gains

     4.5            53.3        72.1   

Change in fair value of credit derivatives

     192.9            (60.4     (9.2

Derivative product revenues

     114.8            (33.7     (125.0

Net realized losses on extinguishment of debt

     —             —         (177.6

Other income

     4.4            8.4        106.1   

Loss (income) on variable interest entities

     (48.6         426.6        27.8   

Expenses:

          

Loss and loss expenses

     (185.1         (38.1     683.6   

Insurance intangible amortization

     99.7            —         —    

Underwriting and operating expenses

     68.8            44.6        139.0   

Interest expense

     84.9            31.0        112.3   

Reorganization items

     0.5            (2,745.2     7.2   

Provision for income taxes

     7.5            0.8        2.9   

Less: Net loss attributable to the Noncontrolling interest

     (0.4         (1.7     (2.6
  

 

 

       

 

 

   

 

 

 

Net income (attributable to common shareholders)

   $ 505.2          $ 3,349.0      $ (256.7
  

 

 

       

 

 

   

 

 

 

The following paragraphs describe the consolidated results of operations of Ambac and subsidiaries for 2013 and 2012 and its financial condition as of December 31, 2013 and 2012.

Net Premiums Earned : Net premiums earned primarily represents the amortization into income of collected insurance premiums. We present accelerated premiums, which result from calls and other accelerations of insured obligations separate from other net premiums earned, herein referred to as normal net premiums earned. Ambac recognizes negative accelerations on policies when the GAAP premiums receivable for the policy exceeds the policy’s unearned premium reserve at termination. Normal net premiums earned have been negatively impacted by the runoff of the insured portfolio via transaction terminations, calls, pre-refundings and scheduled maturities.

As noted above, as a result of Fresh Start, insurance and reinsurance assets and liabilities are measured using the same accounting policies for both Successor and Predecessor periods. Net premiums earned for the year ended December 31, 2013 decreased by $71.1 million as compared to net premiums earned for the year ended December 31, 2012 of $414.6 million. Net premiums earned were affected by changes in the collectability of certain premium receivables. These changes resulted in a decrease in net premiums earned of $13.9 million, $0.6 million, and $25.9 million for the eight months ended December 31, 2013, the four months ended April 30, 2013 and the year ended December 31, 2012, respectively. Normal net premiums earned and accelerated premiums are

 

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reconciled to total net premiums earned in the table below and are included in the Financial Guarantee segment. The following table provides a breakdown of net premiums earned by market sector:

 

     Successor Ambac –           Predecessor Ambac –  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
     Year Ended 
December 31, 2012
 

Public Finance

   $ 86.6          $ 47.9       $ 153.0   

Structured Finance

     20.0            20.3         49.9   

International Finance

     50.4            25.4         84.1   
  

 

 

       

 

 

    

 

 

 

Total normal premiums earned

     157.0            93.6         287.0   

Accelerated earnings

     56.5            36.4         127.6   
  

 

 

       

 

 

    

 

 

 

Total net premiums earned

   $ 213.5          $ 130.0       $ 414.6   
  

 

 

       

 

 

    

 

 

 

The following table provides a breakdown of accelerated earnings by market sector:

 

     Successor Ambac –           Predecessor Ambac –  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
     Year Ended 
December 31, 2012
 

Public Finance

   $ 54.7          $ 32.6       $ 116.6   

Structured Finance

     3.8            3.8         (4.2

International Finance

     (2.0         —          15.2   
  

 

 

       

 

 

    

 

 

 

Total accelerated earnings

   $ 56.5          $ 36.4       $ 127.6   
  

 

 

       

 

 

    

 

 

 

Net Investment Income : As noted above, as a result of Fresh Start, the amount of premium amortization and discount accretion reflected in net investment income for Successor Ambac have been impacted by the resetting of the amortized cost basis for fixed income securities to fair value at the Fresh Start Reporting Date. Fresh Start adjustments increased the overall amortized cost basis and decreased the effective yield of the portfolio for Successor Ambac. The following table provides details of net investment income by segment for the periods presented:

 

     Successor Ambac –           Predecessor Ambac –  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
     Year Ended 
December 31, 2012
 

Financial Guarantee

   $ 145.2          $ 115.1       $ 365.9   

Financial Services

     1.1            1.6         16.8   

Corporate

     0.1            —          0.2   
  

 

 

       

 

 

    

 

 

 

Total net investment income

   $ 146.4          $ 116.7       $ 382.9   
  

 

 

       

 

 

    

 

 

 

For the Successor Ambac period from May 1 through December 31, 2013, Financial Guarantee net investment income generally reflects recent market yields for securities in the portfolio, given that the amortized cost bases of securities were reset to fair value at the Fresh Start Reporting Date. Portfolio yields for Predecessor Ambac in 2013 benefitted from the continued shift toward higher yielding assets, including Ambac-wrapped securities purchased as part of the company’s loss remediation strategy. The average invested asset base for Predecessor Ambac in 2013 was lower than for 2012 as receipts of installment premiums and investment receipts were more than offset by the resumption of partial claim payments on Segregated Account policies, payments made to commute certain financial guarantee exposures and the repurchase of surplus notes in the second quarter of 2012.

 

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Financial Services investment income continues to decline, driven primarily by a smaller portfolio of investments in the investment agreement business. The investment portfolio continues to decrease as investment agreements runoff, or when intercompany loans from Ambac Assurance are repaid.

Corporate investment income relates to the investments from Ambac’s investment portfolio.

Net Other-Than-Temporary Impairment Losses : Net other-than-temporary impairment losses recorded in earnings include only the credit related impairment amounts to the extent management does not intend to sell and it is not more likely than not that the Company will be required to sell before recovery of the amortized cost basis. Non-credit related impairment amounts are recorded in other comprehensive income. Alternatively, the non-credit related impairment is reported through earnings as part of net other-than- temporary impairment losses if management intends to sell the securities or it is more likely than not that the Company will be required to sell before recovery of amortized cost less any current period credit impairment.

Successor Ambac’s net other-than-temporary impairments generally relate to the company’s intent to sell certain securities that are in an unrealized loss position as of December 31, 2013, in connection with portfolio rebalancing. Future changes to the company’s investment strategy or estimated liquidity needs could result in a determination that the company intends to sell additional securities that are in an unrealized loss position as of December 31, 2013, or no longer has the ability to hold such securities, which could result in additional other-than-temporary impairment charges. Net other-than-temporary impairments for 2012 resulted primarily from adverse changes to projected cash flows on Ambac-wrapped securities and from credit impairments on certain other non-agency RMBS securities. Since commencement of the Segregated Account Rehabilitation Proceedings, changes in the estimated effective date of the Segregated Account Rehabilitation Plan and the resumption of claim payments with respect to Segregated Account policies have periodically resulted in adverse changes in projected cash flows on certain impaired Ambac-wrapped securities.

Net Realized Investment (Losses) Gains : The following table provides a breakdown of net realized (losses) gains on investments for the periods presented:

 

($ in millions)

   Financial
Guarantee
    Financial
Services
     Corporate      Total  

Successor Ambac —Eight Months Ended December 31, 2013:

          

Net gains on securities sold or called

   $ 10.9      $ 1.7       $  —        $ 12.6   

Foreign exchange (losses)

     (8.1     —          —          (8.1
  

 

 

   

 

 

    

 

 

    

 

 

 

Total net realized gains

   $ 2.8      $ 1.7       $  —        $ 4.5   
  

 

 

   

 

 

    

 

 

    

 

 

 

Predecessor Ambac —Four Months Ended April 30, 2013:

          

Net gains on securities sold or called

   $ 7.2      $ 39.9       $  —        $ 47.1   

Foreign exchange gains

     6.2        —          —          6.2   
  

 

 

   

 

 

    

 

 

    

 

 

 

Total net realized gains

   $ 13.4      $ 39.9       $  —        $ 53.3   
  

 

 

   

 

 

    

 

 

    

 

 

 

Predecessor Ambac —Year Ended December 31, 2012:

          

Net gains on securities sold or called

   $ 45.1      $ 27.1       $  —        $ 72.2   

Foreign exchange (losses)

     (0.1     —          —          (0.1
  

 

 

   

 

 

    

 

 

    

 

 

 

Total net realized gains

   $ 45.0      $ 27.1       $  —        $ 72.1   
  

 

 

   

 

 

    

 

 

    

 

 

 

The net gains during the four months ended April 30, 2013 within the Financial Services portfolio are primarily the result of recoveries from the settlement of litigation associated with investment securities that were written-off in 2002 and 2003. No significant future recoveries on these securities are expected.

 

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Change in Fair Value of Credit Derivatives: The fair value of credit derivatives were not impacted by the adoption of Fresh Start. The valuation of credit derivative liabilities is impacted by the market’s view of Ambac Assurance’s credit quality. We reflect Ambac’s own credit quality in the fair value of such liabilities by including a credit valuation adjustment (“CVA”) in the determination of fair value. For the year ended December 31, 2013, the gain from change in fair value of credit derivatives increased by $141.7 million compared to the loss reported for the year ended December 31, 2012 of $9.2 million. The change in fair value of credit derivatives for each of the periods presented included improvement in reference obligation prices, gains associated with runoff of the portfolio and credit derivative fees earned, net of the impact of incorporating the Ambac CVA. The net gain of $192.9 million for the eight months ended December 31, 2013 primarily reflected contract terminations resulting in the reversal of unrealized mark-to-market losses. The discount rates used to determine the Ambac CVA did not change significantly during that period. The net losses of $60.4 million for the four months ended April 30, 2013 and $9.2 million for the year ended December 31, 2012 were the result of declines in the Ambac CVA discount rates during the periods, which more than offset underlying gains from reference obligation runoff and price improvements. The discount rate used to determine the CVA at the end of each period are based on the observed fair value of Ambac Assurance’s direct and guaranteed obligations. Reductions to the amount of CVA included in the reported fair value liability of credit derivatives contributed losses within the overall change in fair value of credit derivative liabilities of $61.4 million and $160.9 million for the eight months ended December 31, 2013 and four months ended April 30, 2013, respectively. Reductions to the amount of CVA contributed losses within the overall change in fair value of credit derivative liabilities of $311.3 million for the year ended December 31, 2012.

Realized gains and other settlements on credit derivative contracts represent premiums received and accrued on such contracts. Realized gains and other settlements for the year ended December 31, 2013 declined by $0.5 million compared to gains of $13.7 million for the year ended December 31, 2012. Included in results for the eight months ended December 31, 2013 were fees received of $5.6 million associated with terminated transactions. Excluding the impact of these termination fees, the declines over time are due to reduced premium receipts resulting from continued runoff of the credit derivative portfolio. There were no loss or settlement payments in the periods presented.

Unrealized gains (losses) on credit derivative contracts reflect the impact of all other factors on the overall change in fair value of credit derivatives noted above. See Note 10 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for a further description of Ambac’s methodology for determining the fair value of credit derivatives. The table below indicates the impact of incorporating Ambac’s own credit risk into the fair value of credit derivatives as of December 31, 2013 and December 31, 2012:

 

($ in millions)

   Successor Ambac –
December 31, 2013
          Predecessor Ambac –
December 31, 2012
 

Mark-to-market liability of credit derivatives, excluding CVA

   $ 133.3          $ 474.8   

CVA on credit derivatives

     (39.0         (261.2
  

 

 

       

 

 

 

Net credit derivative liability at fair value

   $ 94.3          $ 213.6   
  

 

 

       

 

 

 

Derivative Product Revenues : Derivative product revenues were not impacted by the adoption of Fresh Start. The derivative products portfolio is positioned to benefit from rising rates as an economic hedge against interest rate exposure in the financial guarantee portfolio. Derivative product revenues for the year ended December 31, 2013 increased by $206.0 million compared to losses reported for the year ended December 31, 2012 of $125.0 million. Net gains of $114.8 million were reported in derivative product revenues for the eight months ended December 31, 2013, resulting from the impact of rising interest rates on the fair value of the derivate products portfolio. The net loss for the four months ended April 30, 2013 was driven by decreases in the discount rate used to determine the Ambac CVA as further described below. The net loss for the year ended

 

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December 31, 2012 primarily resulted from the adverse impact on the portfolio from declining interest rates and decreases in the CVA. Additionally, 2012 included a realized loss related to the negotiated termination of a derivative asset.

The fair value of derivatives includes a valuation adjustment to reflect Ambac’s own credit risk when appropriate. Within the financial services derivatives portfolio, an Ambac CVA is generally applicable for uncollateralized derivative liabilities that may not be offset by derivative assets under a master netting agreement. Inclusion of an Ambac CVA in the valuation of financial services derivatives resulted in gains (losses) within derivative products revenues of ($46.8) million and ($26.7) million for the eight months ended December 31, 2013 and four months ended April 30, 2013, respectively; compared to ($44.9) million for the year ended December 31, 2012. The impact of changes to the CVA reflects the market’s view of Ambac Assurance’s credit quality as well as the amount of underlying liabilities, which generally decline as interest rates increase. The amount of Ambac CVA included in the fair value of derivatives decreased from December 31, 2012 to December 31, 2013 as a result of both an improved market view of Ambac Assurance credit and reduction in the amount of underlying liabilities. The table below indicates the impact of incorporating Ambac’s own credit risk into the fair value of the derivative products portfolio (excluding credit derivatives) as of December 31, 2013 and December 31, 2012:

 

($ in millions)

   Successor Ambac –
December 31, 2013
          Predecessor Ambac –
December 31, 2012
 

Derivative products mark-to-market liability, excluding CVA

   $ 130.3          $ 313.5   

CVA on derivative products portfolio

     (48.4         (121.9
  

 

 

       

 

 

 

Net derivative products portfolio liability at fair value

   $ 81.9          $ 191.6   
  

 

 

       

 

 

 

Net Realized Losses on Extinguishment of Debt: During June 2012, Ambac Assurance exercised options to repurchase surplus notes with an aggregate par value of $789.2 million for an aggregate cash payment of $188.4 million. These surplus notes were issued in connection with the settlement of credit derivative liabilities in 2010 and were recorded at their fair value at the date of issuance. This fair value was at a significant discount to par value with the discount accreting through interest expense using the effective interest method. As described further under “Other Income” below, certain of these options were free-standing derivatives for accounting purposes and were carried at fair value as assets on the Consolidated Balance Sheets. The carrying value of extinguished surplus notes and accrued interest less the fair value of the free-standing derivatives were below the call option exercise prices and, accordingly, for the year ended December 31, 2012, Ambac recognized a realized loss of $177.7 million.

Net realized losses on extinguishment of debt also included gains from settlement of investment agreements below their carrying value of $0.1 million for the year ended December 31, 2012.

Other Income : Other income was not impacted by the adoption of Fresh Start. Other income is primarily comprised of non-investment related foreign exchange gains and losses, deal structuring, commitment, consent and waiver fees. For the year ended December 31, 2012, Other income also included mark-to-market gains relating to options to call certain Ambac Assurance surplus notes. Other income for the year ended December 31, 2013 decreased by $93.4 million compared to gains reported for the year ended December 31, 2012 of $106.1 million. Other income for 2013 primarily resulted from foreign exchange losses, offset by consent and waiver fees. Other income for the year ended December 31, 2012 primarily resulted from: mark-to-market gains of $100.7 million related to Ambac’s option to call $500 million par of bank surplus notes which were free-standing derivatives for accounting purposes. Such options were exercised in June 2012. Changes in fair value of these options through the date of exercise are reported within Other income.

 

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(Loss) Income on Variable Interest Entities : (Loss) income on variable interest entities was not significantly impacted by the adoption of Fresh Start. Refer to Note 3 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for information on the impact of Fresh Start on Variable Interest Entities. Included within (Loss) income on variable interest entities are income statement amounts relating to VIEs consolidated under the Consolidation Topic of the ASC, including gains or losses attributable to consolidating or deconsolidating VIEs during the period reported. Generally, the Company’s consolidated VIEs are entities for which Ambac provides financial guarantees on its assets or liabilities. In consolidation, most assets and liabilities of the VIEs are reported at fair value and the related insurance assets and liabilities are eliminated. However, the amount of VIE net assets (liabilities) that remain in consolidation generally result from the net positive (negative) present value of projected cash flows from (to) the VIEs which is attributable to Ambac’s insurance subsidiaries in the form of financial guarantee insurance premiums and fees and losses. In the case of VIEs with net negative projected cash flows, the net liability is generally to be funded by Ambac’s insurance subsidiaries through insurance claim payments. Differences between the net carrying value of the insurance accounts under the Financial Services—Insurance Topic of the ASC and the carrying value of the consolidated VIE’s net assets or liabilities are recorded through income at the time of consolidation or deconsolidation.

(Loss) income on variable interest entities increased $350.2 million for the year ended December 31, 2013 from income of $27.8 million for the year ended December 31, 2012. Results for the 2013 periods are driven primarily by the consolidation and subsequent results from a VIE related to an adversely classified financial guarantee transaction. Ambac Assurance guarantees certain note liabilities of the VIE and had established loss reserves associated with those guarantees prior to the event of default which triggered consolidation of the entity on April 30, 2013. The VIE contained primarily non-financial intangible assets which were carried at amortized cost subsequent to the consolidation date, while its note liabilities were carried at fair value with changes in value reported through earnings. (Loss) income on variable interest entities for the four months ended April 30, 2013 includes the consolidation gain of $385.3 million of this VIE, representing the difference between net assets of the VIE at fair value as of the consolidation date and the previous carrying value of Ambac’s associated net insurance liabilities. The loss for the eight month period ended December 31, 2013 primarily reflects the $83.4 million reduction of certain intangible assets held by this VIE as a result of management’s plans to sell such assets. The reduction was required to adjust the intangible asset to its fair value less costs to sell. The eight months ended December 31, 2013 also includes a loss of $15.3 million associated with the deconsolidation of a separate VIE. Additionally, the four months ended April 30, 2013 included gains associated with longer estimated lives of certain transactions and the resultant increase in projected positive net cash flows from the VIEs to Ambac in the form of financial guarantee premiums. Income on variable interest entities for 2012 resulted from positive changes to the fair value primarily attributable to accretion of the present value discount of net VIE assets into income. Refer to Note 4 to the Consolidated Financial Statements included in Part II, Item 8 of this Form 10-K for further information on the accounting for VIEs.

Losses and Loss Expenses : Losses and loss expenses are based upon estimates of the aggregate losses inherent in the non-derivative financial guarantee portfolio for insurance policies issued to beneficiaries, including unconsolidated VIEs. As noted above, as a result of Fresh Start, insurance and reinsurance assets and liabilities are measured using the same accounting policies for both Successor and Predecessor periods. Losses and loss expenses for the year ended December 31, 2013 decreased $906.8 million from an incurred amount of

 

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$683.6 million for the year ended December 31, 2012. The following provides details for losses incurred for the periods presented:

 

     Successor Ambac           Predecessor Ambac  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
    Year Ended
December 31, 2012
 

RMBS

   $ (127.5       $ (241.1   $ 6.5   

Student Loans

     (90.8         35.4        (65.9

Domestic Public Finance

     100.4            45.6        185.5   

AUK

     (83.4         88.8        154.7   

All other credits

     8.7            23.1        319.7   

Loss Expenses

     7.5            10.1        83.1   
  

 

 

       

 

 

   

 

 

 

Totals

   $ (185.1       $ (38.1   $ 683.6   
  

 

 

       

 

 

   

 

 

 

Please refer to the “Balance Sheet” section of this Management’s Discussion and Analysis of Financial Condition and Results of Operations and Loss Reserves section located in Note 8 of the Consolidated Financial Statements located in Item 8 of this Form 10-K for further background information on loss reserves and on the change in estimated recoveries.

The following table provides details of net claims recorded, net of reinsurance for the affected periods:

 

     Successor Ambac           Predecessor Ambac  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
    Year Ended
December 31, 2012
 

Claims recorded (1)

   $ 441.5          $ 403.4      $ 1,774.6   

Subrogation Received

     (292.0         (160.4     (222.2
  

 

 

       

 

 

   

 

 

 

Net Claims Recorded

   $ 149.5          $ 243.0      $ 1,552.4   
  

 

 

       

 

 

   

 

 

 

 

(1) Claims recorded include (i) claims paid and (ii) changes to claims presented and unpresented through the balance sheet date for policies which were allocated to the Segregated Account. Item (ii) includes permitted policy claims for policies allocated to the Segregated Account that were presented but not paid through to the balance sheet date and approved by the Rehabilitator of the Segregated Account in accordance with the Policy Claim Rules as discussed in Note 1 in Part II, Item 8 of this Form 10-K. Amounts recorded for claims not yet presented and/or permitted are based on management’s judgment.

As of December 31, 2013 and December 31, 2012, respectively, $3,904.3 million and $3,388.1 million of Segregated Account claims remain unpaid.

Underwriting and Operating Expenses : Underwriting and operating expenses consist of gross operating expenses plus the amortization of previously deferred insurance acquisition costs. The amortization of previously deferred underwriting expenses is included in Financial Guarantee segment results. As noted above, all deferred

 

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acquisition costs were written of in Fresh Start and accordingly no amortization is reported in Successor Ambac. The following table provides details of underwriting and operating expenses for the periods presented:

 

     Successor Ambac –           Predecessor Ambac –  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
     Year Ended
December 31, 2012
 

Underwriting and operating:

           

Gross Operating Expenses

   $ 67.3          $ 37.8       $ 108.9   

Reinsurance commissions, net

     1.5            0.3         4.6   

Amortization of deferred acquisition costs

     —             6.5         25.5   
  

 

 

       

 

 

    

 

 

 

Total

   $ 68.8          $ 44.6       $ 139.0   
  

 

 

       

 

 

    

 

 

 

Gross operating expenses for the year ended December 31, 2013 decreased by $25.7 million compared to gross operating expenses reported for the year ended December 31, 2012 of $139.0 million. The decrease was primarily due to the write off of deferred acquisition costs and lower consulting, insurance and legal expenses.

As a consequence of the Segregated Account Rehabilitation Proceedings, the Rehabilitator retains operational control and decision-making authority with respect to all matters related to the Segregated Account, including the hiring of advisors. Expenses incurred in connection with legal and consulting services provided for the benefit of OCI amounted to $6.4 million and $3.3 million for the eight months ended December 31, 2013 and four months ended April 30, 2013, respectively as compared to $11.7 million for the year ended December 31, 2012, respectively. Future expenses may include a significant amount of advisory costs for the benefit of OCI that are outside the control of Ambac’s management.

Interest Expense : Interest expense includes accrued interest and accretion of the discount on surplus notes issued by Ambac Assurance and the Segregated Account, interest expense relating to investment agreements and interest expense related to a secured borrowing transaction. As noted above, as a result of Fresh Start, the unamortized discounts on surplus notes have decreased by resetting the carrying value to fair value at the Fresh Start Reporting Date and future cash flows on the surplus notes have been re-projected. Both of these items have impacted the amount of discount accretion recognized in interest expense for Successor Ambac. Accretion of surplus note discounts included within overall interest expense was $32.9 million and $5.1 million for the eight months ended December 31, 2013 and four months ended April 30, 2013, respectively, as compared to $13.4 million for the year ended December 31, 2012. The following table provides details by type of obligation for the periods presented:

 

     Successor Ambac –           Predecessor Ambac –  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
     Year Ended
December 31, 2012
 

Interest expense:

           

Surplus notes

   $ 83.5          $ 29.5       $ 103.6   

Investment agreements

     1.3            1.3         6.3   

Secured borrowing

     0.1            0.2         2.4   
  

 

 

       

 

 

    

 

 

 

Total

   $ 84.9          $ 31.0       $ 112.3   
  

 

 

       

 

 

    

 

 

 

In June 2012, Ambac exercised options to repurchase $789.2 million of surplus notes for $188.4 million. These repurchases resulted in a lower outstanding amount of surplus notes since June 2012, impacting interest expense. Surplus note interest payments require the approval of OCI. During each of the last three years, OCI disapproved the requests of Ambac Assurance and the Rehabilitator of the Segregated Account, acting for and on

 

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behalf of the Segregated Account, to pay interest on all outstanding surplus notes issued by Ambac and the Segregated Account on their respective scheduled interest payment dates. Such interest was accrued for and the Company is accruing interest on these additional amounts following each scheduled interest payment date.

Reorganization Items : Reorganization items are primarily expenses directly attributed to our Chapter 11 reorganization process. The following table presents reorganization items for all periods presented:

 

     Successor Ambac –           Predecessor Ambac –  

($ in millions)

   Eight Months Ended
December 31, 2013
          Four Months Ended
April 30, 2013
    Year Ended
December 31, 2012
 

Reorganization items:

          

Professional advisory fees

   $ 0.5          $ 4.5      $ 7.5   

Fresh Start Adjustments

     —             (2,749.7     (0.3
  

 

 

       

 

 

   

 

 

 

Total

   $ 0.5          ($ 2,745.2   $ 7.2   
  

 

 

       

 

 

   

 

 

 

Provision for Income Taxes ; The provision for income taxes was not impacted by the adoption of Fresh Start. The provision for income taxes for the year ended December 31, 2013 increased by $5.4 million compared to the provision for income taxes reported for the year ended December 31, 2012 of $2.8 million. For the year ended December 31, 2012, and the four months ended April 30, 2013, income tax expense was related predominantly to pre-tax profits in Ambac UK’s Italian branch, which cannot be offset by losses in other jurisdictions. The income tax for the four months ended April 30, 2013 also included a provision for New York State/New York City alternative minimum tax (“AMT”) obligations. For the eight months ended December 31, 2013 income tax was predominantly related to federal AMT resulting from current year AMT income being limited to a 90% offset against Ambac’s AMT NOL carryforward. .

LIQUIDITY AND CAPITAL RESOURCES

Ambac Financial Group, Inc. Liquidity . Ambac’s liquidity is dependent on its current cash and investments of $36.5 million at December 31, 2013, as well as expense sharing and other arrangements with Ambac Assurance as described below. Pursuant to the Mediation Agreement, Amended TSA and Cost Allocation Agreement (as each such term is defined in Note 1 in Part II, Item 8 of this Form 10-K), Ambac Assurance is required, under certain circumstances, to make payments to the Company with respect to the utilization of net operating loss carry-forwards (“NOLs”) and to reimburse certain costs and expenses. Any expected receipts with regards to the utilization of NOLs will only occur after Ambac Assurance utilizes NOLs generated after September 30, 2011, which amount to approximately $270.3 million as of December 31, 2013. Such NOLs decreased in 2013 as a result taxable income generated by Ambac Assurance’s subsidiaries partially offset by statutory losses as described above in Ambac Assurance’s Statutory Basis Financial Results. It is also uncertain whether and to what extent Ambac will realize value from the Junior Surplus Note issued by the Segregated Account. See Note 1 in Part II, Item 8 of this Form 10-K for descriptions of the Mediation Agreement, the Amended TSA, the Cost Allocation Agreement and the Junior Surplus Note. It is highly unlikely that Ambac Assurance will be able to make dividend payments to Ambac for the foreseeable future and therefore the aforementioned reimbursements will be Ambac’s principal source of funds in the near term. Refer to Part I, Item 1, “Insurance Regulatory Matters – Dividend Restrictions, Including Contractual Restrictions” and Note 9 to the Consolidated Financial Statements located in Part II, Item 8, for more information on dividend payment restrictions. The principal use of liquidity is the payment of operating expenses. Contingencies could cause material liquidity strains. In 2013, Ambac paid approximately $19.4 million in professional advisory fees, which represents the balance due for services performed while Ambac was in bankruptcy proceedings.

The following table includes aggregated information about contractual obligations for Ambac and its subsidiaries, excluding variable interest entities consolidated as a result of Ambac Assurance’s financial

 

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guarantee contracts. These obligations include payments due under specified contractual obligations, aggregated by type of contractual obligation, including claim payments, principal and interest payments under Ambac Assurance’s and Ambac Assurance Segregated Account’s surplus notes, investment agreement obligations, and payments due under operating leases. The table and commentary below reflect scheduled payments and maturities based on the original payment terms specified in the underlying agreements and contracts, or expected required payment dates if earlier.

 

     Contractual Obligations by Year  

($ in millions)

   2014     2015      2016      2017      2018      Thereafter  

Surplus note obligations (1)

   $ 330.0      $ 64.5       $ 64.5       $ 64.5       $ 64.5       $ 1,436.7   

Investment agreement obligations (2)

     1.1        52.6         194.0         125.5         —           —     

Operating lease obligations (3)

     5.5        5.4         —           —           —           —     

Purchase obligations (4)

     5.0        1.7         0.6         —           —           —    

Post retirement benefits (5)

     0.3        0.3         0.3         0.3         0.4         2.1   

Loss and loss expenses (6)

     4,554.6        532.3         395.3         308.6         161.8         4,952.4   

Income Taxes

     (0.0     —          —          —          —          —     
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 4,896.5      $ 656.8       $ 654.7       $ 498.9       $ 226.7       $ 6,391.2   
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Includes principal of and interest on surplus notes when due. All payments of principal and interest on Surplus Notes are subject to the prior approval of the OCI. If the OCI does not approve the payment of interest on the surplus notes, such interest will accrue and compound annually until paid. OCI disapproved scheduled interest payments for June 7, 2011, 2012 and 2013. Amounts in the table assume approval by OCI for all principal and interest payments in the future, including payment of previously deferred interest on the next scheduled payment date of June 7, 2014.
(2) Includes principal of and interest on obligations using current rates for floating rate obligations. Certain investment agreements have contractual provisions that allow our counterparty the flexibility to withdraw funds prior to legal maturity date. Amounts included in the table are based on the expected withdrawal date.
(3) Amount represents future lease payments on lease agreements existing as of December 31, 2013. Ambac Assurance UK Limited has the option to break their existing lease in 2016 following a rent review process. Future lease payments in the above table reflect this lease for the period until the option date.
(4) Purchase obligations represent future expenditures for contractually scheduled fixed terms and amounts due for various technology-related maintenance agreements and other outside services.
(5) Amount represents future benefit payments on the Ambac Assurance postretirement benefit plan for current retirees over the next 10 years.

 

(6)

The timing of expected claim payments is based on deal specific cash flows, excluding expected recoveries. These deal specific cash flows are based on the expected cash flows of the underlying transactions (e.g. for RMBS credits we model estimated future claim payments). The timing of expected claim payments for credits with reserves that were established using our statistical loss reserve method is determined based on the weighted average expected life of the exposure. Refer to the Loss Reserves section located in Note 2 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K for further discussion of our statistical loss reserve method. The timing of these payments may vary significantly from the amounts shown above, especially for credits that are based on our statistical loss reserve method. Pursuant to the injunctions issued by the Rehabilitation Court, claims on policies allocated to the Segregated Account were not paid from the commencement of the Segregated Account Rehabilitation Proceedings until the third quarter of 2012. As further described in Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K, on or about September 20, 2012, in accordance with published Policy Claim Rules, the Segregated Account commenced paying 25% of each permitted policy claim that arose since the commencement of the Segregated Account Rehabilitation Proceedings. The Segregated Account will continue to make cash payments of 25% of each policy claim submitted and permitted in accordance with

 

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  such Policy Claim Rules (plus, in certain cases, Supplemental Payments as described in Note 1), subject to any further orders of the Rehabilitation Court. As further described in Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K, no decision has been announced with respect to effectuating or amending the Segregated Account Rehabilitation Plan or whether surplus notes will be issued with respect to the remaining balance of unpaid claims as provided in the Segregated Account Rehabilitation Plan, although the Rehabilitator may seek to amend the Segregated Account Rehabilitation Plan to provide for interest bearing Deferred Amounts (as defined below) to be established, rather than surplus notes to be issued, with respect to the unpaid portion of permitted policy claims as described in Note 1. As further described in Note 1, the Rehabilitator may also adjust payments on unpaid permitted policy claims relating to Undercollateralized Bonds. Possible modifications to the Segregated Account Rehabilitation Plan with respect to the form and timing of satisfying the remaining balance of unpaid claims could have a material effect on Ambac Assurance liquidity. The Rehabilitator has previously announced that more specific information regarding the status of the Segregated Account Rehabilitation Plan, including possible modifications, will be provided as soon as appropriate. Unpaid claims include deferred policy claims of $3,904.3 million at December 31, 2013. Although the Rehabilitator has not established an effective date for the Rehabilitation Plan, we have included such unpaid amounts as obligations due in 2014. Additionally, all future claim payments are included in their respective year at the estimated permitted claim amount.

Ambac Assurance Liquidity . Ambac Assurance’s liquidity is dependent on the balance of liquid investments and, over time, the net impact of sources and uses of funds. The principal sources of Ambac Assurance’s liquidity are gross installment premiums on insurance and credit default swap contracts, principal and interest payments from investments, sales of investments, proceeds from repayment of affiliate loans, recoveries on claim payments or other losses and reinsurance recoveries. Termination of installment premium policies on an accelerated basis may adversely impact Ambac Assurance’s liquidity. The principal uses of Ambac Assurance’s liquidity are the payment of operating expenses, claim and commutation payments on both insurance and credit derivative contracts, ceded reinsurance premiums, surplus note principal and interest payments, and additional loans to affiliates. Interest and principal payments on surplus notes are subject to the approval of OCI, which has full discretion over deferral of payments regardless of the liquidity position of Ambac Assurance. The level of claims paid by the Segregated Account is subject to the sole discretion of the Rehabilitator, subject to any required approval of the Rehabilitation Court.

Ambac Assurance manages its liquidity risk by maintaining a comprehensive analysis of projected cash flows. Additionally, the financial guarantee business maintains a specified level of cash and short-term investments at all times.

Pursuant to the injunctions issued by the Rehabilitation Court, claims on policies allocated to the Segregated Account were not paid from the commencement of the Segregated Account Rehabilitation Proceedings until the third quarter of 2012. As further described in Note 1 in Part II, Item 8 of this Form 10-K, on or about September 20, 2012, in accordance with published Policy Claim Rules, the Segregated Account commenced paying 25% of each permitted policy claim that arose since the commencement of the Segregated Account Rehabilitation Proceedings. The Segregated Account will continue to make cash payments of 25% of each policy claim submitted and permitted in accordance with such Policy Claim Rules, subject to any further orders of the Rehabilitation Court. As described in Note 1, the Rehabilitator has sought and received approval from the Rehabilitation Court to make Supplemental Payments with respect to certain insured securities. As further described in Note 1, the Rehabilitator may also adjust payments on unpaid permitted policy claims relating to Undercollateralized Bonds. During the year ended December 31, 2013, the Segregated Account made total cash payments of $321.7 million related to permitted policy claims and commutations. Policy claims, including unpaid claims of the Segregated Account, and principal and interest on Surplus Notes and, if established, Deferred Amounts will be material uses of future liquidity.

 

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In September 2013, the Rehabilitator submitted a request for rulings from the United States Internal Revenue Service (“IRS”) as to certain tax issues associated with potential amendments to the Segregated Account Rehabilitation Plan. Pursuant to such amendments, surplus notes would not be issued with respect to the unpaid balance of permitted policy claims, but such balance would be recorded by the Segregated Account as outstanding policy obligations which would accrue interest from the first date on which a portion of such permitted policy claim is or was paid until such outstanding policy obligations are paid (any such outstanding policy obligation, including accrued interest thereon, as such obligation may be adjusted from time to time in accordance with the Segregated Account Rehabilitation Plan, guidelines or rules issued by the Rehabilitator and/or orders of the Rehabilitation Court, a “Deferred Amount”). The amendments would likely provide that interest on the unpaid portion of permitted policy claims be accrued generally at an effective rate of 5.1%, compounded annually. Based on an assumed 5.1% interest rate on Deferred Amounts, the Segregated Account would be responsible for accrued interest of approximately $225 million through December 31, 2013. If favorable rulings are received by the Rehabilitator from the IRS, then the Rehabilitator would likely file such amendments to the Segregated Account Rehabilitation Plan. The timing and likelihood of such amendments to the Segregated Account Rehabilitation Plan are presently unclear, but such amendments will result in material uses of future liquidity.

Ambac Assurance is limited in its ability to pay dividends pursuant to the terms of its Auction Market Preferred Shares (“AMPS”), which state that dividends may not be paid on the common stock of Ambac Assurance unless all accrued and unpaid dividends on the AMPS for the then current dividend period have been paid, provided that dividends on the common stock may be made at all times for the purpose of, and only in such amounts as are necessary for enabling Ambac (i) to service its indebtedness for borrowed money as such payments become due or (ii) to pay its operating expenses. If dividends are paid on the common stock as provided above, dividends on the AMPS become cumulative until the date that all accumulated and unpaid dividends have been paid on the AMPS. Ambac Assurance has not paid dividends on the AMPS since 2010. Refer to Part I, Item 1, “Insurance Regulatory Matters – Dividend Restrictions, Including Contractual Restrictions” and Note 9 to the Consolidated Financial Statements located in Part II, Item 8, for more information on dividend payment restrictions.

Our ability to recover RMBS subrogation recoveries and other subrogation recoveries is subject to significant uncertainty, including risks inherent in litigation, collectability of such amounts from counterparties (and/or their respective parents and affiliates), timing of receipt of any such recoveries, regulatory intervention which could impede our ability to take actions required to realize such recoveries and uncertainty inherent in the assumptions used in estimating such recoveries. The amount of these subrogation recoveries is significant and if we are unable to recover any amounts our future available liquidity to pay claims would be reduced materially. Ambac Assurance received subrogation of $455.5 million during the year ended December 31, 2013. Refer to Footnote 8 of the Consolidated Financial Statements included in Part II, Item 8 of this Form 10-K for further information on expected future subrogation.

A wholly-owned subsidiary of Ambac Assurance is a party to credit default swaps (“CDS”) with various commercial counterparties. Ambac Assurance guarantees its subsidiary’s payment obligations under such CDS. The terms of such CDS include events of default or termination events based on the occurrence of certain events, or the existence of certain circumstances, relating to the financial condition of Ambac Assurance, including the commencement of an insolvency, rehabilitation or like proceeding. If such an event of default or termination event were to occur, the CDS counterparties could claim the contractual right to terminate the CDS and require Ambac Assurance, as financial guarantor, to make termination payments. Ambac Assurance estimates that such potential termination payments amounted to $245.8 million as of December 31, 2013. However, the Rehabilitation Court has issued an injunction barring the early termination of contracts based on the occurrence of events or the existence of circumstances like those described above. As a result, Ambac Assurance does not expect to make early termination payments in respect of CDS where such amounts are claimed based on the occurrence of events, or the existence of circumstances, relating to the financial condition of Ambac Assurance.

 

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Financial Services Liquidity. The principal uses of liquidity by Financial Services subsidiaries are payments on investment agreement obligations; payments on intercompany loans; payments under derivative contracts (primarily interest rate swaps and US Treasury futures); collateral posting; and operating expenses. Management believes that its Financial Services’ short and long-term liquidity needs can be funded from net investment coupon receipts; the maturity of invested assets; sales of invested assets; intercompany loans from Ambac Assurance; and receipts from derivative contracts.

While meaningful progress has been made in unwinding the Financial Services businesses, multiple sources of risk continue to exist. These include deterioration in investment security market values, additional unexpected draws on outstanding investment agreements, the settlement of potential swap terminations and the inability to replace or establish new hedge positions and interest rate volatility.

Investment agreements subject Ambac to liquidity risk associated with unanticipated withdrawals of principal as allowed by the terms of contingent withdrawal provisions within all remaining outstanding investment agreements. Investment agreements outstanding as of December 31, 2013 were issued in connection with either municipal bonds or structured credit-linked notes (“CLNs”). The investment agreements contain contingent withdrawal risk in the event of either an early redemption of the related bond issue or certain credit events pertaining to the underlying borrower. As of December 31, 2013, Ambac had $314.3 million of contingent withdrawal investment agreements related to CLNs and $44.4 million related to municipal bonds. The investment agreement business manages liquidity risk by closely matching the maturity schedules of its invested assets with the maturity schedules of its investment agreement liabilities. Additionally, management performs regular surveillance of the related transactions. This surveillance process is customized for each investment agreement transaction and includes a review of past activity, recently issued trustee reports, reference name performance characteristics and third party tools to analyze early withdrawal risk.

Liquidity risk also exists in the derivative contract and investment agreement portfolios due to contract provisions which may require collateral posting or early termination of contracts. Both the investment agreement and swap businesses borrow cash and securities from Ambac Assurance to meet liquidity needs when such borrowing is determined to be most economically beneficial to Ambac Assurance. Intercompany loans are made under established lending agreements with defined borrowing limits that have received non-disapproval from OCI.

Credit Ratings and Collateral . Ambac Assurance is no longer rated by Moody’s and S&P, which resulted in the triggering of required cure provisions in nearly all of the investment agreements issued. In many cases, Ambac chose to terminate investment agreements, particularly when it was able to do so at levels that resulted in meaningful discounts to book value. In addition, at December 31, 2013 Ambac posted collateral of $371.7 million in connection with its outstanding investment agreements.

Ambac Financial Services (“AFS”) provided interest rate and currency swaps for states, municipalities, asset-backed issuers and other entities in connection with their financings. AFS hedges the remaining interest rate risk of these instruments, as well as a portion of the interest rate risk in the financial guarantee portfolio, with standardized derivative contracts, including financial futures contracts, which contain collateral or margin requirements. Under these hedge agreements, AFS is required to post collateral or margin to its counterparties and futures commission merchants to cover unrealized losses. In addition, AFS is required to post independent amounts of collateral or margin in excess of the amounts needed to cover unrealized losses. All AFS derivative contracts containing ratings-based downgrade triggers that could result in collateral or margin posting or a termination have been triggered. If terminations were to occur, AFS would be required to make termination payments but would also receive a return of collateral or margin in the form of cash, U.S. Treasury or U.S. government agency obligations with market values equal to or in excess of market values of the swaps and futures contracts. In most cases, AFS will look to re-establish hedge positions that are terminated early. This may result in additional collateral or margin obligations. The amount of additional collateral or margin posted on

 

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derivatives contracts will depend on several variables including the degree to which counterparties exercise their termination rights (or agreements terminate automatically) and the terms on which hedges can be replaced. All collateral and margin obligations are currently met. Collateral and margin posted by AFS totaled a net amount of $126.2 million, including independent amounts, under these contracts at December 31, 2013.

Ambac Credit Products (“ACP”) entered into credit derivative contracts. ACP is not required to post collateral under any of its contracts.

BALANCE SHEET

Fresh start accounting prescribed by the Reorganizations Topic of the ASC was adopted upon our emergence from Chapter 11 proceedings on the Effective Date. As a result of the application of fresh start accounting, Successor Ambac remeasured all tangible and intangible assets and all liabilities, other than deferred taxes and liabilities associated with post-retirement benefits, at fair value, and recorded goodwill representing the excess of reorganization value of Successor Ambac over the fair value of net assets being re-measured. Thus, the post-emergence consolidated financial statements reflect the new basis of accounting. Accordingly, the financial condition for the affected periods between Successor Ambac and Predecessor Ambac are not comparable. However, for discussion purposes, we present the balance sheet analysis as described below, supplemented by detailed discussions on the effects of fresh start accounting in the respective sections. We believe this presentation provides management and investors a better perspective of our business and on-going operational financial performance and trends for comparative purposes.

The valuation of derivative liabilities (credit derivatives and interest rate swaps) is impacted by the market’s view of Ambac Assurance’s credit quality. We reflect Ambac’s credit quality in the fair value of such liabilities by including a CVA in the determination of fair value, whereas a lower (higher) CVA, in isolation, would result in an increase (decrease) in the liability. Successor Ambac reduced its derivative liabilities by $87.4 million at December 31, 2013, and Predecessor Ambac reduced its derivative liabilities by $383.1 million at December 31, 2012, to incorporate the market’s view of Ambac’s credit quality. The lower CVA as of December 31, 2013 is a function of (i) lower underlying derivative liabilities before considering Ambac credit quality and (ii) the market’s view that Ambac’s credit quality has improved during 2013.

Total assets increased by approximately $21.7 million from December 31, 2012 (Predecessor Ambac) to $27.1 billion at December 31, 2013 (Successor Ambac). The increase is primarily a result of (i) Fresh Start adjustments of $1.9 billion and (ii) higher invested assets at fair value, partially offset by (i) lower variable interest entity assets and (ii) lower premium receivables. Fresh Start adjustments primarily related to the recording of an insurance intangible asset of $1.6 billion and goodwill of $515 million and the elimination of deferred acquisition costs. Total liabilities decreased by approximately $4.2 billion from December 31, 2012 (Predecessor Ambac) to $26.1 billion as of December 31, 2013 (Successor Ambac), primarily as a result of (i) Fresh Start and Reorganization adjustments of $1.1 billion; (ii) lower variable interest entity liabilities; (iii) lower loss and loss expense reserves; and (iv) lower unearned premium reserves. Reorganization and Fresh Start Adjustments were primarily due to the elimination of liabilities subject to compromise of $1.7 billion, partially offset by fair value adjustments increasing the carrying value of liabilities with the most significant change being the increase in the liability for long-term debt (surplus notes issued by Ambac Assurance and the Segregated Account) by $768 million.

As of December 31, 2013 total stockholders’ equity was $978.4 million (Successor Ambac); compared with total stockholders’ deficit of $3.25 billion at December 31, 2012 (Predecessor Ambac). This increase was primarily due to Fresh Start and Reorganization adjustments of $2.9 billion as well as net income in 2013. Refer to Note 3 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for further details regarding such adjustments.

 

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Investment Portfolio . Ambac Assurance’s and Everspan’s non-VIE investment objective is to achieve the highest risk-adjusted after-tax yield on a diversified portfolio consistent with Ambac Assurance’s and Everspan’s risk tolerance while employing asset/liability management practices to satisfy all operating and strategic liquidity needs. Ambac Assurance’s and Everspan’s investment portfolio is subject to internal investment guidelines and is subject to limits on types and quality of investments imposed by applicable insurance laws and regulations. Such guidelines set forth minimum credit rating requirements and credit risk concentration limits. Within these guidelines, Ambac Assurance opportunistically purchases Ambac Assurance insured securities in the open market given their relative risk/reward characteristics and to mitigate the effect of potential future adverse development in the insured portfolio. Ambac Assurance’s and Everspan’s investment policies are subject to oversight by the Rehabilitator of the Segregated Account pursuant to contracts entered into between Ambac Assurance and the Segregated Account. Refer to Note 1 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for further information.

Ambac UK’s non-VIE investment policy is designed with the primary objective of ensuring that Ambac UK is able to meet its financial obligations as they fall due, in particular with respect to policyholders. Ambac UK’s investment portfolio is primarily fixed income investments and pooled investment funds with diversified holdings. The portfolio is subject to internal investment guidelines and may be subject to limits on types and quality of investments imposed by its regulator. Ambac UK’s investment policy sets forth minimum credit rating requirements and concentration limits, among other restrictions. The Board of Directors of Ambac UK approves any changes or exceptions to Ambac UK’s investment policy.

The Financial Services non-VIE investment portfolio consists primarily of assets funded with proceeds from the issuance of investment agreement liabilities. The primary investment objective is to invest in a diversified portfolio of high-grade securities that produce sufficient cash flow to satisfy all investment agreement liabilities and their collateral requirements. The investment portfolio is subject to internal investment guidelines. Such guidelines set forth minimum credit rating requirements and credit risk concentration limits.

The following table summarizes the composition of Ambac’s investment portfolio, excluding VIE investments, at fair value by segment at December 31, 2013 and December 31, 2012:

 

($ in millions)

   Financial
Guarantee
    Financial
Services
    Corporate     Total  

Successor Ambac—December 31, 2013 :

        

Fixed income securities:

        

Municipal obligations (1)

   $ 1,377.7      $ —       $
 

  
 
 
  $ 1,377.7   

Corporate obligations

     1,489.4        —         —         1,489.4   

Foreign obligations

     124.9        —         —         124.9   

U.S. government obligations

     89.1        37.2        —         126.3   

U.S. agency obligations

     32.1        —          —         32.1   

Residential mortgage-backed securities (2)

     1,547.8        10.8        —         1,558.6   

Collateralized debt obligations

     176.2        7.7        —         183.9   

Other asset-backed securities

     649.9        314.4        28.1        992.4   
  

 

 

   

 

 

   

 

 

   

 

 

 
     5,487.1        370.1        28.1        5,885.3   

Short-term (1)

     262.3        —         8.8        271.1   

Other investments

     241.1        —         —         241.1   
  

 

 

   

 

 

   

 

 

   

 

 

 
     5,990.5        370.1        36.9        6,397.5   
  

 

 

   

 

 

   

 

 

   

 

 

 

Fixed income securities pledged as collateral:

        

U.S. government obligations

     126.2        —         —         126.2   
  

 

 

   

 

 

   

 

 

   

 

 

 
     126.2        —         —         126.2   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total investments

   $ 6,116.7      $ 370.1      $ 36.9      $ 6,523.7   
  

 

 

   

 

 

   

 

 

   

 

 

 

Percent total

     93.7     5.7     0.6     100

 

 

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($ in millions)

   Financial
Guarantee
    Financial
Services
    Corporate     Total  

Predecessor Ambac—December 31, 2012 :

        

Fixed income securities:

        

Municipal obligations (1)

   $ 1,848.9      $ —       $
 

  
 
 
  $ 1,848.9   

Corporate obligations

     1,013.2        64.8        —         1,078.0   

Foreign obligations

     70.1        —         —         70.1   

U.S. government obligations

     105.2        22.1        —         127.3   

U.S. agency obligations

     78.4        4.1        —         82.5   

Residential mortgage-backed securities (2)

     1,362.5        93.1        —         1,455.6   

Collateralized debt obligations

     22.3        11.0        —         33.3   

Other asset-backed securities

     520.0        186.6        —         706.6   
  

 

 

   

 

 

   

 

 

   

 

 

 
     5,020.6        381.7        —         5,402.3   

Short-term (1)

     629.7        1.7        30.3        661.7   

Other investments

     0.1        —         —         0.1   
  

 

 

   

 

 

   

 

 

   

 

 

 
     5,650.4        383.4        30.3        6,064.1   
  

 

 

   

 

 

   

 

 

   

 

 

 

Fixed income securities pledged as collateral:

        

U.S. government obligations

     265.8        —         —         265.8   
  

 

 

   

 

 

   

 

 

   

 

 

 
     265.8        —         —         265.8   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total investments

   $ 5,916.2      $ 383.4      $ 30.3      $ 6,329.9   
  

 

 

   

 

 

   

 

 

   

 

 

 

Percent total

     93.4     6.1     0.5     100

 

(1) Includes taxable and tax exempt securities.
(2) Includes RMBS insured by Ambac Assurance.

 

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The following table represents the fair value of mortgage and asset-backed securities at December 31, 2013 and December 31, 2012 by classification:

 

($ in millions)

   Financial
Guarantee
     Financial
Services
     Corporate      Total  

Successor Ambac—December 31, 2013 :

           

Residential mortgage-backed securities:

           

RMBS—Second Lien

   $ 702.1       $ —        $ —        $ 702.1   

RMBS—First-lien—Alt-A

     468.8         —          —          468.8   

RMBS—First Lien—Sub Prime

     246.0         —          —          246.0   

RMBS—First Lien—Prime

     86.7         —          —          86.7   

U.S. Government Sponsored Enterprise Mortgages

     42.9         10.8         —          53.7   

Government National Mortgage Association

     1.3         —           —          1.3   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total residential mortgage-backed securities

     1,547.8         10.8         —          1,558.6   
  

 

 

    

 

 

    

 

 

    

 

 

 

Other asset-backed securities

           

Military Housing

     344.1         —          —          344.1   

Credit Cards

     20.7         235.3         8.0         264.0   

Auto

     122.5         79.1         17.8         219.4   

Structured Insurance

     50.9         —          —          50.9   

Student Loans

     14.0         —          —          14.0   

Other

     97.7         —          2.3         100.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total other asset-backed securities

     649.9         314.4         28.1         992.4   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 2,197.7       $ 325.2       $ 28.1       $ 2,551.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

Predecessor Ambac—December 31, 2012:

           

Residential mortgage-backed securities:

           

RMBS—Second Lien

   $ 502.9       $ —        $ —        $ 502.9   

RMBS—First-lien—Alt-A

     582.5         0.2         —          582.7   

RMBS—First Lien—Sub Prime

     177.9         —          —          177.9   

RMBS—First Lien—Prime

     30.2         —          —          30.2   

U.S. Government Sponsored Enterprise Mortgages

     66.9         89.6         —          156.5   

Government National Mortgage Association

     2.1         3.3         —          5.4   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total residential mortgage-backed securities

     1,362.5         93.1         —          1,455.6   
  

 

 

    

 

 

    

 

 

    

 

 

 

Other asset-backed securities

           

Military Housing

     379.7         —          —          379.7   

Credit Cards

     —          154.4         —          154.4   

Auto

     13.1         32.2         —          45.3   

Structured Insurance

     56.9         —          —          56.9   

Student Loans

     16.7         —          —          16.7   

Other

     53.6         —          —          53.6   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total other asset-backed securities

     520.0         186.6         —          706.6   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 1,882.5       $ 279.7       $ —        $ 2,162.2   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

The weighted average rating, which is based on the lower of Standard & Poor’s or Moody’s ratings, of the mortgage and asset-backed securities is CCC- and BBB+ as of December 31, 2013, and CCC+ and BB+ as of December 31, 2012, respectively.

The following table provides the fair value of residential mortgage-backed securities (excluding U.S. Government Sponsored Enterprises and Government National Mortgage Association Mortgages) by vintage and type at December 31, 2013 and December 31, 2012:

 

Year of Issue

   First-lien
Alt-A
     Second-lien      First-lien
Prime
     First-lien
Sub-Prime
     Total  
($ in millions)                                   

Successor Ambac—December 31, 2013:

              

2003 and prior

   $ —        $ 4.1       $ —        $ 6.6       $ 10.7   

2004

     46.0         16.0         —          1.9         63.9   

2005

     177.5         181.2         15.8         40.6         415.1   

2006

     79.3         415.6         5.6         102.1         602.6   

2007

     166.0         85.2         65.3         94.8         411.3   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 468.8       $ 702.1       $ 86.7       $ 246.0       $ 1,503.6   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Predecessor Ambac—December 31, 2012:

              

2003 and prior

   $ —        $ 4.5       $ —        $ 3.8       $ 8.3   

2004

     31.3         14.1         —          1.6         47.0   

2005

     158.0         119.3         11.9         25.1         314.3   

2006

     206.5         303.4         3.8         88.6         602.3   

2007

     186.9         61.6         14.5         58.8         321.8   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 582.7       $ 502.9       $ 30.2       $ 177.9       $ 1,293.7   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Ambac’s fixed income portfolio includes securities covered by guarantees issued by Ambac Assurance and other financial guarantors (“insured securities”). The published Moody’s and S&P ratings on these securities reflect the higher of the financial strength rating of the financial guarantor or the rating of the underlying issuer. In the event these underlying ratings are not available from the rating agencies, Ambac will assign an internal rating. Since the insurance cannot be legally separated from the underlying security, the fair value of the insured securities in the investment portfolio includes the value of any financial guarantee embedded in such securities, including guarantees written by Ambac Assurance. In addition, a hypothetical fair value assuming the absence of the insurance is not readily available from our independent pricing sources. Refer to Note 11 to the Consolidated Financial Statements included in Part II, Item 8 of this Form 10-K for further details on securities insured by Ambac Assurance.

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

The following table provides the ratings distribution of the fixed income investment portfolio at December 31, 2013 and December 31, 2012 by segment:

Rating (1) :

 

     Financial
Guarantee (2)
    Financial
Services
    Combined  

Successor Ambac—December 31, 2013 :

      

AAA

     12     87     16

AA

     24        13        24   

A

     19        —         18   

BBB

     14        —         13   

Below investment grade (2)

     26        —         24   

Not rated

     5        —         5   
  

 

 

   

 

 

   

 

 

 
     100     100     100
  

 

 

   

 

 

   

 

 

 

Predecessor Ambac—December 31, 2012 :

      

AAA

     19     52     21

AA

     35        48        36   

A

     13        —         12   

BBB

     11        —         10   

Below investment grade (2)

     17        —         16   

Not rated

     5        —         5   
  

 

 

   

 

 

   

 

 

 
     100     100     100
  

 

 

   

 

 

   

 

 

 

 

(1) Ratings are based on the lower of Moody’s or S&P ratings. If guaranteed, rating represents the higher of the underlying or guarantor’s financial strength rating.
(2) Below investment grade insured bonds purchased as part of the loss remediation strategy represent 20% and 12% of the 2013 and 2012 Financial Guarantee portfolio, respectively.

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

The following table summarizes, for all available-for-sale securities in an unrealized loss position as of December 31, 2013 and December 31, 2012, the aggregate fair value and gross unrealized loss by length of time those securities have been continuously in an unrealized loss position:

 

     Successor Ambac –
December 31, 2013 (2)
    Predecessor Ambac –
December 31, 2012
 

($ in millions)

   Estimated
Fair
Value (1)
     Gross
Unrealized
Losses
    Estimated
Fair
Value (1)
     Gross
Unrealized
Losses
 

Municipal obligations in continuous unrealized loss for:

            

Less than 12 months

   $ 437.7       $ 28.4      $ 42.5       $ 0.4   

Greater than 12 months

     —          —         4.3         —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     437.7         28.4        46.8         0.4   
  

 

 

    

 

 

   

 

 

    

 

 

 

Corporate obligations in continuous unrealized loss for:

            

Less than 12 months

     877.4         23.9        69.7         1.1   

Greater than 12 months

     —          —         132.9         8.0   
  

 

 

    

 

 

   

 

 

    

 

 

 
     877.4         23.9        202.6         9.1   
  

 

 

    

 

 

   

 

 

    

 

 

 

Foreign government obligations in continuous unrealized loss for:

            

Less than 12 months

     117.9         6.9        —          —    

Greater than 12 months

     —          —         —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     117.9         6.9        —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 

U.S. government obligations in continuous unrealized loss for:

            

Less than 12 months

     70.0         2.2        26.1         0.7   

Greater than 12 months

     —          —         —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     70.0         2.2        26.1         0.7   
  

 

 

    

 

 

   

 

 

    

 

 

 

U.S. agency obligations in continuous unrealized loss for:

            

Less than 12 months

     5.8         0.1        —          —    

Greater than 12 months

     —          —         —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     5.8         0.1        —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 

Residential mortgage-backed securities in continuous unrealized loss for:

            

Less than 12 months

     644.5         18.1        88.5         5.3   

Greater than 12 months

     —          —         116.2         15.2   
  

 

 

    

 

 

   

 

 

    

 

 

 
     644.5         18.1        204.7         20.5   
  

 

 

    

 

 

   

 

 

    

 

 

 

Collateralized debt obligations in continuous unrealized loss for:

            

Less than 12 months

     137.7         0.4        0.2         0.2   

Greater than 12 months

     —          —         13.5         0.3   
  

 

 

    

 

 

   

 

 

    

 

 

 
     137.7         0.4        13.7         0.5   
  

 

 

    

 

 

   

 

 

    

 

 

 

Other asset-backed securities in continuous unrealized loss for:

            

Less than 12 months

     630.0         36.6        0.2         —    

Greater than 12 months

     —          —         188.8         46.5   
  

 

 

    

 

 

   

 

 

    

 

 

 
     630.0         36.6        189.0         46.5   
  

 

 

    

 

 

   

 

 

    

 

 

 

Short term securities in continuous unrealized loss for:

            

Less than 12 months

     —          —         1.2         —    

Greater than 12 months

     —          —         —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     —          —         1.2         —    
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 2,921.0       $ 116.6      $ 684.1       $ 77.7   
  

 

 

    

 

 

   

 

 

    

 

 

 

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

 

(1) Since the table is presented in millions, securities with market values and unrealized losses that are less than $0.1 will be shown as zero.
(2) As a result of the implementation of Fresh Start, amortized cost for available for sale securities was set to equal fair value on April 30, 2013. Accordingly, Successor Ambac does not have any gross unrealized losses that have been in a continuous unrealized loss position for greater than 12 months.

Management has determined that the unrealized losses in available-for-sale securities at December 31, 2013 are primarily driven by the increases in interest rates and market shifts in risk and liquidity premiums demanded by fixed income investors between the Fresh Start Reporting Date of April 30, 2013 and December 31, 2013. Ambac has concluded that unrealized losses reflected in the table above are temporary in nature based upon (a) there being no unexpected principal and interest payment defaults on these securities; (b) an analysis of the creditworthiness of the issuer and financial guarantor, as applicable, and analysis of projected defaults on the underlying collateral; (c) management having no intent to sell these securities; and (d) it being not more likely than not that Ambac will be required to sell these securities before the anticipated recovery of its amortized cost basis.

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

The following table summarizes amortized cost and fair value for all available-for-sale securities in an unrealized loss position as of December 31, 2013 and December 31, 2012, by contractual maturity date:

 

     Successor Ambac –
December 31, 2013
    Predecessor Ambac –
December 31, 2012
 

($ in millions)

   Amortized
Cost
     Estimated
Fair Value
    Amortized
Cost
     Estimated
Fair Value
 

Municipal obligations:

            

Due in one year or less

   $ —        $ —       $ —        $ —    

Due after one year through five years

     74.8         73.1        2.7         2.7   

Due after five years through ten years

     313.7         294.1       44.2         43.8   

Due after ten years

     77.6         70.5        0.3         0.3   
  

 

 

    

 

 

   

 

 

    

 

 

 
     466.1         437.7        47.2         46.8   
  

 

 

    

 

 

   

 

 

    

 

 

 

Corporate obligations:

            

Due in one year or less

     25.5         25.5        18.0         17.5   

Due after one year through five years

     357.5         353.7        140.6         136.5   

Due after five years through ten years

     475.9         457.8        28.1         27.0   

Due after ten years

     42.4         40.4        25.0         21.6   
  

 

 

    

 

 

   

 

 

    

 

 

 
     901.3         877.4        211.7         202.6   
  

 

 

    

 

 

   

 

 

    

 

 

 

Foreign government obligations:

            

Due in one year or less

     —          —         —          —    

Due after one year through five years

     51.7         50.4        —          —    

Due after five years through ten years

     67.6         62.8        —          —    

Due after ten years

     5.5         4.7        —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     124.8         117.9        —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 

U.S. government obligations:

            

Due in one year or less

     0.4         0.4        16.7         16.2   

Due after one year through five years

     51.3         50.3        9.9         9.7   

Due after five years through ten years

     17.8         16.7        0.2         0.2   

Due after ten years

     2.7         2.6        —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     72.2         70.0        26.8         26.1   
  

 

 

    

 

 

   

 

 

    

 

 

 

U.S. agency obligations:

            

Due in one year or less

     1.3         1.3       —          —    

Due after one year through five years

     4.6         4.5       —          —    

Due after five years through ten years

     —          —         —          —    

Due after ten years

     —           —          —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 
     5.9         5.8        —          —    
  

 

 

    

 

 

   

 

 

    

 

 

 

Residential mortgage-backed securities

     662.6         644.5        225.2         204.7   
  

 

 

    

 

 

   

 

 

    

 

 

 

Collateralized debt obligations

     138.1         137.7        14.2         13.7   
  

 

 

    

 

 

   

 

 

    

 

 

 

Other asset-backed securities

     666.6         630.0        235.5         189.0   
  

 

 

    

 

 

   

 

 

    

 

 

 

Short term securities

     —           —          1.2         1.2   
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 3,037.6       $ 2,921.0      $ 761.8       $ 684.1   
  

 

 

    

 

 

   

 

 

    

 

 

 

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

The following table summarizes, for all securities sold at a loss during 2013 and 2012, the aggregate fair value and realized loss by length of time those securities were continuously in an unrealized loss position prior to the sale date:

 

    Successor Ambac     Predecessor Ambac  
    Eight months
ended

December 31, 2013 (1)
    Four months ended
April  30, 2013
    Year ended
December 31,
2012
 

($ in millions)

  Fair
Value
    Gross
Realized
Losses
    Fair
Value
    Gross
Realized
Losses
    Fair
Value
    Gross
Realized
Losses
 

Municipal obligations in continuous unrealized loss for:

             

Less than 12 months

  $ 173.1      $ 5.0     $ —       $ —       $ —       $ —    

Greater than 12 months

    —         —         —         —         —         —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    173.1        5.0       —         —         —         —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Corporate obligations in continuous unrealized loss for:

             

Less than 12 months

    36.0        0.7       —         —         —         —    

Greater than 12 months

    —         —         —         —         50.4        0.6  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    36.0        0.7        —         —         50.4        0.6   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Foreign government obligations in continuous unrealized loss for:

             

Less than 12 months

    35.2        1.2       —         —         —         —    

Greater than 12 months

    —         —         —         —         —          —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    35.2        1.2        —         —         —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

U.S. government obligations in continuous unrealized loss for:

             

Less than 12 months

    18.8        0.4       —         —         —         —    

Greater than 12 months

    —         —         —         —         —          —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    18.8        0.4        —         —         —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

U.S. agency obligations in continuous unrealized loss for:

             

Less than 12 months

    —         —         —         —         —         —    

Greater than 12 months

    —         —         —         —         —         —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    —         —         —         —         —         —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Residential mortgage-backed securities in continuous unrealized loss for:

             

Less than 12 months

    28.5       0.9       0.5       0.1       4.1       0.2  

Greater than 12 months

    —         —         —         —         —         —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    28.5       0.9       0.5       0.1       4.1       0.2  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Collateralized debt obligations in continuous unrealized loss for:

             

Less than 12 months

    —         —         —         —         —         —    

Greater than 12 months

    —         —         —         —         —         —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    —         —         —         —         —         —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Other asset-backed securities in continuous unrealized loss for:

             

Less than 12 months

    13.8        0.3       —         —         11.1        —    

Greater than 12 months

    —          —          38.4        —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    13.8        0.3        38.4        —          11.1        —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Short term securities in continuous unrealized loss for:

             

Less than 12 months

    71.1        —         25.9        —         91.5        —    

Greater than 12 months

    —          —          —          —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    71.1        —         25.9        —         91.5        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 376.5      $ 8.5      $ 64.8      $ 0.1      $ 157.1      $ 0.8   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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(1) As a result of the implementation of Fresh Start, amortized cost for available for sale securities were set to fair value on April 30, 2013. Accordingly, Successor Ambac does not have any realized losses on securities that were in a continuous unrealized loss position for greater than 12 months.

Insurance Intangible Asset . At the Fresh Start Reporting Date, an insurance intangible asset of $1,659 million was recorded which represented the difference between the fair value and aggregate carrying value of the financial guarantee insurance and reinsurance assets and liabilities. As of December 31, 2013, the insurance intangible asset is $1,597 million, net of accumulated amortization of $101 million.

Please refer to the “Results of Operations” section of the Management’s Discussion and Analysis of Financial Condition and Insurance Intangible Asset section located in Note 8 of the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for further background information on the insurance intangible asset.

Goodwill . At the Fresh Start Reporting Date, goodwill of $515 million was recorded which represents the excess reorganization value which could not be attributed to the fair value of specific identified tangible and intangible assets. As of December 31, 2013 we concluded goodwill was not impaired and the asset remains at $515 million.

Please refer to the “Critical Accounting Policies and Estimates” section of the Management’s Discussion and Analysis of Financial Condition and Note 2 and Note 3 of the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for a discussion on how goodwill was determined and for the factors that are considered in the impairment assessment process.

Losses and Loss Expense Reserve . Losses and loss expenses are based upon estimates of the aggregate losses inherent in the financial guarantee portfolio for insurance policies issued to beneficiaries, including unconsolidated VIEs. As noted above, as a result of Fresh Start, insurance liabilities are using the same accounting policies for both Successor and Predecessor periods. The loss and loss expense reserves for financial guarantee insurance discussed herein relates only to Ambac’s non-derivative insurance business for insurance policies for which we do not consolidate the VIE. Losses and loss expenses are based upon estimates of the ultimate aggregate losses inherent in the non-derivative financial guarantee portfolio as of the reporting date. The evaluation process for determining the level of reserves is subject to certain estimates and judgments.

The losses and loss expense reserves, before reinsurance as of December 31, 2013 and December 31, 2012 are $5,470.2 million and $6,122.1 million, respectively. As of December 31, 2013 and December 31, 2012, respectively, $3,904.3 million and $3,388.1 million of Segregated Account claims remain unpaid. Reinsurance recoverables on the balance sheet as of December 31, 2013 and December 31, 2012 are $135.7 million and $159.1 million, respectively.

Losses and loss expense reserves are included in the Consolidated Balance Sheets as follows:

 

    Successor Ambac – December 31, 2013     Predecessor Ambac – December 31, 2012  

($ in millions)

  Gross Loss
Reserves
    Gross
Subrogation
Reserves (1)
    Gross Loss
Reserves, net of
Subrogation
Reserves
    Gross Loss
Reserves
    Gross
Subrogation
Reserves (1)
    Gross Loss
Reserves, net of
Subrogation
Reserves
 

Losses and loss expense reserve

  $ 7,767      $ (1,798   $ 5,969      $ 9,230      $ (2,611   $ 6,619   

Subrogation recoverable

    665        (1,164     (499     286        (783     (497
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Totals

  $ 8,432      $ (2,962   $ 5,470      $ 9,516      $ (3,394   $ 6,122   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Gross subrogation reserves include RMBS representation and warranty recoveries and other subrogation recoveries of $2,207 and $2,523 at December 31, 2013 and 2012, respectively.

 

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Please refer to the “Results of Operations” section of this Management’s Discussion and Analysis of Financial Condition and Results of Operations and Loss Reserves section located in Note 8 of the Consolidated Financial Statements located in Item 8 of this Form 10-K for further background information on losses and loss expenses.

Ambac has exposure to various bond types issued in the debt capital markets. Our experience has shown that, for the majority of bond types, we have not experienced significant claims. We have observed that, with respect to certain bond types, it is reasonably possible that a material change in actual loss severities and defaults could occur over time. In the future, our experience may differ with respect to the types of guaranteed bonds affected or the magnitude of the effect. The bond types that have experienced significant claims and loss reserves are residential mortgage-backed securities (“RMBS”) and student loan securities. These two bond types represent 93% of our ever-to-date insurance claims recorded with RMBS comprising 90% of our ever-to-date claims payments.

U.S. Residential Mortgage-backed Securities

Ambac has exposure to the U.S. mortgage market primarily through direct financial guarantees of RMBS, including transactions collateralized by first and/or second liens. We established a representation and warranty subrogation recovery as further discussed in Note 7 to the Consolidated Financial Statements located in Part II Item 7. The table below distinguishes between RMBS credits for which we have not established a representation and warranty subrogation recovery and those for which we have, providing in both cases the number of policies, gross par outstanding, gross loss reserves before subrogation recoveries, subrogation recoveries, and gross loss reserves net of subrogation for all RMBS exposures for which Ambac established reserves at December 31, 2013 and 2012:

 

     Successor Ambac – December 31, 2013  

($ in millions)

   Number of
policies
     Gross par
outstanding
     Gross loss reserve
before representation

and warranty
subrogation
recoveries
     Representation
and warranty
subrogation
recoveries
    Gross loss
reserve net of
subrogation
recoveries (1)
 

Second-lien

     22       $ 2,127       $ 502       $ —       $ 502   

First-lien-Mid-prime

     55         2,590         1,523         —         1,523   

First-lien-Sub-prime

     40         1,386         181         —         181   

Other

     14         262         149         —         149   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total Credits Without Subrogation

     131         6,365         2,355         —         2,355   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Second-lien

     19         2,408         1,291         (1,411     (120

First-lien-Mid-prime

     24         1,139         1,026         (430     596   

First-lien-Sub-prime

     5         1,771         847         (366     481   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total Credits With Subrogation

     48         5,318         3,164         (2,207     957   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total

     179       $ 11,683       $ 5,519       $ (2,207   $ 3,312   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

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     Predecessor Ambac – December 31, 2012  

($ in millions)

   Number of
policies
     Gross par
outstanding
     Gross loss reserve
before representation

and warranty
subrogation
recoveries
     Representation
and warranty
subrogation
recoveries
    Gross loss
reserve net of
subrogation
recoveries (1)
 

Second-lien

     20       $ 2,215       $ 597         —       $ 597   

First-lien-Mid-prime

     57         3,432         1,511         —         1,511   

First-lien-Sub-prime

     39         1,476         219         —         219   

Other

     12         304         193         —         193   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total Credits Without Subrogation

     128         7,427         2,520         —         2,520   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Second-lien

     22         3,200         1,333         (1,515     (182

First-lien-Mid-prime

     22         1,498         1,144         (528     616   

First-lien-Sub-prime

     5         2,002         1,086         (480     606   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total Credits With Subrogation

     49         6,700         3,563         (2,523     1,040   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total

     177       $ 14,127       $ 6,083       $ (2,523   $ 3,560   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

(1) Included in Gross Loss Reserves are unpaid claims of $3,891 and $3,377 at December 31, 2013 and 2012, respectively, related to policies allocated to the Segregated Account.

 

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Student Loan

Total student loan gross par outstanding and gross loss reserves on Ambac insured obligations were as follows:

 

     Successor Ambac –
December 31, 2013
    Predecessor Ambac –
December 31, 2012
 

Issuer Type ($ in millions)

   Gross Par
Outstanding
     Gross Loss
Reserves
    Gross Par
Outstanding
     Gross Loss
Reserves
 

For-Profit Issuers

   $ 1,951       $ 921      $ 2,854       $ 949   

Not-For-Profit Issuers

     401         61        1,370         92   
  

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 2,352       $ 982      $ 4,224       $ 1,041   
  

 

 

    

 

 

   

 

 

    

 

 

 

Cash Flows . Net cash provided by (used in) operating activities was $186.9 million, ($4.4) million and ($613.9) million during the eight months ended December 31, 2013, the four months ended April 30, 2013 and year ended December 31, 2012, respectively. The principal sources of Ambac’s operating cash flows are gross installment premiums on insurance and credit default swap contracts, claim and reinsurance recoveries and RMBS subrogation recoveries. The principal uses of Ambac’s liquidity are the payment of operating expenses, claim and commutation payments on both insurance and credit derivative contracts, ceded reinsurance premiums, tax payments and OCI approved payments on surplus notes.

 

   

Ambac had loss payments net of salvage recoveries and reinsurance of $(103.9) million, $(19.7) million, and $938 million in the eight months ended December 31, 2013, the four months ended April 30, 2013 and the year ended December 31, 2012, respectively. The greater amounts for the year ended December 31, 2012 primarily relate to the partial payment of previously unpaid Segregated Account claims in accordance with the Policy Claim Rules.

 

   

In connection with a settlement with the IRS, Ambac paid $101.9 million to the US Treasury in April 2013.

 

   

As a result of higher interest rates in 2013, net payments under Ambac’s interest rate derivative contracts declined.

 

   

Future operating cash flows will primarily be impacted by the level of premium collections, surplus note interest payments (subject to approval by OCI) and claim payments (including the ultimate payment of presented but unpaid claims) including payments under credit default swap contracts.

Net cash used in financing activities was ($15.0) million, ($5.5) million and ($396.2) million during the eight months ended December 31, 2013, the four months ended April 30, 2013 and the year ended December 31, 2012, respectively. It included pay downs of $9.1 million, $5.5 million and $21.0 million on a variable interest entity secured borrowing during the eight months ended December 31, 2013, the four months ended April 30, 2013 and the year ended December 31, 2012, respectively, and repayments of investment agreements of $5.9 million, $0.0 million and $186.8 million, in the eight months ended December 31, 2013, the four months ended April 30, 2013 and the year ended December 31, 2012, respectively. Also included in 2012 financing activities was a payment of $188.4 million to repurchase surplus notes with an aggregate par value of $789.2 million.

Net cash (used in) provided by investing activities was ($247.5) million, $119.0 million, and $1,038.0 million for the eight months ended December 31, 2013, the four months ended April 30, 2013 and the year ended December 31, 2012.

 

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AMBAC ASSURANCE STATUTORY BASIS FINANCIAL RESULTS

Ambac Assurance’s and the Segregated Account’s statutory financial statements are prepared on the basis of accounting practices prescribed or permitted by the OCI. OCI recognizes only statutory accounting practices prescribed or permitted by the State of Wisconsin (“SAP”) for determining and reporting the financial condition and results of operations of an insurance company for determining its solvency under Wisconsin Insurance Law. The National Association of Insurance Commissioners (“NAIC”) Accounting Practices and Procedures manual (“NAIC SAP”) has been adopted as a component of prescribed practices by the State of Wisconsin.

On March 24, 2010, Ambac Assurance established the Segregated Account. Under Wisconsin insurance law, the Segregated Account is a separate insurer from Ambac Assurance and accordingly is subject to all of the filing and statutory reporting requirements of Wisconsin domiciled insurers. The purpose of the Segregated Account is to segregate certain segments of Ambac Assurance’s liabilities. The total assets, total liabilities, and total surplus of the Segregated Account are reported as discrete components of Ambac Assurance’s assets, liabilities, and surplus in Ambac Assurance’s statutory basis financial statements. Accordingly, Ambac Assurance’s statutory financial statements include the results of Ambac Assurance’s general account and, to the extent allowable under a prescribed accounting practice by OCI, the Segregated Account. Pursuant to this prescribed practice, the results of the Segregated Account are not fully included in Ambac Assurance’s statutory financial statements if Ambac Assurance’s surplus is (or would be) less than $100 million (“Minimum Surplus Amount”). Maintaining the Minimum Surplus Amount could result in a reduction in the liabilities assumed by Ambac Assurance from the Segregated Account. Please refer to Note 1 of the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K for additional information on the establishment of the Segregated Account as well as the operative documents between Ambac Assurance and the Segregated Account.

Ambac Assurance’s statutory policyholder surplus and qualified statutory capital (defined as the sum of policyholder surplus and mandatory contingency reserves) were $840.3 million and $905.1 million at December 31, 2013, respectively, as compared to $100.0 million and $628.3 million at December 31, 2012, respectively. The Segregated Account’s policyholder surplus amount, which is included in Ambac Assurance’s policyholder surplus, was $442.6 million and $(61.8) million as of December 31, 2013 and December 31, 2012, respectively. At December 31, 2012, Ambac Assurance’s policyholders surplus was at the Minimum Surplus Amount and therefore $163.7 million of the Segregated Account’s insurance liabilities were not assumed by Ambac Assurance under an aggregate excess of loss reinsurance agreement (the “Reinsurance Agreement”). In the event that Ambac Assurance does not maintain surplus in excess of the Minimum Surplus Amount, the Segregated Account would experience a shortfall in funds available to pay its liabilities to the extent that such liabilities exceed amounts available under the Secured Note (as defined in Note 1 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K) and the Reinsurance Agreement. Any such shortfall would be a consideration for the Rehabilitator in the determination of whether any changes to the Segregated Account Rehabilitation Plan and/or the amount of partial policy claim payments are necessary or appropriate or whether to institute general rehabilitation proceedings against Ambac Assurance.

As further described in Note 1 to the Consolidated Financial Statements in Part II, Item 8 of this Form 10-K, no decision has been announced with respect to effectuating or amending the Segregated Account Rehabilitation Plan. Possible modifications to the Plan with respect to the form and timing of satisfying the remaining balance of unpaid claims could have a material effect on the measurement of statutory policyholder surplus.

Ambac Assurance’s increase in policyholder surplus during 2013 was primarily due to the release of contingency reserves, realized capital gains on sales of investment securities and improvements in the fair value of investments carried at fair value. These improvements in policyholder surplus were partially offset by first-time payment defaults on certain general account policies and an increase in the liabilities assumed by Ambac Assurance from the Segregated Account for losses on policies allocated to the Segregated Account due to Ambac

 

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Assurance exceeding the Minimum Surplus Amount in 2013. Ambac Assurance and Everspan received approval to release contingency reserves of $575.0 million in 2013. Ambac Assurance’s statutory policyholder surplus includes $1,641.9 million of surplus and junior surplus notes issued to various parties (including $350 million of junior surplus notes issued to Ambac in May 2013). These surplus notes and junior surplus notes, as well as preferred stock issued by Ambac Assurance, are obligations of Ambac Assurance that must be satisfied prior to Ambac realizing residual value from Ambac Assurance.

The Segregated Account’s increase in policyholder surplus was primarily due to (i) the issuance of $350 million of junior surplus notes to Ambac in May 2013 and (ii) an increase in the liabilities assumed by Ambac Assurance from the Segregated Account for losses on policies allocated to the Segregated Account due to Ambac Assurance exceeding the Minimum Surplus Amount in 2013.

Ambac Assurance’s statutory surplus is sensitive to multiple factors, including: (i) loss reserve development (including policies allocated to the Segregated Account), (ii) possible declaration by the Rehabilitator of interest accruals on deferred claims for policies allocated to the Segregated Account, (iii) approval by OCI of interest payments on existing Surplus Notes issued by Ambac Assurance or the Segregated Account, (iv) deterioration in the financial position of Ambac Assurance subsidiaries that have their obligations guaranteed by Ambac Assurance, (v) first time payment defaults of insured obligations, which increases statutory loss reserves, (vi) commutations of insurance policies or credit derivative contracts at amounts that differ from the amount of loss reserves recorded, (vii) reinsurance contract terminations at amounts that differ from net assets recorded, (viii) changes to the fair value of investments carried at fair value, (ix) settlements of representation and warranty breach claims at amounts that differ from amounts recorded, including failures to collect such amounts, (x) realized gains and losses, including losses arising from other than temporary impairments of investment securities, and (xi) prescribed SAP practices by the OCI.

Interest payments on Surplus Notes of Ambac Assurance and the Segregated Account require the approval of OCI. OCI disapproved the requests of Ambac Assurance and the Rehabilitator of the Segregated Account, acting for and on behalf of the Segregated Account, to pay accrued interest on all the outstanding surplus notes issued by Ambac Assurance and the Segregated Account on each of the first three scheduled annual interest payment dates beginning with June 7, 2011. The cumulative unpaid interest on outstanding surplus notes will accrue and compound interest annually until paid. The balance of disapproved interest payments subject to compounding was $207.7 million at December 31, 2013. Additionally, if OCI approves interest payments on surplus notes in the future, Ambac Assurance will also be required to pay interest accrued on certain repurchased surplus notes through the call option exercise dates. The amount of such unpaid interest on repurchased surplus notes is $52.2 million at December 31, 2013.

The Wisconsin Insurance Commissioner has prescribed or permitted additional accounting practices for Ambac Assurance and the Segregated Account of Ambac Assurance. Refer to Note 9 to the Consolidated Financial Statements located in Part II, Item 8 for more information on these prescribed and permitted accounting practices. As a result of these prescribed and permitted practices, Ambac Assurance’s policyholder surplus at December 31, 2013 and December 31, 2012 was lower by $227.3 million and greater by $81.8 million, respectively, than if Ambac Assurance and the Segregated Account had reported such amounts in accordance with NAIC SAP.

The significant differences between U.S. GAAP and SAP are that under SAP:

 

   

Loss reserves are only established for losses on guaranteed obligations that have defaulted in an amount that is sufficient to cover the present value of the anticipated defaulted debt service payments over the expected period of default, less estimated recoveries under subrogation rights (currently discounted at 5.1% as prescribed by OCI). Under U.S. GAAP, in addition to the establishment of loss reserves for defaulted obligations, loss reserves are established (net of U.S GAAP basis unearned

 

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premium reserves) for obligations that have experienced credit deterioration, but have not yet defaulted using a weighted-average risk-free discount rate, currently at 3.2%.

 

   

Mandatory contingency reserves are required based upon the type of obligation insured, whereas U.S. GAAP does not require such a reserve. Releases of the contingency reserves are generally subject to OCI approval and relate to a determination that the held reserves are deemed excessive.

 

   

Investment grade fixed income investments are stated at amortized cost and certain below investment grade fixed income investments are reported at the lower of amortized cost or fair value. Under U.S. GAAP, all bonds are reported at fair value.

 

   

Wholly owned subsidiaries are not consolidated; rather, the equity basis of accounting is utilized and the carrying values of these investments are subject to an admissibility test. When Ambac Assurance’s share of the subsidiaries’ losses exceeds the related carrying amounts of the wholly owned subsidiary, Ambac Assurance discontinues applying the equity method and the investment is reduced to zero. For those subsidiaries that have insufficient claims paying resources and whose obligations are guaranteed by Ambac Assurance, Ambac Assurance records an estimated impairment for probable losses which are in excess of the subsidiaries’ claims paying resources.

 

   

Variable interest entities are not required to be assessed for consolidation. Under U.S. GAAP, a reporting entity that has both the following characteristics is required to consolidate the VIE: a) the power to direct the activities of the VIE that most significantly impact the VIE’s economic performance; and b) the obligation to absorb losses of the VIE or the right to receive benefits from the VIE that could potentially be significant to the VIE. Ambac generally has the obligation to absorb losses of VIEs that could potentially be significant to the VIE as the result of its guarantee of insured obligations issued by VIEs. For certain VIEs Ambac Assurance has the power to direct the most significant activities of the VIE and accordingly consolidates the VIEs under U.S. GAAP.

 

   

All issued surplus notes are included in Policyholder Surplus at an amount equal to par regardless of the amounts received in consideration for issuance of the notes. Under U.S. GAAP, surplus notes are included in long-term debt obligations recorded at their estimated fair value at date of issuance and accrete up to face value via the effective interest method.

 

   

Upfront premiums written are earned on a basis proportionate to the remaining scheduled debt service to the original total principal and interest insured. Installment premiums are reflected in income pro rata over the period covered by the premium payment. Under U.S. GAAP, premium revenues for both upfront and installment premiums are earned over the life of the financial guarantee contract in proportion to the insured principal amount outstanding at each reporting date.

AMBAC UK FINANCIAL RESULTS UNDER UK ACCOUNTING PRINCIPLES

Ambac UK is required to prepare financial statements under the provisions of The Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 relating to insurance companies, and in accordance with the Statement of Recommended Practice on Accounting for Insurance Business issued by the Association of British Insurers dated December 2005 (as amended in December 2006) (collectively referred to as “UK GAAP”).

The deficit in Ambac UK’s shareholder funds under UK GAAP was £165.4 million at December 31, 2013 as compared to a deficit of £198.1 million at December 31, 2012. Notwithstanding the deficit in shareholders’ funds, the directors remain satisfied that the Company has adequate resources to meet its obligations as they fall

 

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due and that the Company remains a going concern. Ambac UK’s improvement in shareholders’ funds was primarily due to the following:

 

   

For the year ended December 31, 2013, net premiums earned were £55.3 million (2012:£ 76.0 million). The year on year decrease in premiums earned is primarily due to the accelerated repayment of certain insured transactions during 2012 which resulted in an acceleration of premium revenues in that year which has not recurred in 2013 to the same degree. In addition earned premium has also fallen due to the normal run-off of the financial guarantee portfolio over time.

 

   

For the year ended December 31, 2013, Ambac UK’s claims expense was £21.6 million (2012: £29.4 million) such that the total loss and loss expense reserves, net of subrogation as of December 31, 2013 totaled £392.1 million (£372.5 million at December 31, 2012). The claims expense in 2013 arose from the following two factors:

 

  i. an increase in expected future claims levels in relation to existing claims, partially offset by

 

  ii. a decrease in technical provisions as a result of the higher discount rate applied in calculating the present value of claims, which in turn is attributable to increases in investment returns during the year.

At December 31, 2013, the carrying value of cash and investments was £297.2 million (2012: £247.0 million). The year-on-year increase in cash and investments is due to the continued receipt of premium income and investment coupons from the Company’s investment portfolio.

Notwithstanding the deficit in shareholders’ funds, the directors remain satisfied that the Company has adequate resources to meet its obligations as they fall due and that the Company remains a going concern.

The significant differences between U.S. GAAP and UK GAAP are that under UK GAAP:

 

   

Loss reserves are only established for losses on guaranteed obligations when, in the judgment of management, a monetary default in the timely payment of debt service is likely to occur, which would result in the Company incurring a loss. A loss provision is established in an amount that is sufficient to cover the present value (currently using a discount rate of 2.47%) of the anticipated defaulted debt service payments over the expected period of default, less estimated recoveries under subrogation rights. The discount rate is equal to the lower of the rate of return on invested assets for either the current year or the period covering the current year plus the four previous years. Under U.S. GAAP, loss reserves are established (net of U.S GAAP basis unearned premium reserves) for obligations that have experienced credit deterioration, but have not yet defaulted using a weighted-average risk-free discount rate, currently at 3.2%.

 

   

Investments in fixed income securities are stated at amortized cost, subject to an other-than-temporary impairment evaluation. Under U.S. GAAP, all bonds are reported at fair value.

 

   

Variable interest entities (“VIE”) are not required to be assessed for consolidation. Under U.S. GAAP, a reporting entity that has both the following characteristics is required to consolidate the VIE: a) the power to direct the activities of the VIE that most significantly impact the VIE’s economic performance; and b) the obligation to absorb losses of the VIE or the right to receive benefits from the VIE that could potentially be significant to the VIE. Ambac generally has the obligation to absorb losses of VIEs that could potentially be significant to the VIE as the result of its guarantee of insured obligations issued by VIEs. For certain VIEs Ambac UK has the power to direct the most significant activities of the VIE and accordingly consolidates the VIEs under U.S. GAAP.

 

   

Upfront premiums written are earned on a basis proportionate to the remaining scheduled debt service to the original total principal and interest insured. Installment premiums are reflected in income pro

 

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rata over the period covered by the premium payment. Under U.S. GAAP, premium revenues for both upfront and installment premiums are earned over the life of the financial guarantee contract in proportion to the insured principal amount outstanding at each reporting date.

Ambac UK is also required to prepare financial statements pursuant to the Accounts and Statements Rules set out in Part I and Part IV of Chapter 9 to IPRU(INS) the Interim Prudential Sourcebook for Insurers, GENPRU the General Prudential Sourcebook and INSPRU the Insurance Prudential Sourcebook (“the Rules”) made by the Prudential Regulatory Authority under section 138 of the Financial Services and Markets Act 2000 (“UK Regulatory”).

At December 31, 2013 Ambac UK had a UK Regulatory capital deficit of £458.4 million (deficit of £346.1 million as at December 31, 2012) in comparison to a regulatory capital requirement of £21.6 million (requirement of £21.6 million as at December 31, 2012). At December 31, 2013, Ambac UK is deficient in terms of compliance with applicable regulatory capital requirements with a regulatory capital shortfall of £480.0 million. The regulators are aware of this deficiency and dialogue between Ambac UK management and its regulators remains ongoing with respect to options for addressing the shortcoming, although such options remain few.

The significant differences between UK GAAP and UK Regulatory accounting policies are that under UK Regulatory:

 

   

No discount is applied in the calculation of the loss provision whereas under UK GAAP such payments are discounted.

 

   

Under UK Regulatory all investments are stated at fair value and are subject to certain counterparty admissibility tests. As of December 31, 2013 the total UK Regulatory deduction for investments in excess of counterparty exposure limits was £51.1 million. Under UK GAAP fixed income investments are stated at amortized cost, subject to an other than temporary impairment evaluation with other investments being held at current value.

NON-GAAP FINANCIAL MEASURES

In addition to reporting the Company’s financial results in accordance with GAAP, the Company reports two non-GAAP financial measures: Operating Earnings and Adjusted Book Value. A non-GAAP financial measure is a numerical measure of financial performance or financial position that excludes (or includes) amounts that are included in (or excluded from) the most directly comparable measure calculated and presented in accordance with GAAP. We are presenting these non-GAAP financial measures because they provide greater transparency and enhanced visibility into the underlying profitability drivers of our business and the impact of certain items that the Company believes will reverse from GAAP book value over time through the GAAP statements of comprehensive income. Operating Earnings and Adjusted Book Value are not substitutes for the Company’s GAAP reporting, should not be viewed in isolation and may differ from similar reporting provided by other companies, which may define non-GAAP measures differently.

The following paragraphs define each non-GAAP financial measure and describe why it is useful. A reconciliation of the non-GAAP financial measure and the most directly comparable GAAP financial measure is also presented below.

Operating Earnings. Operating Earnings eliminates the impact of certain GAAP accounting requirements and includes certain items that the Company has realized or expects to realize in the future, but that are not

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

reported under GAAP. Operating earnings is defined as net income attributable to common shareholders, as reported under GAAP, adjusted on an after-tax basis for the following:

 

   

Elimination of the non-credit impairment fair value gains (losses) on credit derivatives, which is the amount in excess of the present value of the expected estimated credit losses. GAAP fair values include adjustments that are heavily affected by, and in part fluctuate with, changes in market factors such as interest rates and credit spreads, including the market’s perception of Ambac’s credit risk (“Ambac CVA”), which are not expected to result in realized gains or losses. These adjustments allow for all financial guarantee segment contracts to be accounted for consistent with the Financial Services – Insurance Topic of ASC, whether or not they are subject to derivative accounting rules.

 

   

Elimination of the effects of VIEs that were consolidated as a result of benefiting from Ambac’s financial guarantee. These adjustments will eliminate the VIE consolidation and ensure that all financial guarantee segment contracts are accounted for consistent with the provisions of the Financial Services – Insurance Topic of the ASC, whether or not they are subject to consolidation accounting rules.

 

   

Elimination of the amortization of the financial guarantee insurance intangible asset and impairment of goodwill that arose as a result of Ambac’s emergence from bankruptcy and the implementation of Fresh Start reporting. The amount reported in net income attributable to common shareholders represents the amortization of Fresh Start adjustments relating to financial guarantee contracts. These adjustments will ensure that all financial guarantee segment contracts are accounted for consistent with the provisions of the Financial Services – Insurance Topic of the ASC.

 

   

Elimination of the foreign exchange gains (losses) on re-measurement of net premium receivables and loss and loss expense reserves. Long-duration receivables constitute a significant portion of the net premium receivable balance and represent the present value of future contractual or expected collections. Therefore, the current period’s foreign exchange re-measurement gains (losses) are not necessarily indicative of the total foreign exchange gains (losses) that the Company will ultimately recognize.

 

   

Elimination of the gains (losses) relating to Ambac’s CVA embedded in the fair value of derivative contracts other than credit derivatives. Similar to credit derivatives, fair values include the market’s perception of Ambac’s credit risk and this adjustment only allows for such gain or loss when realized.

 

   

Elimination of the gains (losses) on call options on certain surplus notes of Ambac Assurance. Under GAAP accounting, Ambac recorded only a portion of its call options as derivatives. This adjustment allows for all such call options to be accounted for consistently. All call options were either exercised or expired in June 2012. Gains (losses) on call option exercises are not being adjusted for within operating earnings, consistent with other gains and losses.

 

   

Elimination of non-recurring GAAP Fresh Start reporting adjustments.

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

The following table reconciles net income attributable to common shareholders to the non-GAAP measure, Operating Earnings, for all periods presented:

 

     Successor Ambac –     Predecessor Ambac –  
     Eight Months Ended
December 31, 2013
    Four Months Ended
April 30, 2013
    Year Ended
December 31, 2012
 

Net income attributable to common shareholders

   $ 505.2      $ 3,349.0      $ (256.7

Adjustments:

        

Non-credit impairment fair value (gain) loss on credit derivatives

     (165.9     71.6        13.4   

Effect of consolidating financial guarantee VIEs

     223.7        (413.7     25.5   

Insurance intangible amortization

     99.7        —         —     

Foreign exchange (gain) loss from re-measurement of premium receivables and loss and loss expense reserves

     (21.0     11.3        (13.3

Fair value loss on derivative products from Ambac CVA

     46.8        26.7        44.9   

Mark-to-market gain on stand alone derivative surplus note calls

     —         —         (100.7

Fresh Start accounting adjustments

     —         (2,749.7     —     
  

 

 

   

 

 

   

 

 

 

Operating Earnings

   $ 688.5      $ 295.2      $ (286.9
  

 

 

   

 

 

   

 

 

 

The effects of Ambac’s emergence from bankruptcy and Fresh Start had a material impact on the comparability of Operating Earnings between the periods presented. Refer to “Results of Operations” above for discussion of the significant Fresh Start items impacting comparability of Operating Earnings. Operating Earnings for the year ended December 31, 2013 was an increase of $1,270.6 million from ($286.9) million in the year ended December 31, 2012. The variance is primarily due to the benefit in loss and loss expenses for 2013 as compared to an incurred amount in 2012, higher derivative product revenues in 2013, partially offset by lower investment income, lower net premiums earned and higher other than temporary impairment losses.

Adjusted Book Value. Adjusted Book Value eliminates the impact of certain GAAP accounting requirements and includes the addition of certain items that the Company has realized or expects to realize in the future, but that are not reported under GAAP. Adjusted Book Value is defined as Total Ambac Financial Group, Inc. stockholders’ equity (deficit) as reported under GAAP, adjusted for after-tax impact of the following:

 

   

Elimination of the non-credit impairment fair value gains (losses) on credit derivatives, which is the amount in excess of the present value of the expected estimated credit loss. GAAP fair values include adjustments that are heavily affected by, and in part fluctuate with, changes in market factors such as interest rates and credit spreads, including Ambac’s CVA, which are not expected to result in realized gains or losses. These adjustments allow for all financial guarantee segment contracts to be accounted for within Adjusted Book Value consistent with the provisions of the Financial Services—Insurance Topic of the ASC, whether or not they are subject to derivative accounting rules.

 

   

Elimination of the effects of VIEs that were consolidated as a result of benefiting from Ambac’s financial guarantee. These adjustments will eliminate VIE consolidation and ensure that all financial guarantee segment contracts are accounted for within Adjusted Book Value consistent with the provisions of the Financial Services—Insurance Topic of the ASC, whether or not they are subject to consolidation accounting rules.

 

   

Elimination of the financial guarantee insurance intangible asset and goodwill that arose as a result of Ambac’s emergence from bankruptcy and the implementation of Fresh Start reporting. These

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

 

adjustments will ensure that all financial guarantee segment contracts are accounted for within Adjusted Book Value consistent with the provisions of the Financial Services—Insurance Topic of the ASC.

 

   

Elimination of the gains relating to Ambac’s CVA included in the fair value of derivative contracts other than credit derivatives. Similar to credit derivatives, fair values include the market’s perception of Ambac’s credit risk and this adjustment only allows for such gains when realized.

 

   

Addition of the value of the unearned premium reserve on financial guaranty contracts and fees on credit derivative contracts in excess of expected loss to be expensed, net of reinsurance. This adjustment represents the expected future net earned premiums and credit derivative fees, net of expected losses to be expensed, which are not reflected in GAAP equity.

 

   

Elimination of the unrealized gains and losses on the Company’s investments that are recorded as a component of accumulated other comprehensive income (“AOCI”). The AOCI component of the fair value adjustment on the investment portfolio may differ materially from realized gains and losses ultimately recognized by the Company based on the Company’s investment strategy. This adjustment only allows for such gains and losses in Adjusted Book Value when realized.

Ambac has a significant tax net operating loss (“NOL”) that is offset by a full valuation allowance in the GAAP consolidated financial statements. As a result, for purposes of Adjusted Book Value, we utilized a 0% effective tax rate. We maintain a full valuation allowance against our deferred tax asset and recognition of the value of the NOL would be reflected in Adjusted Book Value considering all the facts and circumstances as of the relevant reporting date.

The following table reconciles Total Ambac Financial Group, Inc. stockholders’ equity (deficit) to the non-GAAP measure Adjusted Book Value for all periods presented:

 

     Successor Ambac –     Predecessor Ambac –  
     December 31, 2013     December 31, 2012  

Total Ambac Financial Group, Inc. stockholders’ equity (deficit)

   $ 703.0      $ (3,907.5

Adjustments:

      

Non-credit impairment fair value losses on credit derivatives

     72.8        167.1   

Effect of consolidating financial guarantee variable interest entities

     (372.7     (146.6

Insurance intangible asset and goodwill

     (2,112.5     —    

Ambac CVA on derivative product liabilities (excluding credit derivatives)

     (48.4     (121.9

Net unearned premiums and fees in excess of expected losses

     1,435.2        1,818.7   

Net unrealized investment (gains) losses in Accumulated Other Comprehensive Income

     41.9        (651.3
  

 

 

   

 

 

 

Adjusted Book Value

   $ (280.7   $ (2,841.5
  

 

 

   

 

 

 

The effects of Ambac’s emergence from bankruptcy and Fresh Start had a material impact on the comparability of Adjusted Book Value prior to and after the Fresh Start Date of April 30, 2013. Refer to “Results of Operations” above for discussion of the significant Fresh Start items impacting comparability.

The Adjusted Book Value increase from December 31, 2012 to December 31, 2013 of $2,560.8 million was driven by reorganization benefits from Ambac’s emergence from bankruptcy and Operating Earnings for the year ended December 31, 2013, partially offset by reductions in unearned premiums in excess of expected losses previously recognized in Adjusted Book Value. The reductions in unearned premiums in excess of expected

 

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Item 7. Management’s Discussion and Analysis of Financial Conditions and Results of Operations

 

losses recognized in Adjusted Book Value occurred due to premiums earned in 2013 and higher expected losses on certain financial guarantee contracts as of December 31, 2013.

SPECIAL PURPOSE AND VARIABLE INTEREST ENTITIES

Please refer to Note 2, “Basis of Presentation and Significant Accounting Policies” and Note 4, “Special Purpose Entities, Including Variable Interest Entities” of the Consolidated Financial Statements, located in Item 8 of this Form 10-K, for information regarding special purpose and variable interest entities.

ACCOUNTING STANDARDS

Please refer to Note 2, “Basis of Presentation and Significant Accounting Policies” of the Consolidated Financial Statements, located in Item 8 of this Form 10-K, for a discussion of the impact of recent accounting pronouncements on Ambac’s financial condition and results of operations.

Item 7A. Quantitative and Qualitative Disclosures About Market Risk

Market risk represents the potential for losses that may result from changes in the value of a financial instrument as a result of changes in market conditions. The primary market risks that would impact the value of Ambac’s financial instruments are interest rate risk, spread risk, and foreign currency exchange risk. Below we discuss each of these risks and the specific types of financial instruments impacted. Senior managers are responsible for developing and applying methods to measure risk. The estimation of potential losses arising from adverse changes in market conditions is a key element in managing market risk. Ambac utilizes various systems, models and sensitivity scenarios to monitor and manage market risk. These models include estimates, made by management, which utilize current and historical market information. The valuation results from these models could differ materially from amounts that would actually be realized in the market.

Interest Rate Risk:

Financial instruments for which fair value may be affected by changes in interest rates consist primarily of fixed income investment securities, loans, investment agreements, long-term debt and interest rate derivatives. Fixed income investment securities that are guaranteed by Ambac and were purchased as part of Ambac’s loss remediation strategy are held for the purpose of reducing future financial guarantee claim payments. Accordingly, such securities are excluded from the company’s interest rate sensitivity measures. The following table summarizes the estimated change in fair value (based primarily on the valuation methodology discussed in Note 10 to the Consolidated Financial Statements located in Item II of this Form 10-K) on these financial instruments, assuming immediate changes in interest rates at specified levels at December 31, 2013:

 

Change in Interest Rates

   Estimated
Change
in Net
Fair Value
    Estimated
Net
Fair Value
 
($ in millions)             

300 basis point rise

   $ (111   $ 3,427   

200 basis point rise

     (70     3,468   

100 basis point rise

     (31     3,507   

Base scenario

     —         3,538   

100 basis point decline (1)

     (10     3,528   

200 basis point decline (1)

     (96     3,442   

 

(1) Incorporates an interest rate floor of 0%

 

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Item 7A. Quantitative and Qualitative Disclosures About Market Risk

 

Due to the low interest rate environment as of December 31, 2013, stress scenarios involving interest rate declines greater than 200 basis points are not meaningful to the Company’s portfolios.

Changes in fair value resulting from changes in interest rates are driven primarily by the impact of interest rate shifts on the investment portfolio (which declines in value as rates increase) and the interest rate swap portfolio (which is generally positioned to increase in value as rates increase). Interest rate increases would also have a negative economic impact on expected future claim payments on the financial guarantee portfolio.

The interest rate derivatives portfolio is managed with the goal of retaining some interest rate sensitivity as an economic hedge against the effects of rising interest rates elsewhere in the Company, including on Ambac’s financial guarantee exposures (the “macro-hedge”). The interest rate sensitivity in this portfolio has been reduced over the course of 2013 as interest rate exposure in the financial guarantee business has declined. The incremental interest rate sensitivity of the interest rate swap portfolio attributable to the macro- hedge position would produce mark-to-market gains or losses of approximately $0.7 million for a 1 basis point parallel shift in USD swap rates up or down at December 31, 2013.

The estimation of potential losses arising from adverse changes in market relationships, known as VaR, is a consideration in management’s monitoring of interest rate risk for the interest rate swap portfolio. Ambac has developed a VaR methodology to estimate potential losses using a one day time horizon and a 99% confidence level. This means that Ambac would expect to incur losses due to changes in interest rates greater than that predicted by VaR estimates only once in every 100 trading days, or about 2.5 times a year. Ambac’s methodology estimates VaR using a 300-day historical “look back” period. This means that changes in market values are simulated using market inputs from the past 300 days. At December 31, 2013, Ambac’s VaR, for its interest rate derivative portfolio averaged approximately $18.8 million. Ambac’s VaR ranged from a high of $28.3 million to a low of $14.8 million for the year ended December 31, 2013. These VaR measures are intended to focus on the impact of observable market rates and therefore exclude fair value adjustments made by management to incorporate Ambac or counterparty credit risk. Ambac supplements its VaR methodology, which it believes is a good risk management tool in normal markets, by performing scenario testing to measure the potential for losses in volatile markets. These scenario tests include parallel and non-parallel shifts in the benchmark interest rate curve.

Credit Spread Risk:

Financial instruments that may be adversely affected by changes in spreads include Ambac’s outstanding credit derivative contracts, certain interest rate swap contracts, and investment assets. Changes in spreads are generally caused by changes in the market’s perception of the credit quality of the underlying obligor. Market liquidity and prevailing risk premiums demanded by market participants are also reflected in spreads and impact valuations.

The following table summarizes the estimated change in fair values on Successor Ambac’s credit derivative contracts assuming immediate parallel shifts in reference obligation credit spreads at December 31, 2013:

 

($ in millions)

Change in Underlying Spreads

   Estimated
Change in
Fair Value
    Fair Value  

250 basis point widening

   $ (41   $ (135

50 basis point widening

     (8     (102

Base scenario

     —         (94

50 basis point narrowing

     8        (86

250 basis point narrowing

     26        (68

 

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Item 7A. Quantitative and Qualitative Disclosures About Market Risk

 

Also included in the fair value of credit derivative liabilities is the effect of Ambac’s creditworthiness, which reflects market perception of Ambac’s ability to meet its obligations. Incorporating estimates of Ambac’s credit valuation adjustment into the determination of fair value has resulted in a $39.0 million reduction to the credit derivatives liability as of December 31, 2013 resulting in a 29.2% reduction of the credit derivative liability as measured before considering Ambac credit risk. Refer to Note 10 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K for further information on measurement of the credit valuation adjustment.

The fair value of interest rate swaps may be affected by changes to the credit valuation adjustment attributable to the risk of counterparty or Ambac non-performance. Generally, the need for a counterparty (or Ambac) credit valuation adjustment is mitigated by the existence of collateral posting agreements under which adequate collateral has been posted. Derivative contracts entered into with financial guarantee customers are not typically subject to collateral posting agreements. Valuation adjustments for counterparty credit risk were not significant as of December 31, 2013. Estimates of Ambac’s credit valuation adjustment included in the fair value of interest rate swaps reduced the derivative liability fair value by $48.4 million as of December 31, 2013.

The following table summarizes the estimated change in fair values on Successor Ambac’s credit derivative and interest rate swap liabilities assuming immediate shifts in Ambac credit spreads used to determine the CVA at December 31, 2013:

 

Change in Ambac Credit Spreads

   Estimated
Change in
Fair Value
    Fair Value  
($ in millions)             

250 basis point widening

   $ 17      $ (237

50 basis point widening

     3        (251

Base scenario

     —         (254

50 basis point narrowing

     (4     (258

250 basis point narrowing

     (20     (274

Ambac’s fixed income investment portfolio contains securities with different sensitivities to and volatility of spreads. Fixed income investment securities that are guaranteed by Ambac and were purchased as part of Ambac’s loss remediation strategy are held for the purpose of reducing future financial guarantee claim payments. Accordingly, such securities are excluded from the company’s spread sensitivity measures. The following table summarizes the estimated change in fair values of Successor Ambac’s fixed income investment portfolio (excluding loss remediation positions) assuming immediate shifts in credit spreads across holdings at December 31, 2013. It is more likely that actual changes in credit spreads will vary by security.

 

Change in Spreads

   Estimated
Change in
Fair Value
    Fair Value  
($ in millions)             

250 basis point widening

   $ (467   $ 4,481   

50 basis point widening

     (100     4,848   

Base scenario

     —         4,948   

50 basis point narrowing

     99        5,047   

250 basis point narrowing

     488        5,436   

 

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Item 7A. Quantitative and Qualitative Disclosures About Market Risk

 

Foreign Exchange Risk:

Ambac has financial instruments denominated in currencies other than the U.S. dollar, primarily pounds sterling and euros. These financial instruments are primarily invested assets, and assets and liabilities of Ambac UK and Ambac’s consolidated VIEs. The following table summarizes the estimated net change in fair value of these financial instruments assuming immediate shifts in foreign exchange rates as of December 31, 2013.

 

($ in millions)

   Change in Foreign Exchange Rates Against U.S. Dollar  
     20% Decrease     10% Decrease     10% Increase      20% Increase  

Estimated change in fair value

   $ (124.3   $ (62.1   $ 62.1       $ 124.3   

 

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Item 8. Financial Statements and Supplementary Data.

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders

Ambac Financial Group, Inc.:

We have audited Ambac Financial Group, Inc.’s (the “Company” or “Ambac”) internal control over financial reporting as of December 31, 2013 (Successor Company), based on criteria established in Internal Control–Integrated Framework (1992)  issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Control Over Financial Reporting . Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, Ambac maintained, in all material respects, effective internal control over financial reporting as of December 31, 2013 (Successor Company), based on criteria established in Internal Control – Integrated Framework (1992)  issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Ambac as of December 31, 2013 (Successor Company) and December 31, 2012 (Predecessor Company), and the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity (deficit), and cash flows for the eight month period ended December 31, 2013 (Successor Company), four month period ended April 30, 2013 (Predecessor Company) and the year ended December 31, 2012 (Predecessor Company), and our report dated March 3, 2014, expressed an unqualified opinion on those consolidated financial statements. The opinion refers to Note 1, which describes factors that raise substantial doubt about Ambac’s ability to continue as a going concern. Management’s plans in

 

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regard to these matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

/s/ KPMG LLP
New York, New York
March 3, 2014

 

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Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders

Ambac Financial Group, Inc.:

We have audited the accompanying consolidated balance sheets of Ambac Financial Group, Inc. and subsidiaries (the “Company”) as of December 31, 2013 (Successor Company) and December 31, 2012 (Predecessor Company), and the related consolidated statements of operations and comprehensive income (loss), stockholders’ equity (deficit) and cash flows for the eight month period ended December 31, 2013 (Successor Company), four month period ended April 30, 2013 (Predecessor Company) and the year ended December 31, 2012 (Predecessor Company). In connection with our audits of the consolidated financial statements, we also have audited the related financial statement schedules in this Form 10-K. These consolidated financial statements and financial statement schedules are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedules based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Ambac Financial Group, Inc. and subsidiaries as of December 31, 2013 (Successor Company) and December 31, 2012 (Predecessor Company), and the results of their operations and their cash flows for the eight-month period ended December 31, 2013 (Successor Company), four-month period ended April 30, 2013 (Predecessor Company) and year ended December 31, 2012, in conformity with U.S. generally accepted accounting principles. Also in our opinion, the related financial statement schedules, when considered in relation to the consolidated financial statements taken as a whole, present fairly, in all material respects, the information set forth therein.

The accompanying consolidated financial statements and financial statement schedules have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the significant deterioration of the guaranteed portfolio has adversely impacted the financial condition of the Company’s operating subsidiary, Ambac Assurance Corporation resulting in significant regulatory oversight by the Office of the Commissioner of Insurance of the State of Wisconsin, including the rehabilitation of a segregated account of Ambac Assurance Corporation. This raises substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 1. The consolidated financial statements and financial statement schedules do not include any adjustments that might result from the outcome of these uncertainties.

As discussed in Note 2 to the consolidated financial statements, the Company filed for relief under Chapter 11 of the United States Bankruptcy Code on November 8, 2010. The Company’s plan of reorganization became effective and the Company emerged from bankruptcy protection on April 30, 2013. In connection with their emergence from bankruptcy, the Successor Company, Ambac Financial Group, Inc. adopted fresh-start reporting in conformity with ASC Topic 852, “Reorganizations”, effective April 30, 2013. The 2013 Successor Period and the 2013 Predecessor Period are distinct reporting periods and accordingly; the Successor Company’s consolidated financial statements are not comparable to the Predecessor Company’s consolidated financial statements.

 

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We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company's internal control over financial reporting as of December 31, 2013, based on criteria established in  Internal Control - Integrated Framework (1992)  issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report dated March 3, 2014 expressed an unqualified opinion on the effectiveness of the Company's internal control over financial reporting.

 

/s/ KPMG LLP
New York, New York
March 3, 2014

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Consolidated Balance Sheets

 

    Successor Ambac     Predecessor Ambac  
(Dollars in Thousands)   December 31, 2013     December 31, 2012  

Assets:

     

Investments:

     

Fixed income securities, at fair value (amortized cost of $5,927,254 in 2013 and $4,751,824 in 2012)

  $ 5,885,316      $ 5,402,395   

Fixed income securities pledged as collateral, at fair value (amortized cost of $126,196 in 2013 and $265,517 in 2012)

    126,223        265,779   

Short-term investments, at fair value (amortized cost of $271,118 in 2013 and $661,219 in 2012)

    271,119        661,658   

Other investments, at fair value

    241,069        100   
 

 

 

   

 

 

 

Total investments

    6,523,727        6,329,932   

Cash

    77,370        43,837   

Receivable for securities

    14,450        761   

Investment income due and accrued

    37,663        39,742   

Premium receivables

    1,453,021        1,620,621   

Reinsurance recoverable on paid and unpaid losses

    135,711        159,086   

Deferred ceded premium

    145,529        177,893   

Subrogation recoverable

    498,478        497,346   

Deferred acquisition costs

    —         199,160   

Loans

    6,179        9,203   

Derivative assets

    77,711        126,106   

Insurance intangible asset

    1,597,965        —    

Goodwill

    514,511        —    

Other assets

    35,927        39,715   

Variable interest entity assets:

     

Fixed income securities, at fair value

    2,475,182        2,261,294   

Restricted cash

    17,498        2,290   

Investment income due and accrued

    1,365        4,101   

Loans (includes $13,398,895 and $15,359,073 at fair value)

    13,398,895        15,568,711   

Intangible assets

    76,140        —    

Other assets

    19,617        5,467   
 

 

 

   

 

 

 

Total assets

  $ 27,106,939      $ 27,085,265   
 

 

 

   

 

 

 

Liabilities and Stockholders’ Equity (Deficit):

     

Liabilities:

     

Liabilities subject to compromise

  $ —       $ 1,704,904   

Unearned premiums

    2,255,680        2,778,401   

Losses and loss expense reserve

    5,968,712        6,619,486   

Ceded premiums payable

    85,424        94,527   

Obligations under investment agreements

    359,070        356,091   

Obligations under investment repurchase agreements

    —          5,926   

Deferred taxes

    2,199        1,586   

Current taxes

    738        96,778   

Long-term debt

    963,178        150,170   

Accrued interest payable

    294,817        228,835   

Derivative liabilities

    253,898        531,315   

Other liabilities

    67,377        102,488   

Payable for securities purchased

    4,654        25   

Variable interest entity liabilities:

     

Accrued interest payable

    722        3,618   

Long-term debt (includes $14,091,753 and $15,200,538 at fair value)

    14,091,753        15,436,008   

Derivative liabilities

    1,772,306        2,221,781   

Other liabilities

    7,989        293   
 

 

 

   

 

 

 

Total liabilities

    26,128,517        30,332,232   
 

 

 

   

 

 

 

Stockholders’ equity (deficit):

     

Successor preferred stock, par value $0.01 per share; authorized shares—20,000,000; issued and outstanding shares—none at December 31, 2013

    —         —    

Predecessor preferred stock, par value $0.01 per share; authorized shares—4,000,000; issued and outstanding shares—none at December 31, 2012

    —         —    

Successor common stock, par value $0.01 per share; authorized shares—130,000,000; issued and outstanding shares—45,003,461 at December 31, 2013

    450        —    

Predecessor common stock, par value $0.01 per share; authorized shares—650,000,000; issued and outstanding shares—308,016,674 at December 31, 2012

    —         3,080   

Additional paid-in capital

    185,672        2,172,027   

Accumulated other comprehensive income

    11,661        625,385   

Retained earnings (accumulated deficit)

    505,219        (6,297,264

Successor common stock held in treasury at cost, 937 shares at December 31, 2013

    (19     —    

Predecessor common stock held in treasury at cost, 5,580,657 shares at December 31, 2012

    —         (410,755
 

 

 

   

 

 

 

Total Ambac Financial Group, Inc. stockholders’ equity (deficit)

    702,983        (3,907,527

Noncontrolling interest

    275,439        660,560   
 

 

 

   

 

 

 

Total stockholders’ equity (deficit)

    978,422        (3,246,967
 

 

 

   

 

 

 

Total liabilities and stockholders’ equity (deficit)

  $ 27,106,939      $ 27,085,265   
 

 

 

   

 

 

 

See accompanying Notes to Consolidated Financial Statements.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Consolidated Statements of Total Comprehensive Income

 

                Successor Ambac                              Predecessor Ambac              

(Dollars in Thousands)

  Period from May 1
through December 31, 2013
    Period from January 1
through April 30, 2013
    Year Ended
December 31, 2012
 

Revenues:

       

Net premiums earned

  $ 213,518      $ 130,000      $ 414,604   

Net investment income:

       

Securities available-for-sale and short-term

    142,866        116,371        382,902   

Other investments

    3,580        369        —    
 

 

 

   

 

 

   

 

 

 

Total net investment income

    146,446        116,740        382,902   

Other-than-temporary impairment losses:

       

Total other-than-temporary impairment losses

    (47,418     (467     (15,659

Portion of loss recognized in other comprehensive income

    654        —         9,669   
 

 

 

   

 

 

   

 

 

 

Net other-than-temporary impairment losses recognized in earnings

    (46,764     (467     (5,990

Net realized investment gains

    4,467        53,305        72,101   

Change in fair value of credit derivatives:

       

Realized gains and other settlements

    9,778        3,444        13,713   

Unrealized gains (losses)

    183,091        (63,828     (22,932
 

 

 

   

 

 

   

 

 

 

Net change in fair value of credit derivatives

    192,869        (60,384     (9,219

Derivative products

    114,771        (33,735     (125,004

Net realized losses on extinguishment of debt

    —         —         (177,580

Other income

    4,364        8,363        106,098   

(Loss) income on variable interest entities

    (48,623     426,566        27,777   
 

 

 

   

 

 

   

 

 

 

Total revenues before expenses and reorganization items

    581,048        640,388        685,689   
 

 

 

   

 

 

   

 

 

 

Expenses:

       

Losses and loss (benefit) expenses

    (185,138     (38,056     683,630   

Insurance intangible amortization

    99,658        —         —    

Underwriting and operating expenses

    68,769        44,566        139,029   

Interest expense

    84,950        31,025        112,320   
 

 

 

   

 

 

   

 

 

 

Total expenses before reorganization items

    68,239        37,535        934,979   
 

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations before reorganization items

    512,809        602,853        (249,290

Reorganization items

    493        (2,745,180     7,215   
 

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations

    512,316        3,348,033        (256,505

Provision for income taxes

    7,514        755        2,849   
 

 

 

   

 

 

   

 

 

 

Net income (loss)

  $ 504,802      $ 3,347,278      $ (259,354

Less: net loss attributable to the noncontrolling interest

    (417     (1,771     (2,676
 

 

 

   

 

 

   

 

 

 

Net income (loss) attributable to common shareholders

  $ 505,219      $ 3,349,049      $ (256,678
 

 

 

   

 

 

   

 

 

 

Other comprehensive income (loss), after tax:

       

Net income (loss)

  $ 504,802      $ 3,347,278      $ (259,354
 

 

 

   

 

 

   

 

 

 

Unrealized (loss) gain on securities, net of deferred income taxes of $0

    (41,910     175,347        166,252   

Gain (loss) on foreign currency translation, net of deferred income taxes of $0

    43,165        (428     (540

Changes to postretirement benefit, net of tax of $0

    10,847       185        (3,792
 

 

 

   

 

 

   

 

 

 

Total other comprehensive income, net of tax

    12,102        175,104        161,920   
 

 

 

   

 

 

   

 

 

 

Total comprehensive income (loss)

    516,904        3,522,382        (97,434

Less: comprehensive loss attributable to the noncontrolling interest:

       

Net loss

    (417     (1,771     (2,676

Currency translation adjustments

    441        229        (206
 

 

 

   

 

 

   

 

 

 

Total comprehensive income (loss) attributable to Ambac Financial Group, Inc.

    516,880        3,523,924        (94,552
 

 

 

   

 

 

   

 

 

 

Net income (loss) per share attributable to Ambac Financial Group, Inc. common shareholders

  $ 11.23      $ 11.07      $ (0.85
 

 

 

   

 

 

   

 

 

 

Net income (loss) per diluted share attributable to Ambac Financial Group, Inc. common shareholders

  $ 10.91      $ 11.07      $ (0.85
 

 

 

   

 

 

   

 

 

 

See accompanying Notes to Consolidated Financial Statements.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Consolidated Statements of Stockholders’ Equity

 

          Ambac Financial Group, Inc.        

(Dollars in Thousands)

  Total     Retained
Earnings
    Accumulated
Other
Comprehensive
Income
    Preferred
Stock
    Common
Stock
    Paid-in
Capital
    Common
Stock Held
in Treasury,
at Cost
    Noncontrolling
Interest
 

Successor Ambac

               

Balance at May 1, 2013

  $ 275,415      $ —       $ —       $ —        $  —       $ —       $ —       $ 275,415   

Issuance of new equity in connection with emergence from Chapter 11

  $ 185,000      $ —       $ —       $  —        $ 450      $ 184,550      $ —       $ —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at May 1, 2013

    460,415        —         —         —         450        184,550        —         275,415   

Total comprehensive income

    516,904        505,219        11,661                24   

Warrants exercised

    16                16        —      

Cost of shares acquired

    (19               (19  

Stock-based compensation

    1,106                1,106       
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2013

  $ 978,422      $ 505,219      $ 11,661      $ —        $ 450      $ 185,672      $ (19   $ 275,439   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

 

 

          Ambac Financial Group, Inc.        

(Dollars in Thousands)

  Total     Accumulated
Deficit
    Accumulated
Other
Comprehensive
Income
    Preferred
Stock
    Common
Stock
    Paid-in
Capital
    Common
Stock Held
in Treasury,
at Cost
    Noncontrolling
Interest
 

Predecessor Ambac

               

Balance at January 1, 2013

  ($ 3,246,967   ($ 6,297,264   $ 625,385      $  —       $ 3,080      $ 2,172,027      ($ 410,755   $ 660,560   

Total comprehensive income

    3,522,382        3,349,049        174,875                (1,542

Stock-based compensation

    (60     (60            

Shares issued under equity plans

    60                  60     

Elimination of Predecessor Ambac Shareholder equity accounts and noncontrolling interest adjustment

    —         2,948,275        (800,260       (3,080     (2,172,027     410,695        (383,603
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at April 30, 2013

  $ 275,415      $ —       $ —       $  —       $ —       $ —       $ —       $ 275,415   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
          Ambac Financial Group, Inc.        

(Dollars in Thousands)

  Total     Accumulated
Deficit
    Accumulated
Other
Comprehensive
Income
    Preferred
Stock
    Common
Stock
    Paid-in
Capital
    Common
Stock Held
in Treasury,
at Cost
    Noncontrolling
Interest
 

Predecessor Ambac

               

Balance at January 1, 2012

  ($ 3,149,533   ($ 6,039,922   $ 463,259      $  —       $ 3,080      $ 2,172,027      ($ 411,419   $ 663,442   

Total comprehensive loss

    (97,434     (256,678     162,126                (2,882

Stock-based compensation

    (664     (664            

Shares issued under equity plans

    664                  664     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2012

  ($ 3,246,967   ($ 6,297,264   $ 625,385      $  —       $ 3,080      $ 2,172,027      ($ 410,755   $ 660,560   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying Notes to Consolidated Financial Statements.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Consolidated Statements of Cash Flows

 

     Successor Ambac     Predecessor Ambac  
     Period from May 1
through December 31,
2013
    Period from January 1
through April 30,
2013
    Year Ended
December 31,

2012
 
(Dollars in Thousands)                   

Cash flows from operating activities:

        

Net income (loss) attributable to common shareholders

   $ 505,219      $ 3,349,049      $ (256,678

Noncontrolling interest in subsidiaries’ earnings

     (417     (1,771     (2,676
  

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 504,802      $ 3,347,278      $ (259,354

Adjustments to reconcile net income (loss) to net cash used in operating activities:

        

Depreciation and amortization

     1,980        974        3,066   

Amortization of bond premium and discount

     (34,698     (60,146     (189,402

Reorganization items

     493        (2,745,180     7,215   

Share-based compensation

     1,106        —         —    

Deferred income taxes

     619        (6     1,586   

Current income taxes

     5,148        (101,188     1,069   

Deferred acquisition costs

     —         14,207        24,350   

Unearned premiums, net

     (205,951     (172,549     (635,346

Losses and loss expenses, net

     (86,838     (43,284     (261,304

Ceded premiums payable

     (7,044     (2,059     (21,028

Investment income due and accrued

     298        1,781        5,586   

Premium receivables

     78,610        88,990        407,858   

Accrued interest payable

     58,046        23,953        89,276   

Amortization of intangible assets

     99,658        —         —    

Net mark-to-market (gains) losses

     (183,091     63,828        22,932   

Net realized investment gains

     (4,467     (53,305     (72,101

Losses on extinguishment of debt

     —         —         177,580   

Other-than-temporary impairment charges

     46,764        467        5,990   

Variable interest entity activities

     48,623        (426,566     (27,777

Other, net

     (137,150     58,455        105,906   
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) operating activities

     186,908        (4,350     (613,898
  

 

 

   

 

 

   

 

 

 

Cash flows from investing activities:

        

Proceeds from sales of bonds

     942,943        311,837        592,672   

Proceeds from matured bonds

     613,345        310,218        1,109,468   

Purchases of bonds

     (2,213,116     (286,633     (798,740

Proceeds from sales of other invested assets

     90,067        —         —    

Purchases of other invested assets

     (136,986     (164,368     —    

Change in short-term investments

     455,495        (64,956     121,413   

Loans, net

     1,103        1,920        9,793   

Change in swap collateral receivable

     7,849        (8,863     43,635   

Other, net

     (8,210     19,828        (40,261
  

 

 

   

 

 

   

 

 

 

Net cash (used in) provided by investing activities

     (247,510     118,983        1,037,980   
  

 

 

   

 

 

   

 

 

 

Cash flows from financing activities:

        

Paydowns of variable interest entity secured borrowing

     (9,069     (5,519     (21,012

Proceeds from warrant exercise

     16        —         —    

Payments for investment and repurchase agreement draws

     (5,926     —         (186,786

Payments for extinguishment of long-term debt

     —         —         (188,446
  

 

 

   

 

 

   

 

 

 

Net cash used in financing activities

     (14,979     (5,519     (396,244
  

 

 

   

 

 

   

 

 

 

Net cash flow

     (75,581     109,114        27,838   

Cash at beginning of period

     152,951        43,837        15,999   
  

 

 

   

 

 

   

 

 

 

Cash at end of period

   $ 77,370      $ 152,951      $ 43,837   
  

 

 

   

 

 

   

 

 

 

Supplemental disclosure of cash flow information:

        

Cash paid during the period for:

        

Income taxes

   $ 1,656      $ 102,129      $ 1,493   

Interest on variable interest entity secured borrowing

   $ 170      $ 276      $ 1,572   

Interest on investment agreements

   $ 2,125      $ 1,726      $ 7,264   

Cash payments related to reorganization items:

        

Professional fees paid for services rendered in connection with the Chapter 11 proceeding

   $ 15,546      $ 3,860      $ 9,141   

See accompanying Notes to Consolidated Financial Statements.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

1.        BACKGROUND AND BUSINESS DESCRIPTION

Ambac Financial Group, Inc. (“Ambac” or the “Company”), headquartered in New York City, is a financial services holding company incorporated in the state of Delaware on April 29, 1991. On May 1, 2013 (the “Effective Date”), Ambac emerged from Chapter 11 bankruptcy protection when the Second Modified Fifth Amended Plan of Reorganization of Ambac Financial Group, Inc. (the “Reorganization Plan”) became effective. On December 26, 2013, the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) entered an order of final decree closing Ambac’s Chapter 11 case. Ambac filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”) in the Bankruptcy Court on November 8, 2010 as a result of losses incurred since the beginning of the financial crisis in 2007.

Ambac has two reportable business segments: Financial Guarantee and Financial Services.

Ambac’s financial guarantee business segment is conducted through its primary operating subsidiary, Ambac Assurance Corporation (“Ambac Assurance”), and its wholly owned subsidiary, Ambac Assurance UK Limited (“Ambac UK”). Insurance policies issued by Ambac Assurance and Ambac UK guarantee payment when due of the principal and interest on the obligations guaranteed. Ambac Assurance also has another wholly-owned financial guarantee subsidiary, Everspan Financial Guarantee Corp. (“Everspan”), which has been in runoff since its acquisition in 1997. The deterioration of Ambac Assurance’s financial condition resulting from losses in its insured portfolio since 2007 has prevented Ambac Assurance from being able to write new business. An inability to write new business has and will continue to negatively impact Ambac’s future operations and financial results. Ambac Assurance’s ability to pay dividends and, as a result, Ambac’s liquidity, have been significantly restricted by the deterioration of Ambac Assurance’s financial condition, by the rehabilitation of the Segregated Account and by the terms of the Settlement Agreement, dated as of June 7, 2010, by and among Ambac Assurance, Ambac Credit Products LLC (“ACP”), Ambac and counterparties to credit default swaps with ACP that were guaranteed by Ambac Assurance. Ambac Assurance is also restricted in its ability to pay dividends pursuant to regulatory restrictions, the terms of its Auction Market Preferred Shares, and the terms of agreements entered into with the Segregated Account. It is highly unlikely that Ambac Assurance will be able to make dividend payments to Ambac for the foreseeable future.

Ambac’s financial services business segment is conducted through its financial services subsidiaries, which provide financial and investment products, including investment agreements, funding conduits and interest rate swaps, principally to the clients of its financial guarantee business. Ambac Assurance insured all of the obligations of its financial services subsidiaries. These businesses are in active runoff, which is being effectuated by means including transaction terminations, settlements, and scheduled amortization of contracts. The Financial Services business also maintains interest rate derivatives to mitigate exposure to floating rate insured obligations in the Financial Guarantee segment.

In March 2010, Ambac Assurance established a segregated account pursuant to Wisconsin Stat. §611.24(2) (the “Segregated Account”) to segregate certain segments of Ambac Assurance’s liabilities. The Office of the Commissioner of Insurance for the State of Wisconsin (“OCI” (which term shall be understood to refer to such office as regulator of Ambac Assurance and to refer as well to the Commissioner of Insurance for the State of Wisconsin as rehabilitator of the Segregated Account (the “Rehabilitator”), as the context requires)) commenced rehabilitation proceedings with respect to the Segregated Account (the “Segregated Account Rehabilitation Proceedings”) in order to permit the OCI to facilitate an orderly run-off and/or settlement of the liabilities allocated to the Segregated Account pursuant to the provisions of the Wisconsin Insurers Rehabilitation and Liquidation Act. The Rehabilitator is Theodore Nickel, the Commissioner of Insurance of the State of Wisconsin. Ambac Assurance is not, itself, in rehabilitation proceedings.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Following emergence from bankruptcy, Ambac’s primary goal is to maximize shareholder value through executing the following key strategies:

 

   

Increasing the value of its investment in Ambac Assurance by actively managing its assets and liabilities with a focus on maximizing risk-adjusted investment portfolio returns and mitigating or remediating losses on poorly performing transactions through executing policy commutations, repurchasing liabilities at a discount, pursuing recoveries of losses through litigation and the exercise of contractual and legal rights, restructuring transactions; and other means; and

 

   

Pursuing new financial services businesses, apart from Ambac Assurance. These new businesses may include advisory, asset servicing, asset management and/or insurance.

The execution of Ambac’s principal strategy with respect to liabilities and associated rights allocated to the Segregated Account is subject to the authority of the Rehabilitator to control the management of the Segregated Account. In exercising such authority, the Rehabilitator will act for the benefit of policyholders, and will not take into account the interests of Ambac. Similarly, by operation of the contracts executed in connection with the establishment, and subsequent rehabilitation, of the Segregated Account, the Rehabilitator retains rights to oversee and approve certain actions taken in respect of Ambac Assurance. This oversight by the Rehabilitator could impair Ambac’s ability to execute certain of its strategies.

Although we are exploring new business opportunities for Ambac, no assurance can be given that we will be able to identify or execute the acquisition or development of any new business. In addition there can be no assurance that we will be able to generate or obtain the financial and other resources that may be required to finance the acquisition or development of any new business. Due to these factors, as well as uncertainties relating to the ability of Ambac Assurance to deliver value to Ambac, the value of our securities is speculative.

As a result of uncertainties associated with the aforementioned regulatory oversight, management has concluded that there is substantial doubt about the ability of the Company to continue as a going concern. The Company’s financial statements as of and for the periods ending December 31, 2013 and 2012 are prepared assuming the Company continues as a going concern and do not include any adjustment that might result from its inability to continue as a going concern.

Chapter 11 Reorganization of Ambac:

The Reorganization Plan reflects a resolution of certain issues (the “Amended Plan Settlement”) among the Company, the statutory committee of creditors appointed by the United States Trustee on November 17, 2010 (the “Creditors’ Committee”), Ambac Assurance, the Segregated Account and OCI related to (i) the net operating loss carry forwards (“NOLs”) of the consolidated tax group of which the Company is the parent and Ambac Assurance is a member (the “Ambac Consolidated Group”), (ii) certain tax refunds received in respect thereof and (iii) the sharing of expenses between the Company and Ambac Assurance. The terms of the Amended Plan Settlement are memorialized in that certain Mediation Agreement dated September 21, 2011 (the “Mediation Agreement”) among such parties. In accordance with the Amended Plan Settlement, the Company shall retain ownership of Ambac Assurance, and except as otherwise approved by OCI, the Company shall use its best efforts to preserve the use of NOLs as contemplated by the Amended Plan Settlement.

Pursuant to the Amended Plan Settlement, (i) the Company, Ambac Assurance and certain affiliates entered into an amended and restated tax sharing agreement (the “Amended TSA”), (ii) the Company, Ambac Assurance and certain affiliates entered into an expense sharing and cost allocation agreement (the “Cost Allocation Agreement”) and (iii) the Company, Ambac Assurance, the Segregated Account and OCI entered into an amendment of the Cooperation Agreement (the “Cooperation Agreement Amendment”).

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The Amended TSA addresses certain intercompany tax issues including, but not limited to, the allocation and use of NOLs by the Company, Ambac Assurance and their respective subsidiaries. Refer to Note 16 for further discussion of the Amended TSA.

The Cost Allocation Agreement provides for the allocation of costs and expenses among the Company, Ambac Assurance and certain affiliates. Additionally, the Cost Allocation Agreement requires Ambac Assurance to reimburse reasonable operating expenses incurred by the Company, subject to an annual $5,000 cap, which, during 2017, shall be reduced to a $4,000 per year cap, only with the approval by the Rehabilitator.

The Cooperation Agreement Amendment provides for the Rehabilitator to have certain rights with respect to (a) the tax positions taken by the Company in its consolidated tax return; (b) the acceptance by Ambac Assurance of the repayment of intercompany loans or the modification of the terms thereof; (c) changes by Ambac Assurance in the assumptions or vendors utilized in determining loss reserves determined in accordance with Statutory Accounting Principles; and (d) changes to Ambac Assurance’s investment policy and transfer of the investment management function for Ambac Assurance’s investment portfolio.

As provided for in the Reorganization Plan, Ambac’s Amended and Restated Certificate of Incorporation and revised Bylaws became effective on the Effective Date. Pursuant to the Amended and Restated Certificate of Incorporation of Ambac, Ambac is authorized to issue 150,000,000 shares of capital stock, consisting of 130,000,000 shares of common stock, par value $0.01 per share and 20,000,000 shares of preferred stock, par value $0.01 per share. In accordance with the Reorganization Plan and the bylaws of the reorganized Company, the Board of Directors of Ambac now consists of Ambac’s Chief Executive Officer and four other Directors. Pursuant to the Reorganization Plan, Ambac distributed 45,000,000 shares of new common stock on May 1, 2013 and distributed warrants to holders of allowed general unsecured claims and subordinated debt securities, which entitle such holders to acquire an additional 5,047,138 shares of new common stock of the Company at an exercise price of $16.67 per share at any time on or prior to April 30, 2023. As of December 31, 2013, 6,312 warrants were exercised, resulting in an issuance of 2,524 shares of common stock. The new common stock and warrants are listed on NASDAQ and trade under the symbols “AMBC” and “AMBCW,” respectively. All such common stock and warrants were issued without registration under the Securities Act of 1933, as amended or state securities laws, in reliance on Section 1145 of the United States Bankruptcy Code. The common stock of the Company in existence prior to the Effective Date was cancelled on the Effective Date and the holders of such stock did not receive, and will not receive, any distributions under the Reorganization Plan.

Pursuant to the Mediation Agreement, Ambac Assurance transferred $30,000 (plus accrued interest) from an escrow account to Ambac on the Effective Date. Additionally, the Segregated Account issued a Junior Surplus Note in the amount of $350,000 to Ambac on the Effective Date in accordance with the Mediation Agreement. No payment of interest on or principal of a Segregated Account Junior Surplus Note may be made until all existing and future indebtedness of the Segregated Account, including Segregated Account Surplus Notes, policy claims and claims having statutory priority have been paid in full. All payments of principal and interest on Segregated Account Junior Surplus Notes are subject to the prior approval of the OCI. If the OCI does not approve the payment of interest on the Segregated Account Junior Surplus Notes, such interest will accrue and compound annually until paid.

Also as provided for in the Reorganization Plan, Ambac’s Amended and Restated Certificate of Incorporation and revised Bylaws became effective on the Effective Date. Ambac’s Amended and Restated Certificate of Incorporation limits voting and transfer rights of stockholders in significant ways. Article IV contains voting restrictions applicable to any person owning at least 10% of Ambac’s common stock so that such person (including any group consisting of such person and any other person with whom such person or any

 

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affiliate or associate of such person has any agreement, contract, arrangement or understanding with respect to acquiring, voting, holding or disposing of Ambac’s common stock) shall not be entitled to cast votes in excess of one vote less than 10% of the votes entitled to be cast by all common stock holders, except as otherwise approved by OCI.

There are substantial restrictions on the ability to transfer Ambac’s common stock set forth in Article XII of Ambac’s Amended and Restated Certificate of Incorporation. In order to preserve certain tax benefits, subject to limited exceptions, any attempted transfer of common stock shall be prohibited and void to the extent that, as a result of such transfer (or any series of transfers of which such transfer is a part), either (i) any person or group of persons shall become a holder of 5% or more of the Company’s common stock or (ii) the percentage stock ownership interest in Ambac of any holder of 5% or more of the Company’s common stock shall be increased (a “Prohibited Transfer”). These restrictions shall not apply to an attempted transfer if the transferor or the transferee obtains the written approval of Ambac’s Board of Directors to such transfer. A purported transferee of a Prohibited Transfer shall not be recognized as a stockholder of Ambac for any purpose whatsoever in respect of the securities which are the subject of the Prohibited Transfer (the “Excess Securities”). Until the Excess Securities are acquired by another person in a transfer that is not a Prohibited Transfer, the purported transferee of a Prohibited Transfer shall not be entitled with respect to such Excess Securities to any rights of stockholders of Ambac, including, without limitation, the right to vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any. Once the Excess Securities have been acquired in a transfer that is not a Prohibited Transfer, the securities shall cease to be Excess Securities. If the Board determines that a transfer of securities constitutes a Prohibited Transfer then, upon written demand by Ambac, the purported transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the purported transferee’s possession or control, together with any distributions paid by Ambac with respect to such Excess Securities, to an agent designated by Ambac. Such agent shall thereafter sell such Excess Securities and the proceeds of such sale shall be distributed as set forth in the Amended and Restated Certificate of Incorporation. If the purported transferee of a Prohibited Transfer has resold the Excess Securities before receiving such demand, such person shall be deemed to have sold the Excess Securities for Ambac’s agent and shall be required to transfer to such agent the proceeds of such sale, which shall be distributed as set forth in the Amended and Restated Certificate of Incorporation.

As of the Effective Date, the Company was generally discharged and released from all pre-Effective Date debts, liabilities, claims, causes of action and interests in accordance with the provisions of the Reorganization Plan. Holders of claims and equity interests are also generally barred from commencing or continuing any action or proceeding relating to such claims, causes of action or interests. The Reorganization Plan also provides for broad exculpation and releases of the Company, Ambac Assurance, the Segregated Account, OCI, the Rehabilitator, the board of directors and board committees of the Company and Ambac Assurance, all individual directors, officers and employees of the Company and Ambac Assurance, the Creditors’ Committee and the individual members thereof, and each of the respective representatives of such parties, for actions or omissions that occurred on or prior to the Effective Date.

Segregated Account of Ambac Assurance Corporation

The Segregated Account is operated in accordance with a plan of operation (the “Plan of Operation”) and certain operative documents relating thereto (which include the Secured Note (defined below), the Reinsurance Agreement (defined below), the Management Services Agreement, dated as of March 24, 2010, by and between the Segregated Account and Ambac Assurance (the “Management Services Agreement”), the Cost Allocation Agreement, and the Cooperation Agreement, dated as of March 24, 2010, by and between the Segregated Account and Ambac Assurance, as amended pursuant to the Cooperation Agreement Amendment (the

 

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“Cooperation Agreement”)). Pursuant to such operative documents, Ambac Assurance has entered into certain covenants for the benefit of the Segregated Account, including covenants relating to its investment policies; payments to its security holders; transactional and operational activities; information sharing; tax positions; loan repayments; loss reserving; and allocation of expenses.

Pursuant to the Plan of Operation, Ambac Assurance has allocated to the Segregated Account (1) certain policies insuring or relating to credit default swaps; (2) residential mortgage-backed securities (“RMBS”) policies; (3) certain policies insuring debt obligations backed by student loans; and (4) other policies insuring obligations with substantial projected impairments or relating to transactions which have contractual triggers based upon Ambac Assurance’s financial condition or the commencement of rehabilitation, which triggers are potentially damaging (collectively, the “Segregated Account Policies”). The policies described in (4) above include (a) certain types of securitizations, including commercial asset-backed transactions, consumer asset-backed transactions and other types of structured transactions; (b) the policies relating to Las Vegas Monorail Company; (c) policies relating to debt securities purchased by, and the debt securities issued by, Juneau Investments, LLC (“Juneau”) and Aleutian Investments, LLC (“Aleutian”), which are both finance companies owned by Ambac Assurance; (d) policies relating to leveraged lease transactions; and (e) policies relating to interest rate, basis, and/or currency swap or other swap transactions. In January 2013, Aleutian repaid its remaining debt obligations. Net par exposure as of December 31, 2013 for policies allocated to the Segregated Account is $22,243,599. Ambac Assurance also allocated the following to the Segregated Account: (i) all remediation claims, defenses, offsets, and/or credits (except with respect to recoveries arising from remediation efforts or reimbursement or collection rights), if any, in respect of the Segregated Account Policies, (ii) Ambac Assurance’s limited liability interests in ACP, Ambac Conduit Funding LLC, Aleutian and Juneau and (iii) all of Ambac Assurance’s liabilities as reinsurer under reinsurance agreements (except for reinsurance assumed from Everspan).

Policy obligations not allocated to the Segregated Account remain in the General Account, and such policies in the General Account are not subject to and, therefore, will not be directly impacted by the Segregated Account Rehabilitation Plan (as defined below).

During the Segregated Account Rehabilitation Proceedings, the Rehabilitator controls the management of the Segregated Account and possesses ultimate decision-making authority with respect to all matters relating to the policies allocated to the Segregated Account. Ambac Assurance provides certain management and administrative services to the Segregated Account and the Rehabilitator pursuant to the Management Services Agreement, including information technology services, credit exposure management, treasury, accounting, tax, management information, risk management, loss management, internal audit services and business continuity services. Services are provided at cost, subject to mutual agreement of the Segregated Account and Ambac Assurance. Either party may terminate the Management Services Agreement for cause upon 120 days written notice (or such shorter period as the Rehabilitator may determine) and the Segregated Account may terminate without cause at any time upon at least 30 days prior notice. If the Segregated Account elects to terminate the Management Services Agreement, Ambac Assurance will not have the right to consent to the replacement services provider.

Pursuant to the Cooperation Agreement, Ambac Assurance and the Segregated Account have agreed to certain matters related to decision-making, information sharing, tax compliance and allocation of expenses (including an agreement by Ambac Assurance to reimburse the Segregated Account for specified expenses to the extent not reimbursed under the Secured Note, subject to the Minimum Surplus Amount). Ambac Assurance has made certain covenants to the Segregated Account pursuant to the Cooperation Agreement, including an agreement to not enter into any transaction involving more than $5,000 (or such higher amount as is agreed with

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

the Rehabilitator) without the Segregated Account’s prior consent (other than policy claim payments made in the ordinary course of business and investments in accordance with Ambac Assurance’s investment policy), and providing the Segregated Account with an annual operating expense budget for Ambac Assurance and its subsidiaries, as well as quarterly analyses of variances. The Cooperation Agreement also addresses Ambac Assurance’s rights in the event Ambac Assurance is no longer the management and administrative services provider to the Segregated Account as described above. The Cooperation Agreement Amendment made the Company a party to the Cooperation Agreement and provides the Rehabilitator with additional rights as described above.

In 2010, Ambac Assurance issued a $2,000,000 secured note due in 2050 (the “Secured Note”) to the Segregated Account. Interest on the Secured Note accrues at the rate of 4.5% per annum, and accrued interest will be added to principal quarterly. The Segregated Account has the ability to demand payment from time to time to pay claims and other liabilities. Ambac Assurance has secured its obligations under the Secured Note and the Reinsurance Agreement by granting to the Segregated Account a security interest in all of Ambac Assurance’s right, title and interest in (i) installment premiums received in respect of the Segregated Account Policies; (ii) reinsurance premiums received in respect of assumed reinsurance agreements with respect to which the liabilities of Ambac Assurance have been allocated to the Segregated Account; (iii) recoveries under third party reinsurance agreements in respect of the Segregated Account Policies; and (iv) any recoveries arising from remediation efforts or reimbursement or collection rights with respect to policies allocated to the Segregated Account. The balance of the Secured Note is $105,989 at December 31, 2013, including capitalized interest since the date of issuance. Once the Secured Note has been exhausted, the Segregated Account has the ability to demand payment from time to time under an aggregate excess of loss reinsurance agreement provided by Ambac Assurance (the “Reinsurance Agreement”) to pay claims and other liabilities. The Secured Note is subject to mandatory prepayment on demand in an amount equal to (i) the cash portion of claim liabilities, loss settlements, commutations and purchases of Segregated Account Policies (or related insured obligations) due and payable by the Segregated Account (“Segregated Account Policy Cash Payments”), amounts due and payable by the Segregated Account arising out of the non-policy obligations allocated thereto, and any cash interest payment and cash principal repayment under any surplus notes issued by the Segregated Account (“Segregated Account Surplus Notes”) in connection with any of the foregoing plus (ii) amounts due and payable by the Segregated Account in respect of specified administrative expenses of the Segregated Account plus (iii) other amounts directed to be paid by the Rehabilitator in conjunction with the Segregated Account Rehabilitation Proceedings, minus (iv) the amount of the Segregated Account’s liquid assets as determined by the Segregated Account. In addition, if an event of default occurs under the Secured Note, the Segregated Account is entitled to accelerate the outstanding principal amount due under the Secured Note.

Pursuant to the Reinsurance Agreement, Ambac Assurance has agreed to pay Segregated Account Policy Cash Payments, any cash interest or principal payment under any Segregated Account Surplus Notes and other amounts directed to be paid by the Rehabilitator, minus the amount of the Segregated Account’s liquid assets as determined by the Segregated Account. Ambac Assurance’s payment obligations under the Reinsurance Agreement attaches only after all principal under the Secured Note have been paid.

Ambac Assurance is not obligated to make payments on the Secured Note or under the Reinsurance Agreement if its surplus as regards to policyholders is less than $100,000 (the “Minimum Surplus Amount”). As long as the surplus as regards to policyholders is not less than the Minimum Surplus Amount, payments by Ambac Assurance to the Segregated Account under the Reinsurance Agreement are not capped. At December 31, 2013, Ambac Assurance’s surplus as regards to policyholders of $840,262 exceeds the Minimum Surplus Amount. In the event that Ambac Assurance does not maintain surplus in excess of the Minimum Surplus Amount, the Segregated Account would experience a shortfall in funds available to pay its liabilities to the extent

 

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that such liabilities exceed amounts available under the Secured Note and Reinsurance Agreement. Any such shortfall would be a consideration for the Rehabilitator in the determination of whether any changes to the Segregated Account Rehabilitation Plan (as defined below) and/or the amount of partial policy claim payments are necessary or appropriate or whether to institute general rehabilitation proceedings against Ambac Assurance.

Pursuant to the Secured Note and the Reinsurance Agreement, Ambac Assurance has made certain covenants to the Segregated Account, including covenants that Ambac Assurance will not, (i) without the Segregated Account’s consent (not to be unreasonably withheld), amend its investment policies if doing so would have a material adverse effect on Ambac Assurance’s ability to perform its obligations under the Secured Note, the Reinsurance Agreement and the documents relating thereto or under any other material agreement to which it is a party, (ii) without the prior approval of the OCI, directly or indirectly make any distribution to its shareholder or redeem any of its securities and, (iii) without the Segregated Account’s consent (not to be unreasonably withheld), enter into any transaction other than pursuant to the reasonable requirements of Ambac Assurance’s business and which Ambac Assurance reasonably believes are fair and reasonable terms and provisions.

On October 8, 2010, the Rehabilitator filed a plan of rehabilitation for the Segregated Account (the “Segregated Account Rehabilitation Plan”) in the Rehabilitation Court. The Rehabilitation Court confirmed the Segregated Account Rehabilitation Plan on January 24, 2011. The confirmed Segregated Account Rehabilitation Plan also made permanent the injunctions issued by the Rehabilitation Court on March 24, 2010. The Segregated Account Rehabilitation Plan has not been made effective and is subject to modification. On June 4, 2012, the Rehabilitation Court approved a motion made by the Rehabilitator to make partial interim policy claim payments to Segregated Account policyholders. In accordance with such approval, on August 1, 2012, the Rehabilitator promulgated Rules Governing the Submission, Processing and Partial Payment of Policy Claims in accordance with the June 4, 2012 Interim Cash Payment Order (the “Policy Claim Rules”). Pursuant to the Policy Claim Rules, effective from August 1, 2012, holders of policies allocated to the Segregated Account were, and continue to be, allowed to submit policy claims for review and partial payment equating to 25% of the permitted policy claim amount.

On July 11, 2013 the Rehabilitator filed a motion with the Rehabilitation Court seeking approval from the Rehabilitation Court for the Segregated Account to make cash payments in excess of 25% of the permitted policy claim amount (“Supplemental Payments”) with respect to 14 policies (the “Identified Policies”) so that cash flow in the related securitization trusts that would have been available to reimburse Ambac Assurance had it paid claims in full under such policies is not diverted to uninsured holders who would not have received such cash flow if claims had been paid in full. The motion also sought authorization for the payment of Supplemental Payments on other policies identified from time to time where similar reimbursements are available (together with the Identified Policies, the “SP Policies”). Without making such Supplemental Payments, Ambac Assurance would likely realize lower levels of reimbursements and subrogation recoverables as cash flow that would have been available for the benefit of Ambac Assurance in relation to the SP Policies would be lost to such uninsured holders. A hearing on such motion was held on August 2, 2013, following which the Rehabilitation Court granted such motion and entered an order permitting Supplemental Payments to be made with respect to the SP Policies. As a result, the Segregated Account began making Supplemental Payments on certain SP Policies in August 2013.

In September 2013, the Rehabilitator submitted a request for rulings from the United States Internal Revenue Service (“IRS”) as to certain tax issues associated with potential amendments to the Segregated Account Rehabilitation Plan. Pursuant to such amendments, surplus notes would not be issued with respect to the unpaid balance of permitted policy claims, but such balance would be recorded by the Segregated Account as outstanding policy obligations which would accrue interest from the first date on which a portion of such

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

permitted policy claim is or was paid until such outstanding policy obligations are paid (any such outstanding policy obligation, including accrued interest thereon, as such obligation may be adjusted from time to time in accordance with the Segregated Account Rehabilitation Plan, guidelines or rules issued by the Rehabilitator and/or orders of the Rehabilitation Court, a “Deferred Amount”). The amendments would likely provide that interest on the unpaid portion of permitted policy claims be accrued generally at an effective rate of 5.1%, compounded annually. However, in the case of certain insured bonds, the outstanding principal balance of which is not reduced by the unpaid portion of permitted policy claims relating to principal (such bonds, “Undercollateralized Bonds”), even though a Deferred Amount is also created, the interest accruing on the Deferred Amount may be reduced by the amount of interest payable on the Undercollateralized Bonds. Absent an adjustment by the Rehabilitator, bondholders would continue to earn interest on both the full principal balance of such Undercollateralized Bonds and the Deferred Amount. In order to address this issue, the Rehabilitator is considering, in respect of those portions of unpaid permitted policy claims that relate to principal on Undercollateralized Bonds, reducing the 5.1% effective annual interest rate by the bond interest rate applicable to such Undercollateralized Bonds (adjusted from time to time in accordance with the provisions of the Segregated Account Rehabilitation Plan, but in no circumstances to less than zero). If favorable rulings are received by the Rehabilitator from the IRS, then the Rehabilitator would likely file such amendments to the Segregated Account Rehabilitation Plan. The timing and likelihood of such amendments to the Segregated Account Rehabilitation Plan are presently unclear, but such amendments could have a material impact on our accounting, financial condition and results of operations.

As more fully described in Note 18, on October 24, 2013, the Wisconsin Court of Appeals affirmed orders of the Rehabilitation Court entered in connection with the Segregated Account Rehabilitation Proceedings, thus upholding the Segregated Account Rehabilitation Plan and actions taken by OCI in formulating such plan. Certain parties have filed petitions for review of the Court of Appeals’ ruling with the Supreme Court of the State of Wisconsin.

Reclassifications:

Certain reclassifications have been made to prior periods’ amounts to conform to the current period’s presentation.

2.        BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES

Ambac’s consolidated financial statements have been prepared on the basis of U.S. generally accepted accounting principles (“GAAP”). The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, expenses and disclosures of contingent assets and liabilities. Such estimates that are particularly susceptible to change in the near term are used in connection with certain fair value measurements, the evaluation of other than temporary impairments on investments, loss reserves for non-derivative insurance policies, the evaluation of the need for an impairment of goodwill or valuation allowance on the deferred tax asset, any of which individually could be material.

Reorganization:

Entities operating in bankruptcy and expecting to reorganize under Chapter 11 of the Bankruptcy Code are subject to the additional accounting and financial reporting guidance under the Reorganization Topic of the Accounting Standards Codification (the “ASC”). While the Reorganization Topic of the ASC provides specific

 

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guidance for certain matters, other portions of U.S. GAAP continue to apply so long as the guidance does not conflict with the Reorganization Topic of the ASC. This accounting literature provides guidance for periods subsequent to a Chapter 11 filing, among other things, the presentation of liabilities that are and are not subject to compromise pursuant to the bankruptcy proceedings, as well as the treatment of interest expense and presentation of costs associated with the proceedings. For the purpose of presenting an entity’s financial condition, the financial statements for periods including and after filing the Chapter 11 petition shall distinguish transactions and events that are directly associated with the reorganization from the ongoing operations of the business. As described below, the accompanying consolidated financial statements present Ambac’s pre-petition debt within Liabilities subject to compromise.

Under the Reorganization Topic of the ASC, the Company determined that fresh start financial statement reporting was to be applied upon our emergence from Chapter 11 because (i) the reorganization value (further described in Note 3) of the emerging entity was less than total post-petition liabilities and allowed claims, and (ii) the holders of existing voting shares immediately before the confirmation of the Reorganization Plan received less than 50% of the voting shares of the emerging entity. Specifically, fresh start reporting was applied upon confirmation of the Reorganization Plan by the Bankruptcy Court and the satisfaction of the remaining material contingencies necessary to complete implementation of the Reorganization Plan. All conditions required for the adoption of fresh start reporting were satisfied by the Company on April 30, 2013 (“Fresh Start Reporting Date”). Adopting fresh start reporting results in a new reporting entity with no beginning retained earnings or accumulated deficit. For periods after the Fresh Start Reporting Date the Company will be referred to as Successor Ambac, whereas for all periods as of and preceding the Fresh Start Reporting Date the Company will be referred to as Predecessor Ambac. Presentation of information for Successor Ambac represents the financial position and results of operations of Successor Ambac and is not comparable to our previously issued financial statements. The implementation of fresh start reporting is further described in Note 3.

Reorganization items :

Professional advisory fees and other costs directly associated with our reorganization are reported separately as reorganization items. Reorganization items also include adjustments to reflect the carrying value of certain pre-petition liabilities at their allowable claim amounts, gain on the settlement of liabilities subject to compromise and fresh start reporting adjustments. The reorganization items in the Consolidated Statements of Total Comprehensive Income consisted of the following items:

 

     Successor Ambac            Predecessor Ambac  
     Eight Months Ended
December 31, 2013
           Four Months Ended
April 30, 2013
    Year Ended
December 31, 2012
 

U.S. Trustee fees

   $ 33           $ 23      $ 50   

Professional fees

     460             4,483        7,165   

Gain from cancellation and satisfaction of Predecessor Ambac debt

     —              (1,521,435     —    

Fresh start reporting adjustments

     —              (1,228,251     —    
  

 

 

        

 

 

   

 

 

 

Total reorganization items

   $ 493           ($ 2,745,180   $ 7,215   
  

 

 

        

 

 

   

 

 

 

Liabilities Subject to Compromise:

In accordance with the Reorganizations Topic of the ASC, following the date Ambac filed its Chapter 11 petition, we discontinued recording interest expense on debt classified as Liabilities subject to compromise,

 

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which amounted to $239,468 through April 30, 2013. The stated contractual interest on debt classified as Liabilities subject to compromise amounted to $27,572 for the four months ended April 30, 2013 and $85,371 for the year ended December 31, 2012. As required by the Reorganizations Topic of the ASC, the amount of the Liabilities subject to compromise represented our estimate of known or potential pre-petition claims to be addressed in connection with the bankruptcy.

At the Effective Date, all liabilities subject to compromise were settled through the issuance of common stock or warrants to purchase common stock. As such, as of the Effective Date, no liabilities remain subject to compromise. The liabilities subject to compromise at December 31, 2012 consisted of the following:

 

     Predecessor Ambac –
December 31, 2012
 

Debt obligations and accrued interest payable

   $ 1,690,312   

Other

     14,592 (1)  
  

 

 

 

Consolidated liabilities subject to compromise

   $ 1,704,904   
  

 

 

 

 

(1) Primarily comprises an allowed general unsecured claim of $14,007 provided to Ambac’s landlord in connection with a settlement agreement relating to claims under its headquarters lease.

Ambac Unconsolidated Financial Information:

Financial information of Ambac is presented in Schedule II to this Form 10-K as of and for the years ended December 31, 2013 and 2012. Investments in subsidiaries are accounted for using the equity method of accounting.

Consolidation:

The consolidated financial statements include the accounts of Ambac and all other entities in which Ambac (directly or through its subsidiaries) has a controlling financial interest, including variable interest entities (“VIEs”) for which Ambac or an Ambac subsidiary is deemed the primary beneficiary in accordance with the Consolidation Topic of the ASC. All significant intercompany balances have been eliminated. The usual condition for a controlling financial interest is ownership of a majority of the voting interests of an entity. However, a controlling financial interest may also exist in entities, such as VIEs, through arrangements that do not involve controlling voting interests. The primary beneficiary of a VIE is the party that has both the following characteristics: a) the power to direct the activities of the VIE that most significantly impact the VIE’s economic performance and b) the obligation to absorb losses of the VIE that could potentially be significant to the VIE or the right to receive benefits from the VIE that could potentially be significant to the VIE. An entity that is deemed the primary beneficiary of a VIE is required to consolidate the VIE.

A VIE is an entity: a) that lacks enough equity investment at risk to permit the entity to finance its activities without additional subordinated financial support from other parties; or b) where the group of equity holders does not have: (1) the power, through voting rights or similar rights, to direct the activities of an entity that most significantly impact the entity’s economic performance; (2) the obligation to absorb the entity’s expected losses; or (3) the right to receive the entity’s expected residual returns. The determination of whether a variable interest holder is the primary beneficiary involves performing a qualitative analysis of the VIE that includes, among other factors, its capital structure, contractual terms including the rights of each variable interest holder, the activities of the VIE, whether the variable interest holder has the power to direct the activities of a VIE that most

 

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significantly impact the VIE’s economic performance, whether the variable interest holder has the obligation to absorb losses of the VIE that could potentially be significant to the VIE or the right to receive benefits from the VIE that could potentially be significant to the VIE, related party relationships and the design of the VIE. Refer to Note 4 for a detailed discussion of Ambac’s involvement in VIEs, Ambac’s methodology for determining whether Ambac is required to consolidate a VIE and the effects of VIEs consolidated.

Goodwill:

At the Fresh Start Reporting Date, we revalued our assets and liabilities to current estimated fair value. The excess reorganization value which could not be attributed to the fair value of specific identified tangible and intangible assets was recorded as goodwill. Pursuant to the Intangibles - Goodwill and Other Topic of the ASC, goodwill is not amortized but is subject to annual impairment testing. We test goodwill for impairment as of October 1 st of each year. Goodwill is also tested more frequently if indicators of impairment exist for each reporting unit. The Company has an option to first assess qualitative factors, in their totality, to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform a goodwill impairment test. If the Company determines that it is more likely than not that the fair value of a reporting unit is less than its carrying amount, then the Company is required to perform the goodwill impairment test. Alternatively, we may bypass this qualitative assessment and perform step one of the goodwill impairment test described below.

Goodwill impairment is determined using a two-step approach. In step one of the goodwill impairment test, the fair value of a reporting unit is compared with its carrying amount, including goodwill. If the fair value is in excess of the carrying amount, including goodwill, the reporting unit’s goodwill is considered not to be impaired. If the carrying amount, including goodwill of a reporting unit exceeds its fair value, the second step of the goodwill impairment test is performed to measure the amount of impairment loss, if any. In step two of the goodwill impairment test, the implied fair value of a reporting unit’s goodwill is compared with the carrying amount of that goodwill. The implied fair value of goodwill is determined in the same manner as the amount of goodwill recognized in a business combination and is defined as the excess of the fair value of a reporting unit over the fair value of the net assets of a reporting unit. If the carrying amount of goodwill exceeds its implied fair value, an impairment loss is recognized for the excess. If the carrying amount of goodwill is less than its implied fair value, no goodwill impairment is recognized.

Goodwill impairment testing is performed at the reporting unit level. We have identified two reporting units of Ambac: (1) Financial Guarantee, which provides financial guarantees (including credit derivatives) for public finance, structured finance and other obligations; and (2) Financial Services, which provides investment agreements, funding conduits, and interest rate swaps, principally to clients of the financial guarantee business. These reporting units are also the sole operating segments which make up the Financial Guarantee and Financial Services reportable segments, respectively, as further described in Note 19. We have assigned assets and liabilities to each reporting unit based on specific identification. In evaluating which reporting units should be assigned goodwill, we considered the sources of Ambac’s estimated enterprise value at the Fresh Start Reporting Date, as further described in Note 3. Based on that analysis, we have assigned all goodwill recorded at the Fresh Start Reporting Date to the Financial Guarantee reporting unit.

For the 2013 annual assessment, we performed step one of the goodwill impairment test for the Financial Guarantee reporting unit. We estimated the fair value of the Financial Guarantee reporting unit using a market approach, which incorporated Ambac’s market capitalization, fair value estimates of noncontrolling interests and an estimated control premium. After completing our annual impairment review for 2013, we concluded that goodwill is not impaired.

 

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The following is a summary of activity in goodwill for the Financial Guarantee reporting unit:

 

    Successor Ambac           Predecessor Ambac  
    Period from May 1
through December 31, 2013
          Period from January 1
through April 30, 2013
    Period from January 1
through December 31, 2012
 

Beginning balance

  $ —            $ —        $ —     

Goodwill recorded in connection with emergence from Chapter 11

    514,511                     

Accumulated impairment loss

                        
 

 

 

       

 

 

   

 

 

 

Ending balance

  $
 
 
514,511
  
  
      $      $   
 

 

 

       

 

 

   

 

 

 

Restricted Cash:

Cash that we do not have the right to use for general purposes as of reporting period end is recorded as restricted cash in our consolidated balance sheets. Restricted cash includes consolidated variable interest entity cash restricted to fund the obligations of the consolidated VIEs.

Net Income Per Share:

Basic net income per share is computed by dividing net income available to common stockholders by the weighted-average number of common shares outstanding, inclusive of unsettled and vested restricted stock units. Diluted net income per share is computed by dividing net income attributable to common stockholders by the weighted-average number of common shares outstanding plus all dilutive potential common shares outstanding during the period. All dilutive potential common shares outstanding consider common stock deliverable pursuant to warrants issued under the Reorganization Plan and those pursuant to stock options and non-vested restricted stock units.

Net Premiums Earned:

Gross premiums are received either upfront (typical of public finance obligations) or in installments (typical of structured finance obligations). For premiums received upfront, an unearned premium revenue (“UPR”) liability is established, which is initially recorded as the cash amount received. For installment premium transactions, a premium receivable asset and offsetting UPR liability is initially established in an amount equal to: (i) the present value of future contractual premiums due (the “contractual” method) or, (ii) if the underlying insured obligation is a homogenous pool of assets which are contractually prepayable, the present value of premiums to be collected over the expected life of the transaction (the “expected” method). An appropriate risk-free rate corresponding to the weighted average life of each policy and currency is used to discount the future premiums contractually due or expected to be collected. For example, U.S. dollar exposures are discounted using U.S. Treasury rates while exposures denominated in a foreign currency are discounted using the appropriate risk-free rate for the respective currency. The weighted average risk-free rate at December 31, 2013 and December 31, 2012, was 3.0% and 2.6%, respectively, and the weighted average period of future premiums used to estimate the premium receivable at December 31, 2013 and December 31, 2012, was 9.6 years.

Insured obligations consisting of homogeneous pools for which Ambac uses expected future premiums to estimate the premium receivable and UPR include residential mortgage-backed securities. As prepayment

 

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assumptions change for homogenous pool transactions, or if there is an actual prepayment for a “contractual” method installment transaction, the related premium receivable and UPR are adjusted in equal and offsetting amounts with no immediate effect on earnings using new premium cash flows and the then current risk-free rate.

Generally, the priority for the payment of financial guarantee premiums to Ambac, as required by the bond indentures of the insured obligations, is very senior in the waterfall. Additionally, in connection with the allocation of certain liabilities to the Segregated Account, trustees are required under the Segregated Account Rehabilitation Plan and related court orders to continue to pay installment premiums, notwithstanding the Segregated Account Rehabilitation Proceedings. In evaluating the credit quality of the premium receivables, management evaluates the transaction waterfall structures and the internal ratings of the transactions underlying the premium receivables. As of December 31, 2013 and December 31, 2012, approximately 44% and 40% of the premium receivables were related to transactions with non-investment grade internal ratings, comprised mainly of non-investment grade RMBS, student loan transactions and a certain asset-backed transaction, which comprised 7%, 7%, and 17% of the total premium receivables at December 31, 2013 and 7%, 9% and 12% of the total premium receivables at December 31, 2012, respectively. At December 31, 2013 and 2012, $15,262 and $118,961, respectively, of premium receivables were deemed uncollectable. A transaction that had an uncollectable premium receivable at December 31, 2012 was consolidated on April 30, 2013. Past due premiums on policies insuring non-investment grade obligations amounted to less than $500 at December 31, 2013.

For both upfront and installment premium policies, premium revenues are earned over the life of the financial guarantee contract in proportion to the insured principal amount outstanding at each reporting date (referred to as the level-yield method). For installment paying policies, the premium receivable discount, equating to the difference between the undiscounted future installment premiums and the present value of future installment premiums, is accreted as premiums earned in proportion to the premium receivable balance at each reporting date.

Similar to gross premiums, premiums ceded to reinsurers are paid either upfront or in installments. For premiums paid upfront, a deferred ceded premium asset is established which is initially recorded as the cash amount paid. For installment premiums, a ceded installment premiums payable liability and offsetting deferred ceded premium asset are initially established in an amount equal to: i) the present value of future contractual premiums due or, ii) if the underlying insured obligation is a homogenous pool of assets which are contractually pre-payable, the present value of expected premiums to be paid over the life of the transaction. An appropriate risk-free rate corresponding to the weighted average life of each policy and exposure currency is used to discount the future premiums contractually due or expected to be collected. Premiums ceded to reinsurers reduce the amount of premiums earned by Ambac from its financial guarantee insurance policies. For both up-front and installment premiums, ceded premiums written are primarily recognized in earnings in proportion to and at the same time as the related gross premium revenue is recognized. For premiums paid to reinsurers on an installment basis, Ambac records the present value of future ceding commissions as an offset to ceded premiums payable, using the same assumptions noted above for installment premiums.

When a bond issue insured by Ambac Assurance has been retired, including those retirements due to refundings or calls, any remaining UPR is recognized at that time to the extent the financial guarantee contract is legally extinguished, causing accelerated premium revenue. For installment premium paying transactions, we offset the recognition of any remaining UPR by the reduction of the related premium receivable to zero (as it will not be collected as a result of the retirement), which may cause negative accelerated premium revenue. Successor Ambac’s accelerated premium revenue for retired obligations for the eight months ended December 31, 2013 was $56,541. Predecessor Ambac’s accelerated premium revenue for retired obligations for the four months ended April 30, 2013 and the year ended December 31, 2012, respectively were $36,433 and $127,628. Certain

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

obligations insured by Ambac have been legally defeased whereby government securities are purchased by the issuer with the proceeds of a new bond issuance, or less frequently with other funds of the issuer, and held in escrow (a pre-refunding). The principal and interest received from the escrowed securities are then used to retire the Ambac-insured obligations at a future date either to their maturity date or a specified call date. Ambac has evaluated the provisions in certain financial guarantee insurance policies issued on legally defeased obligations and determined those insurance policies have not been legally extinguished and, therefore, premium revenue recognition has not been accelerated.

Loss Reserves:

The loss and loss expense reserve (“loss reserve”) policy for financial guarantee insurance relates only to Ambac’s non-derivative insurance business for insurance policies issued to beneficiaries, including VIEs, for which we do not consolidate the VIE. Losses and loss expenses are based upon estimates of the ultimate aggregate losses inherent in the non-derivative financial guarantee portfolio as of the reporting date. The policy for derivative contracts is discussed in “Derivative Contracts” below. A loss reserve is recorded on the balance sheet on a policy-by-policy basis for the excess of: (a) unpaid claims plus the present value of expected losses over (b) the UPR for that contract. Expected losses represent projected net cash flows which are defined as the expected future claims to be paid under an insurance contract plus the impact of potential settlement outcomes upon future installment premiums, less potential recoveries. To the extent (a) is less than (b), no loss reserve is recorded. Changes to the loss reserve in subsequent periods are recorded as a loss and loss expense on the income statement. The evaluation process for determining expected losses is subject to certain estimates and judgments based on our assumptions regarding the probability of default by the issuer of the insured security, probability of settlement outcomes (which may include commutation settlements, refinancing and/or other settlement outcomes) and expected severity of credits for each insurance contract. For those policies where the potential recovery is less than the expected future claims, the resulting net cash outflow is recorded as a “Loss and loss expense reserve” liability. For those policies where losses have been paid, but not yet recovered, the potential recovery may be greater than the expected future claims and the resulting net cash inflow is recorded as a “Subrogation recoverable” asset.

Ambac’s loss reserves are based on management’s on-going review of the non-derivative financial guarantee credit portfolio. Active surveillance of the insured portfolio enables Ambac’s surveillance group to track credit migration of insured obligations from period to period and update internal classifications and credit ratings for each transaction. Non-adversely classified credits are assigned a Class I or Survey List (“SL”) rating while adversely classified credits are assigned a rating of Class IA through Class V. The criteria for an exposure to be assigned an adversely classified credit rating includes the deterioration of an issuer’s financial condition, underperformance of the underlying collateral (for collateral dependent transactions such as mortgage-backed or student loan securitizations), poor performance by the servicer of the underlying collateral and other adverse economic events or trends. The servicer of the underlying collateral of an insured securitization transaction is a consideration in assessing credit quality because the servicer’s performance can directly impact the performance of the related issue. For example, a servicer of a mortgage-backed securitization that does not remain current in its collection loss mitigation efforts could cause an increase in the delinquency and potential default of the underlying obligation. Similarly, loss severities increase when a servicer does not effectively handle loss mitigation activities such as (i) the advancing of delinquent principal and interest and of default related expenses which are deemed to be recoverable by the servicer, (ii) pursuit of loan charge-offs which maximize cash flows from the mortgage loan pool, and (iii) foreclosure and real estate owned disposition strategies and timelines.

All credits are assigned risk classifications by the Surveillance Group using the following guidelines:

 

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CLASS I – “Fully Performing – Meets Ambac Criteria with Remote Probability of Claim”

Credits that demonstrate adequate security and structural protection with a strong capacity to pay interest, repay principal and perform as underwritten. Factors supporting debt service payment and performance are considered unlikely to change and any such change would not have a negative impact upon the fundamental credit quality.

SURVEY LIST – “Investigation of Specific Condition or Weakness Underway”

Credits that require additional analysis to determine if adverse classification is warranted. These credits may lack information or demonstrate a weakness but further deterioration is not expected.

CLASS IA – “Potential Problem with Risks to be Dimensioned”

Credits that are fully current and monetary default or claims-payment are not anticipated. The payor’s or issuer’s financial condition may be deteriorating or the credits may lack adequate collateral. A structured financing may also evidence weakness in its fundamental credit quality as evidenced by its under-performance relative to its modeled projections at underwriting, issues related to the servicer’s ability to perform or questions about the structural integrity of the transaction. While these credits may still retain an investment grade rating, they usually have experienced or are vulnerable to a ratings downgrade. Further investigation is required to dimension and correct any deficiencies. A complete legal review of documents may be required. An action plan should be developed with triggers for future classification changes upward or downward.

CLASS II – “Substandard Requiring Intervention”

Credits whose fundamental credit quality has deteriorated to the point that timely payment of debt service may be jeopardized by adversely developing trends of a financial, economic, structural, managerial or political nature. No claim payment is currently foreseen but the probability of loss or claim payment over the life of the transaction is now existent (10% or greater probability). Class II credits may be border-line or below investment grade (BBB- to B). Prompt and sustained action must be taken to execute a comprehensive loss mitigation plan and correct deficiencies.

CLASS III – “Doubtful with Clear Potential for Loss”

Credits whose fundamental credit quality has deteriorated to the point that timely payment of debt service has been or will be jeopardized by adverse trends of a financial, economic, structural, managerial or political nature which, in the absence of positive change or corrective action, are likely to result in a loss. The probability of monetary default or claims paying over the life of the transaction is 50% or greater. Full exercise of all available remedial actions is required to avert or minimize losses. Class III credits will generally be rated below investment grade (B to CCC).

CLASS IV – “Imminent Default or Defaulted”

Monetary default or claim payments have occurred or are expected imminently. Class IV credits are generally rated D.

CLASS V – “Fully Reserved”

The credit has defaulted and payments have occurred. The claim payments are scheduled and known, reserves have been established to fully cover such claims, and no claim volatility is expected.

 

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The population of credits evaluated in Ambac’s loss reserve process are: i) all adversely classified credits (Class IA through V) and ii) non-adversely classified credits (Class I and SL) which had an internal Ambac rating downgrade since the transaction’s inception. One of two approaches is then utilized to estimate expected losses to ultimately determine if a loss reserve should be established. The first approach is a statistical expected loss approach, which considers the likelihood of all possible outcomes. The “base case” statistical expected loss is the product of: (i) the net par outstanding on the credit; (ii) internally developed historical default information (taking into consideration internal ratings and average life of an obligation); (iii) internally developed loss severities; and (iv) a discount factor. The loss severities and default information are based on rating agency information, are specific to each bond type and are established and approved by Ambac’s senior risk management professionals and other senior management. For certain credit exposures, Ambac’s additional monitoring and loss remediation efforts may provide information relevant to adjust this estimate of “base case” statistical expected losses. As such, loss severities used in estimating the “base case” statistical expected losses may be adjusted based on the professional judgment of the surveillance analyst monitoring the credit with the approval of senior management. Analysts may accept the “base case” statistical expected loss as the best estimate of expected loss or assign multiple probability weighted scenarios to determine an adjusted statistical expected loss that better reflects management’s view of a given transaction’s expected losses as well as the potential for additional remediation activities (i.e. commutations).

The second approach entails the use of cash flow based models to estimate expected losses (future claim payments, net of potential recoveries, expected to be paid to the holder of the insured financial obligation). Ambac’s surveillance group will consider the likelihood of all possible outcomes and develop appropriate cash flow scenarios. This approach can include the utilization of market accepted software models to develop net future claim payment estimates. We have utilized such models primarily for residential mortgage-backed and student loans exposures. In general, these models use historical performance of the collateral pools in order to then assume or derive future performance characteristics, such as default and voluntary prepayment rates, which in turn determine projected future claim payments. In this approach a probability-weighted expected loss estimate is developed based on assigning probabilities to multiple net cash flow scenarios and applying an appropriate discount factor. Additionally, we assign a probability to the issuer’s ability to refinance an insured issue and/or Ambac’s ability to execute a potential settlement (i.e. commutation) of the insurance policy, including the impact on future installment premiums. The commutation scenarios and the related probabilities of occurrence vary by transaction, depending on our view of the likelihood of negotiating such a transaction with issuers and/or investors. The methodology used to estimate the most substantial amount of the potential recovery component of expected losses is discussed in the “RMBS Representation and Warranty Subrogation Recoveries” section below.

The discount factor applied to the statistical expected loss approach is based on a risk-free discount rate corresponding to the remaining expected weighted-average life of the exposure and the exposure currency. For the cash flow scenario approach, discount factors are applied based on a risk-free discount rate term structure and correspond to the date of each respective cash flow payment or recovery and the exposure currency. Discount factors are updated for the current risk-free rate each reporting period.

Ambac establishes loss expense reserves based on our estimate of expected net cash outflows for loss expenses, such as legal and consulting costs.

No final decision has been announced by the Rehabilitator with respect to effectuating or amending the Segregated Account Rehabilitation Plan. Possible modifications to the Segregated Account Rehabilitation Plan, or additional orders from the Rehabilitation Court, with respect to the form, amount and timing of satisfying permitted policy claims could have a material effect on the estimation of loss reserves. See Note 1 for additional information about the Segregated Account Rehabilitation Plan.

 

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RMBS Representation and Warranty Subrogation Recoveries:

Ambac records subrogation recoveries as a component of its loss reserve estimate, related to securitized loans in RMBS transactions that breached certain representations and warranties described herein. Generally, the sponsor of an RMBS transaction provided representations and warranties with respect to the securitized loans, including representations with respect to the loan characteristics, the absence of fraud or other misconduct in the origination process, and attesting to the compliance of loans with the prevailing underwriting policies. In such cases, the sponsor of the transaction is contractually obligated to repurchase, cure or substitute collateral for any loan that breaches the representations and warranties. Ambac or its counsel have engaged consultants with significant mortgage underwriting experience to review the underwriting documentation for mortgage loans underlying certain insured RMBS transactions which exhibited exceptionally poor performance. Factors which Ambac believes to be indicative of poor performance include (i) increased levels of early payment defaults, (ii) significant numbers of loan liquidations or charge-offs and resulting high levels of losses, and (iii) rapid elimination of credit protections inherent in the transactions’ structures. With respect to item (ii), “loan liquidations” refers to loans for which the servicer has liquidated the related collateral and the securitization has realized losses on the loan; “charge-offs” refers to loans which have been written off as uncollectible by the servicer, generating no recoveries to the securitization, and may also refer to the unrecovered balance of liquidated loans. In either case, the servicer has taken actions to recover against the collateral, and the securitization has incurred losses to the extent such actions did not result in full repayment of the borrower’s obligations.

Generally, subsequent to the forensic exercise of examining loan files to ascertain whether the loans conformed to the representations and warranties, we submit nonconforming loans for repurchase to the contractual counterparty bearing the repurchase obligation, which is typically the transaction sponsor. To effect a repurchase, depending on the transaction, the sponsor is obligated to repurchase the loan at (a) for loans which have not been liquidated or charged off, either (i) the current unpaid principal balance of the loan, (ii) the current unpaid principal balance plus accrued unpaid interest, or (iii) the current unpaid principal balance plus accrued interest plus unreimbursed servicer advances/expenses and/or trustee expenses resulting from the breach of representations and warranties that trigger the repurchase, and (b) for a loan that has already been liquidated or charged-off, the amount of the realized loss (which in certain cases may exclude accrued unpaid interest). In cases where loans are repurchased by a sponsor, the effect is typically to offset current period losses and then to increase the over-collateralization of the securitization, depending on the extent of loan repurchases and the structure of the securitization. Specifically, the repurchase price is paid by the sponsor to the securitization trust which holds the loan. The cash becomes an asset of the trust, replacing the loan that was repurchased by the sponsor. On a monthly basis the cash received related to loan repurchases by the sponsor is aggregated with cash collections from the underlying mortgages and applied in accordance with the trust indenture payment waterfall. This payment waterfall typically includes principal and interest payments to the note holders, various expenses of the trust and reimbursements to Ambac, as financial guarantor, for previously paid claims. Notwithstanding the reimbursement of previous claim payments, to the extent there continues to be insufficient cash in the waterfall in the current month to make scheduled principal and interest payments to the note holders, Ambac is required to make additional claim payments to cover this shortfall. Ambac may also receive payments directly from transaction sponsors in settlement of their repurchase obligations pursuant to negotiated settlement agreements or otherwise as a result of related litigation.

Ambac’s approach in estimating subrogation recoveries is a function of the population of loan files the sponsor makes available for review. In transactions where Ambac has been provided access to loans files for all loans in the original loan pool, we utilize a “random sample” approach to estimate subrogation recoveries. In transactions where Ambac has only obtained loan files for seriously delinquent or defaulted loans, we utilize an

 

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“adverse sample” approach to estimate subrogation recoveries. Both approaches are described in further detail below. We do not include estimates of damages in our estimate of subrogation recoveries under either approach. The amount the sponsors believe to be their liability for these breaches is not known; however, certain large financial institutions which have served as sponsors for certain transactions that Ambac has insured have disclosed that they have established reserves related to claims by financial guarantors and others for breaches of representations and warranties in RMBS transactions.

While the obligation by sponsors to repurchase loans with material breaches is clear, generally the sponsors have not yet honored those obligations. Ambac has utilized the results of the above described loan file examinations to make demands for loan repurchases from sponsors or their successors and, in certain instances, as a part of the basis for litigation. Ambac’s approach to resolving these disputes has included negotiating with individual sponsors at the transaction level and in some cases at the individual loan level and has resulted in the repurchase of some loans. Ambac has initiated and will continue to pursue lawsuits seeking compliance with the repurchase obligations in the securitization documents.

Ambac has performed the above-mentioned, detailed examinations on a variety of second-lien and first-lien transactions that have experienced exceptionally poor performance. However, the loan file examinations and related estimated recoveries we have reviewed and recorded to date have been limited to only those transactions whose sponsors (or their successors) are subsidiaries of large financial institutions, all of which carry an investment grade rating from at least one nationally recognized rating agency, or are otherwise deemed to have the financial wherewithal to live up to their repurchase obligations. While our contractual recourse is generally to the sponsor/subsidiary, rather than to the parent, each of these institutions has significant financial resources and may have an ongoing interest in mortgage finance, and we therefore believe that the financial institution/parent would ultimately assume financial responsibility for these obligations if the sponsor/subsidiary is unable to honor its contractual obligations or pay a judgment that we may obtain in litigation. Additionally, in the case of successor institutions, we are not aware of any provisions that explicitly preclude or limit the successors’ ability to honor the obligations of the original sponsor. Certain successor financial institutions have made significant payments to certain claimants to settle breaches of representations and warranties perpetrated by sponsors that have been acquired by such financial institutions. As a result, we did not make significant adjustments to our estimated subrogation recoveries with respect to the credit risk of these sponsors or their successors. We believe that focusing our loan remediation efforts on large financial institutions first will provide the greatest economic benefit to Ambac. Ambac retains the right to review other RMBS transactions for representations and warranties breaches, and management continues to review transactions for inclusion in this effort.

Our ability to recover the RMBS subrogation recoveries is subject to significant uncertainty, including risks inherent in litigation, collectability of such amounts from counterparties (and/or their respective parents and affiliates), timing of receipt of any such recoveries, regulatory intervention which could impede our ability to take actions required to realize such recoveries and uncertainty inherent in the assumptions used in estimating such recoveries.

Random sample approach:

The random sample approach to estimate subrogation recoveries was based on obtaining a random sample of the original loans in the pool, using a protocol developed by a statistical expert. In this approach, the ratio of: (a) loans identified in the sample as having materially breached representations and warranties to (b) the total loan sample size, is applied (extrapolated) to the sum of realized and estimated future collateral pool losses to determine an estimated repurchase obligation. We limit the estimated repurchase obligation by ever-to-date incurred losses, with respect to the remaining steps in this approach.

 

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Multiple probability-weighted scenarios were then developed by applying various realization factors to the estimated repurchase obligation. The realization factors in these scenarios were developed using Ambac’s own assumptions about the likelihood of outcomes based on all the information available to it including, but not limited to, (i) discussions with external legal counsel and their views on ultimate settlement and/or litigation outcomes, (ii) experience with loan put back negotiations where the existence of a material breach was debated and negotiated at the loan level, and (iii) the pervasiveness of the breach rates. The probability weightings are developed based on the unique facts and circumstances for each transaction. The sum of these probability-weighted scenarios represents the undiscounted subrogation recovery, which is then discounted using a factor derived from a risk-free discount rate term structure that corresponds to the date of each respective recovery. Discount factors are updated for the current risk-free rate each reporting period.

Adverse sample approach:

The adverse sample approach is used in transactions where Ambac was only given access by the sponsor to impaired loan files, meaning loans greater than 90 days past due, charged off, or in foreclosure, REO, or bankruptcy. This limitation precluded us from selecting a valid random sample from the entire loan pool. Consequently, the adverse sample approach utilized the following subsets of loans to estimate a repurchase obligation: i) loans identified as breaching representations and warranties (i.e. adverse loans) taken from a sample of impaired loans and ii) transactions identified where the underlying loans have similar attributes, including but not limited to type, vintage and composition, to loans that were included in RMBS settlements between the same sponsor and other parties, and where the transactions had substantially similar representations and warranties ( i.e . “prototype transactions”). The calculation of subrogation recovery with respect to the adverse loan subset was based on the original principal balance of the loans in the adverse sample.

Multiple probability-weighted scenarios were then developed by applying various realization factors to the estimated repurchase obligations under both subsets of loans. The realization factors in these scenarios were developed using assumptions similar to those discussed in the random sample approach above, as well as an internal analysis of the RMBS settlements discussed above. The sum of these probability-weighted scenarios represents the undiscounted subrogation recovery, which is then discounted using a factor derived from a risk-free discount rate term structure that corresponds to the date of each respective recovery. Discount factors are updated for the current risk free rate each reporting period.

Intangible assets:

Insurance intangible : At the Fresh Start Reporting Date, an insurance intangible asset was recorded which represented the difference between the fair value and aggregate carrying value of the financial guarantee insurance and reinsurance assets and liabilities. The carrying values of our financial guarantee insurance and reinsurance contracts will continue to be reported and measured in accordance with existing accounting policies. Pursuant to the Financial Services—Insurance Topic of the ASC, the insurance intangible is to be measured on a basis consistent with the related financial guarantee insurance and reinsurance contracts. The insurance intangible asset will be amortized using a level yield method based on par exposure of the related financial guarantee insurance or reinsurance contracts and will be applied to groups of contracts with similar characteristics. The weighted-average amortization period at Fresh Start Reporting Date was 9.4 years.

VIE intangible : Effective April 30, 2013, Ambac consolidated a VIE which had assets that included finite lived intangible assets associated with its operations. The intangible assets were recorded at their fair value on the consolidation date in the amount of $164,520 and were considered held for use.

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

Pursuant to the Intangible - Goodwill and Other Topic of the ASC, finite lived intangibles held for use are amortized over their useful lives. The useful lives are determined after considering the specific facts and circumstances including, contractual term of any agreement, the long-term strategy for the use of the asset and other economic factors. A VIE intangible held for use is tested for impairment if conditions exist that might indicate the carrying amount of the intangible is not recoverable and exceeds its fair value. Such conditions may include an economic downturn in a geographic market or a change in the assessment of future operations. If such conditions are present, a two-step impairment evaluation is performed. In the first step, a recoverability test is performed by comparing the sum of the estimated undiscounted future cash flows attributable to the intangible asset to its carrying amount. If the undiscounted cash flows are less than the carrying amount, the second step of the test is performed to measure the impairment amount, if any. In the second step, an impairment loss would be recognized to the extent the carrying amount of the intangible exceeds its fair value.

In the period an intangible asset is classified as held for sale, the asset is reported at the lower of carrying value or fair value less costs to sell, with the adjustment reported as a loss through earnings. In subsequent periods, a loss is recognized for any further reduction in fair value less cost to sell. A gain is recognized for any subsequent increase in fair value less cost to sell, but not in excess of the cumulative loss previously recognized. During 2013, management approved plans to sell the VIE intangible assets and such assets were reclassified as held for sale, resulting in a loss from the reduction of their carrying value to fair value less costs to sell in the eight months ended December 31, 2013. Refer to Note 4 for further discussion of the VIE intangibles and their impact on the consolidated financial statements.

Deferred Acquisition Costs:

Financial guarantee insurance costs that vary with and are primarily related to the production of business had been deferred. These costs included compensation of certain employees, premium taxes, ceding commissions payable on assumed business and certain other underwriting expenses, net of ceding commissions receivable on ceded business. Certain future costs associated with installment premium contracts, such as premium taxes and reinsurance ceding commissions, are estimated and present valued using the same assumptions used to estimate the related premiums receivable described in the “Net Premiums Earned” section above. Premium taxes and reinsurance commissions were deferred in their entirety. Ambac has not undertaken any new business since 2008; accordingly, we have not deferred any costs in the periods presented, except for changes in estimates for premiums taxes and ceding commissions. Costs associated with credit derivatives are expensed as incurred. Prior to the Fresh Start Reporting Date, deferred acquisition costs were expensed in proportion to premium revenue recognized. Amortization of deferred acquisition costs is adjusted to reflect acceleration of premium revenue due to refunding or calls and to reflect changes in the estimated lives of certain obligations. Amortization of deferred acquisition costs amounted to $6,480 and $25,465 for the four months ended April 30, 2013 and the year ended December 31, 2012, respectively. A premium deficiency exists if the sum of: (i) unearned premium, and (ii) losses and loss expense reserve, net of reinsurance and subrogation recoveries, recognized as of the balance sheet date, is less than the sum of: (i) the present value of expected loss and loss expenses, (ii) present value of future expected servicing and maintenance costs, and (iii) unamortized deferred acquisition costs. The present value of the expected loss and loss expenses and future expected servicing and maintenance costs are discounted at the rate of return on Ambac’s investment portfolio. If a premium deficiency were to exist, unamortized deferred acquisition costs would be reduced by a charge to expense and a liability would be established for any remaining deficiency. The remaining deferred costs at the Fresh Start Reporting Date were reduced to their fair value of zero; refer to Note 3 for further discussion of fresh start reporting.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Investments:

The Investments - Debt and Equity Securities Topic of the ASC requires that all debt instruments and certain equity instruments be classified in Ambac’s Consolidated Balance Sheets according to their purpose and, depending on that classification, be carried at either cost or fair market value. Ambac’s non-VIE investment portfolio is accounted for on a trade-date basis and consists primarily of investments in fixed income securities that are considered available-for-sale as defined by the Investments - Debt and Equity Securities Topic of the ASC. Available-for-sale securities are reported in the financial statements at fair value with unrealized gains and losses, net of deferred taxes, reflected in Accumulated Other Comprehensive Income in Stockholders’ Equity and computed using amortized cost as the basis. For purposes of computing amortized cost, premiums and discounts are accounted for using the effective interest method over the remaining term of the securities. For securities that are not structured securities with a large underlying pool of homogenous loans, such as corporate and municipal bonds, premiums and discounts are amortized or accreted over the remaining term of the securities even if they are callable. Premiums and discounts on mortgage-backed and asset-backed securities are adjusted for the effects of actual and anticipated prepayments on a retrospective basis.

Beginning in 2013, Ambac’s investment portfolio also included equity interests in pooled investment funds. Such equity interests in the form of common stock or in-substance common stock are classified as trading securities. Equity interests in pooled funds organized as limited liability companies are recorded under the fair value option. Investments classified either as trading or fair value option securities are reported as Other investments on the Consolidated Balance Sheet at fair value with changes in fair value reported through Net investment income on the Statement of Comprehensive Income. The majority of such investments are accumulating funds, meaning that regular distributions of earnings are not anticipated but will be reflected in the Net Asset Value reported by the respective fund managers. Investments in pooled funds have been classified as trading or fair value option securities so that any undistributed earnings of the funds may be reflected in Net investment income as they occur.

Fair value is based primarily on quotes obtained from independent market sources. When quotes are not available, valuation models are used to estimate fair value. These models include estimates, made by management, which utilize current market information. The quotes received or modeled valuations could differ materially from amounts that would actually be realized in the market. Realized gains and losses on the sale of investments are determined on the basis of specific identification.

VIE investments in fixed income securities are carried at fair value under the fair value option in accordance with the Financial Instruments Topic of the ASC Topic 825. For additional information about VIE investments, including fair value by asset-type, see Note 4.

Ambac has a formal impairment review process for available for sale securities in its investment portfolio. Ambac conducts a review each quarter to identify and evaluate investments that have indications of possible impairment that is other than temporary in accordance with the Investments - Debt and Equity Securities Topic of the ASC. Factors considered when assessing impairment include: (i) fair values that have declined by 20% or more below amortized cost; (ii) market values that have declined by 5% or more but less than 20% below amortized cost for a continuous period of at least six months; (iii) recent downgrades by rating agencies; (iv) the financial condition of the issuer and financial guarantor, as applicable, and an analysis of projected defaults on the underlying collateral; (v) whether scheduled interest payments are past due; and (vi) whether Ambac has the ability and intent to hold the security for a sufficient period of time to allow for anticipated recoveries in fair value. If we believe a decline in the fair value of a particular investment is temporary, we record the decline as an unrealized loss net of tax in Accumulated Other Comprehensive Income in Stockholders’ Equity on our

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Consolidated Balance Sheets. If management either: (i) has the intent to sell its investment in a debt security or (ii) determines that the Company more likely than not will be required to sell the debt security before its anticipated recovery of the amortized cost basis less any current period credit impairment, then an other-than-temporary impairment charge must be recognized in earnings, with the amortized cost of the security being written-down to fair value. If these conditions are not met, but it is determined that a credit loss exists, the credit impairment loss is recognized in earnings, and the other-than-temporary amount related to all other factors is recognized in other comprehensive income. For fixed income securities that have other-than-temporary impairments in a period, the previous amortized cost of the security less the amount of the other-than-temporary impairment recorded through earnings, becomes the investment’s new cost basis. Ambac accretes the new cost basis to par or to the estimated future cash flows to be recovered over the expected remaining life of the security.

The evaluation of securities for impairment is a quantitative and qualitative process, which is subject to risks and uncertainties and is intended to determine whether, and to what extent, declines in the fair value of investments should be recognized in current period earnings. The risks and uncertainties include changes in general economic conditions, the issuer’s or guarantor’s financial condition and/or future prospects, the effects of regulatory actions on the investment portfolio, the performance of the underlying collateral, the effects of changes in interest rates or credit spreads and the expected recovery period. With respect to Ambac-wrapped securities guaranteed under policies that have been allocated to the Segregated Account, future cash flows used to measure credit impairment represents the sum of (i) the bond’s intrinsic cash flows and (ii) the estimated fair value of Ambac claim payments. The Segregated Account has been making interim cash payments in amounts equal to 25% of permitted Segregated Account policy claims since September 2012 (plus, in certain cases, Supplemental Payments as described in Note 1). No final decision has been announced by the Rehabilitator with respect to effectuating or amending the Segregated Account Rehabilitation Plan. Possible modifications to the Segregated Account Rehabilitation Plan, or additional orders from the Rehabilitation Court, with respect to the form, amount and timing of satisfying permitted policy claims could have a material effect on the recognition of other-than-temporary impairment for, and the fair value of, Ambac-wrapped securities. See Note 1 for additional information about the Segregated Account Rehabilitation Plan.

Ambac’s assessment of a decline in value reflects management’s current judgment regarding facts and circumstances specific to a security and the factors noted above, including whether Ambac will continue to have the intent and ability to hold temporarily impaired securities until recovery. If that judgment changes, Ambac may ultimately record a charge for other-than-temporary impairment in future periods.

Derivative Contracts:

The Company has entered into derivative contracts both for trading purposes and to hedge certain economic risks inherent in its financial asset and liability portfolios. Derivatives for trading include credit derivatives issued as a form of financial guarantee, interest rate and currency swaps, and futures contracts. None of Ambac’s derivative contracts were designated as hedges under the Derivatives and Hedging Topic of the ASC. Ambac’s credit derivative contracts are accounted for at fair value since they do not qualify for the financial guarantee scope exception under the Derivatives and Hedging Topic of the ASC. Changes in fair value of credit derivatives are recorded in Net change in fair value of credit derivatives on the Consolidated Statements of Total Comprehensive Income. Ambac provided interest rate and currency swaps principally to states, municipalities and their authorities and asset-backed issuers in connection with their financings. In 2012, Ambac terminated its remaining currency swap transactions. Changes in fair value of interest rate and currency swaps are recorded in Derivative product revenue on the Consolidated Statements of Total Comprehensive Income. VIEs consolidated under the Consolidation Topic of the ASC entered into derivative contracts to meet specified purposes within the securitization structure. Changes in fair value of consolidated VIE derivatives are included within (Loss) income

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

on variable interest entities on the Consolidated Statements of Total Comprehensive Income. The Company had certain options to repurchase Ambac Assurance’s surplus notes at a discount to par value which were required to be accounted for as stand-alone derivatives. Changes in fair value of these options, which were exercised in June 2012, were recorded in Other income on the Consolidated Statements of Total Comprehensive Loss.

All derivatives are recorded on the Consolidated Balance Sheets at fair value on a gross basis; assets and liabilities are netted by customer only when a legal right of offset exists. Ambac has determined that the amounts recognized for the right to reclaim cash collateral or the obligation to return cash collateral may not be used to offset amounts due under the derivative instruments in the normal course of settlement. Therefore, such amounts are not offset against fair value amounts recognized for derivative instruments executed with the same counterparty under the same master netting arrangement. Refer to Note 12 for further discussion of the Company’s use of derivative instruments and their impact of the consolidated financial statements. Refer to Note 10 for further description of the methodologies used to determine the fair value of derivative contracts, including model inputs and assumptions where applicable.

Loans:

Loans are reported at either their outstanding principal balances or at fair value. For loans reported at their outstanding principal balances (non-VIE loans), interest income is accrued on the unpaid principal balance. A loan is considered impaired when, based on the financial condition of the borrower, it is probable that Ambac will be unable to collect all principal and interest due according to the contractual terms of the loan agreement. Loan collectability is monitored by Ambac’s surveillance group. Loans held by VIEs consolidated as required under the Consolidation Topic of the ASC are primarily carried at fair value, with changes in fair value recorded through earnings as part of (Loss) income on variable interest entities.

Obligations under Investment Agreements and Investment Repurchase Agreements:

Ambac provides investment agreements principally to asset-backed and structured finance issuers, states, municipalities and municipal authorities, whereby Ambac agrees to pay an agreed-upon rate of interest based on funds deposited. Proceeds from these investment agreement and investment repurchase agreement obligations are used to invest in fixed income investments. Interest income from these investments is included in Net investment income.

Obligations under investment agreements are reported as liabilities on the Consolidated Balance Sheets at their (i) principal value less unamortized discount for Predecessor Ambac and (ii) at their fair value at Fresh Start Date less unamortized discount for Successor Ambac. The carrying value of these obligations is adjusted for principal paid and interest credited to the account. Interest expense is computed based upon daily outstanding liability balances at rates and periods specified in the agreements adjusted for accretion of discount.

Subject to a negotiation among the parties, investment agreements may be settled for an amount different than the carrying value of the obligation. Any difference between the settlement payment and carrying value of the terminated investment agreement obligation is reported in Net realized losses on extinguishment of debt on the Consolidated Statements of Total Comprehensive Income.

Income Taxes:

Ambac files a consolidated U.S. Federal income tax return with its subsidiaries. Ambac UK files tax returns in both the United Kingdom and Italy (for its Milan branch). Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the period that includes the enactment date.

Ambac evaluates our deferred income taxes quarterly to determine if valuation allowances are required. The Income Taxes Topic of the ASC requires that companies assess whether valuation allowances should be established against their deferred tax assets based on the consideration of all available evidence using a ‘more likely than not” standard. In making such judgments, significant weight is given to evidence that can be objectively verified.

The level of deferred tax asset recognition is influenced by management’s assessment of future profitability, which depends on the existence of sufficient taxable income of the appropriate character (ordinary vs. capital) within the carry back or carry forward periods available under the tax law. In the event that we determine that we would not be able to realize all or a portion of our deferred tax assets in the future, we would reduce such amounts through a charge to the Statement of Total Comprehensive Income in the period in which that determination is made.

The Income Taxes Topic of the ASC provides a framework to determine the appropriate level of tax reserves for uncertain tax positions. This framework prescribes a more-likely-than-not threshold for financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. Ambac also accrues interest and penalties related to these unrecognized tax benefits in the provision for income taxes.

Postretirement and Postemployment Benefits:

Ambac provides postretirement and postemployment benefits, including health and life benefits covering employees who meet certain age and service requirements. Ambac accounts for these benefits under the accrual method of accounting. Amounts related to the postretirement health benefits liability are established and charged to expense based on actuarial determinations. Effective August 1, 2005, new employees were not eligible for postretirement benefits.

Stock Compensation Plan:

The Ambac 2013 Incentive Compensation Plan (the “Equity Plan”) provides for the granting of stock options, restricted stock, stock appreciation rights, restricted stock units (“RSUs”), performance units and other awards that are valued or determined by reference to the common stock to employees and directors. A maximum of 4,000,000 common shares may be used for awards, of which 3,779,146 common shares were available for future grant under the Equity Plan at December 31, 2013.

Ambac recognizes compensation costs for all equity classified awards granted at fair value with an estimation of forfeitures for all unvested shares. The share-based awards only require future service and accordingly the respective fair value is amortized over the relevant service period.

Depreciation and Amortization:

Depreciation of furniture and fixtures and electronic data processing equipment is charged over the estimated useful lives of the respective assets, ranging from three to five years, using the straight-line method. Amortization of leasehold improvements is charged over the remaining term of the operating leases using the straight-line method.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Foreign Currency:

Financial statement accounts expressed in foreign currencies are translated into U.S. dollars in accordance with the Foreign Currency Matters Topic of the ASC. Functional currency assets and liabilities of Ambac’s foreign subsidiaries are translated into U.S. dollars using exchange rates in effect at the balance sheet dates and the related translation adjustments are included as a component of Accumulated other comprehensive income, net of any related taxes in Stockholders’ deficit. Functional currencies are generally the currencies of the local operating environment. Income statement accounts expressed in functional currencies are translated using average exchange rates.

Foreign currency transaction gains and losses arising from sales of foreign denominated investment securities are reflected in Net realized investment gains. Foreign currency transaction gains and losses arising from cash denominated in non-functional currencies as well as the re-measurement of non-functional currency premium receivables are reflected in Other income. The Consolidated Statements of Total Comprehensive Income include pre-tax (losses) gains from such foreign exchange items of $(12,372) for the eight months ended December 31, 2013, $8,694 for the four months ended April 30, 2013 and $(7,894) for the year ended December 31, 2012.

Recently Adopted and Recently Issued Accounting Standards:

Adopted:

Effective January 1, 2013, Ambac adopted ASU No. 2011-11, Disclosures about Offsetting Assets and Liabilities, and ASU No. 2013-01, Clarifying the Scope of Disclosures about Offsetting Assets and Liabilities retrospectively for all periods presented. Upon the adoption of these ASUs, Ambac presented the offsetting disclosure requirements in Note 10, Derivative Instruments.

Effective January 1, 2013, Ambac adopted ASU No. 2013-02, Reporting of Amounts Reclassified out of Accumulated Other Comprehensive Income. Upon the adoption of this ASU, Ambac presented the changes in the accumulated balances by component of other comprehensive income and the corresponding effects on net income by line item for the reclassifications out of accumulated other comprehensive income, in Note 5, Comprehensive Income.

Issued:

In July 2013, the FASB issued ASU 2013-11, Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists . The objective of this ASU is to eliminate diversity in practice in the presentation of unrecognized tax benefits. The ASU requires an entity to present an unrecognized tax benefit in the financial statements as a reduction to a deferred tax asset for an NOL carryforward, a similar tax loss, or a tax credit carryforward except when: i) an NOL carryforward, a similar tax loss, or a tax credit carryforward is not available as of the reporting date under the governing tax law to settle taxes that would result from the disallowance of the tax position and ii) the entity does not intend to use the deferred tax asset for this purpose. If either of these conditions exists, an entity should present an unrecognized tax benefit in the financial statements as a liability and should not net the unrecognized tax benefit with a deferred tax asset. The ASU is effective prospectively for reporting periods beginning after December 15, 2013, with early adoption permitted. Ambac will adopt the ASU on January 1, 2014. The adoption of this ASU will not have a material effect on Ambac’s financial statements.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

3.        FRESH START FINANCIAL STATEMENT REPORTING

Below is a discussion of key principles and assumptions used in the implementation of fresh start financial statement reporting (“Fresh Start”) as a result of the Company’s emergence from Chapter 11.

Enterprise Value / Reorganization Value Determination:

In conjunction with formulating the Reorganization Plan, Ambac directed a third-party financial advisor to prepare a valuation analysis to determine Ambac’s estimated enterprise value, which was estimated to be $185,000. The enterprise value, which represents the Company’s equity value attributable to common stockholders and warrant holders immediately after restructuring, was included in the Disclosure Statement filed by Ambac with the Bankruptcy Court in September 2011. Management believed that this enterprise value of $185,000 would provide the best representation of the Company’s post-emergence reorganization value in accordance with the Reorganizations Topic of the ASC. The enterprise value was based on a discounted cash flow analysis using estimates of after-tax free cash flows through 2045. The terminal date of 2045 was used as the expected run-off of Ambac Assurance’s insurance operations will be substantially completed by 2045. The valuation uses a range of discount rates between 12% and 17%, which considered the cost of capital associated with a set of comparable insurance holding companies, indicative ranges suggested by third parties during Ambac’s 2008 capital raise process and discussions with financial professionals knowledgeable about the insurance industry.

The net cash flows used in the valuation analysis include income relating to, but not limited to, interest and principal on notes receivable; interest receipts on invested assets; reimbursement from Ambac Assurance for operating expenses; tolling payments and the upfront cash payment from Ambac Assurance, which are outlined in the Mediation Agreement and further described below. Expenses include operating expenses; intercompany settlements and tax payments. In addition, the long-term financial projections include value from junior surplus notes issued to Ambac by the Segregated Account, excess net operating tax losses (the “NOL Valuation”) and a residual equity dividend from Ambac Assurance.

For the purposes of estimating Ambac’s enterprise value, the following assumptions were made in accordance with the terms of the Mediation Agreement and the Reorganization Plan with respect to future consideration to be received by Ambac from Ambac Assurance or the Segregated Account: :

 

  (i) $5,000 per annum reimbursement for operating expenses through March 2017;

 

  (ii)

Tolling payments on NOLs according to the tranches and tolling rates, as outlined in the Reorganization Plan. In conjunction with the Reorganization Plan, Ambac and Ambac Assurance entered into the Amended TSA, which provides that certain NOLs (“Allocated NOL Amount”) generated by Ambac’s affiliated group (including Ambac Assurance) for federal tax purposes on or prior to September 30, 2011 (the “Determination Date”) shall be available for use by the Ambac Assurance Subgroup subject to certain NOL tolling payments by Ambac Assurance to Ambac. Ambac Assurance Subgroup is defined as Ambac Assurance and any direct or indirect subsidiary of Ambac Assurance that would be treated as an includable corporation of an affiliated group of corporations under the Internal Revenue Code. The Allocated NOL Amount is $3.65 billion which may be subject to change from future audit adjustments. Under the terms of the Amended TSA, the Ambac Assurance Subgroup may utilize the Allocated NOL Amount in exchange for tolling payments that are calculated based on the amount of notional federal tax liability that would have been imposed on the Ambac Assurance Subgroup if such NOLs were not available for its use. The tolling payments due from Ambac Assurance to Ambac for the use of the Allocated NOL are determined as a percentage of this notional federal tax liability as follows: a) the first $0.479 billion of Allocated NOL – 15%, b) the next

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

  $1.057 billion of Allocated NOL – 40%, c) the next $1.057 billion of Allocated NOL – 10%, d) the next $1.057 billion of Allocated NOL – 15%.

The Amended TSA also provides for tolling payments from Ambac Assurance to Ambac for the use of NOLs to determine the Ambac Assurance Subgroup’s alternative minimum tax (“AMT”) liability using a similar schedule for the use of the Allocated NOL Amount. However the tolling payments for the use of NOLs for AMT purposes shall be subject to certain credits that may be used to offset the amounts due from Ambac Assurance for the use of such AMT NOLs under the Amended TSA. These credits may be carried forward into future taxable periods to offset future payment under the Amended TSA, which may not exceed, in the aggregate, $60 million.

The estimated NOL tolling payments utilized in Ambac’s enterprise value were estimated based on financial projections of the Ambac Assurance Subgroup’s taxable income;

 

  (iii) $30,000 in upfront cash, which Ambac Assurance can apply as a credit for up to $15,000 of future tolling payments;

 

  (iv) $350,000 of junior surplus notes, assumed to accrue interest at a rate of 5.1% per annum and to be paid down in 2045; and

 

  (v) following March 2017, an additional $4,000 per annum reimbursement for operating expenses (the “Additional Opex Subsidy”). There is uncertainty as to whether or not the Additional Opex Subsidy will be approved by the Rehabilitator and, if approved, for what period of time it would be in effect.

The NOL Valuation relies on several key assumptions relating to the use of NOLs in a new corporate opportunity. The NOL Valuation assumes that Ambac raises capital to acquire additional assets in a manner that complies with the relevant tax rules related to NOL usage and utilizes the NOL to shelter, to the greatest extent permitted by the tax law, any tax that otherwise would be payable from the taxable income generated by the acquired assets. The required capital is assumed to be raised as equity in a range from $135,000 to $190,000. The equity capital is assumed to be invested in portfolios similar in nature to Ambac Assurance. The following assumptions were used to value the tax savings arising from the newly acquired entity’s utilization of the NOLs: (i) compounded annual rate of return on investment of approximately 6%—8%; (ii) a 25%—35% discount rate, the assumed equity rate of return an investor would target upon making such an investment; and (iii) an assumed expiration of the NOLs in 2030 in accordance with their 20-year life.

Dividends and other expected cash flows from Ambac Assurance are highly contingent upon the financial performance of Ambac Assurance. Ambac Assurance’s financial performance is sensitive to a number of key variables, including: (i) loss estimates and loss experience; (ii) remediation and recoveries; (iii) additional value creation initiatives; (iv) the form of the Segregated Account Rehabilitation Plan, including the treatment of Segregated Account claims; (v) investment portfolio yield and mix, including intercompany loan repayment assumptions; (vi) installment premiums and operating expenses; and (vii) value, if any, received from Ambac UK and Everspan.

The projections and other financial information provided in connection with the above-described valuation analysis were based on information available to us at that time and we have not and do not intend to update such information. Projections are inherently subject to uncertainties and risks and such projections and other financial information reflect numerous assumptions as of the date of the Disclosure Statement. Our actual results and financial condition may vary significantly from those contemplated by the projections and other financial information provided to the Bankruptcy Court.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

In accordance with Fresh Start, the Company adjusted the historical carrying values of its assets, liabilities and noncontrolling interests to fair value, with the exception of deferred taxes and liabilities associated with post-retirement benefits, which were recorded in accordance with the Income Taxes and Compensation Topics of the ASC, respectively. The sum of the enterprise value, the adjusted value of liabilities and the adjusted value of noncontrolling interests equals the Company’s reorganization value, which approximates the fair value of the Company’s assets. Management also evaluated, in accordance with the Business Combinations Topic of the ASC, whether there are other identifiable intangible assets to be recognized separately from goodwill and determined that no other identifiable intangible assets of a material nature, except for the insurance intangible asset related to financial guarantees, should be recognized as part of Fresh Start. The portion of the reorganization value that could not be attributed to specific tangible or identified intangible assets of the emerging company was recorded as goodwill. The reorganization value approximates the amount a willing buyer would pay for the assets of the entity, before considering liabilities or noncontrolling interests, immediately after restructuring.

The following table represents a reconciliation of the enterprise value to the reorganization value, and the determination of goodwill:

 

Enterprise value

   $ 185,000   

Add: Fair value of liabilities

     28,393,020   

Add: Fair value of noncontrolling interest

     275,415   
  

 

 

 

Reorganization value allocated to assets

     28,853,435   

Less: Fair value of identified tangible and intangible assets

     28,338,924   
  

 

 

 

Reorganization value in excess of fair value of assets (goodwill)

   $ 514,511   
  

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Reorganized Condensed Consolidated Balance Sheet:

The implementation of the Reorganization Plan and the adoption of Fresh Start in the Company’s condensed consolidated balance sheet as of the Fresh Start Reporting Date are as follows:

AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Reorganized Condensed Consolidated Balance Sheet

As of April 30, 2013

 

     Predecessor
Ambac
    Reorganization
Item Adjustments
    Fresh Start
Adjustments
    Successor
Ambac
 
(Dollars in Thousands)    (Unaudited)     (Unaudited)     (Unaudited)     (Unaudited)  

Assets:

        

Investments

   $ 6,457,264      $ —        $ —        $ 6,457,264   

Cash

     254,851        (101,900 ) (A)         152,951   

Receivable for securities sold

     682            682   

Investment income due and accrued

     37,961            37,961   

Premium receivables

     1,531,631            1,531,631   

Reinsurance recoverable on paid and unpaid losses

     151,311            151,311   

Deferred ceded premium

     166,212            166,212   

Subrogation recoverable

     533,673            533,673   

Deferred acquisition costs

     184,953          (184,953 ) (C)       —     

Loans

     8,857          (1,575 ) (C)       7,282   

Derivative assets

     121,643            121,643   

Current taxes

     —          4,410 (A)         4,410   

Insurance intangible asset

     —            1,658,972 (C)       1,658,972   

Goodwill

     —            514,511 (C)       514,511   

Other assets

     54,821            54,821   

Variable interest entity assets:

        

Fixed income securities, at fair value

     2,500,565            2,500,565   

Restricted cash

     24,150            24,150   

Investment income due and accrued

     4,851            4,851   

Loans

     14,758,077          (6,024 ) (C)       14,752,053   

Intangible assets

     164,520            164,520   

Other assets

     13,972            13,972   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total assets

   $ 26,969,994      $ (97,490   $ 1,980,931      $ 28,853,435   
  

 

 

   

 

 

   

 

 

   

 

 

 

Liabilities and Stockholders’ Equity:

        

Liabilities:

        

Liabilities subject to compromise

   $ 1,704,641      $ (1,704,641 ) (B)     $ —        $ —     

Unearned premiums

     2,482,314            2,482,314   

Losses and loss expense reserve

     6,106,345            6,106,345   

Ceded premiums payable

     92,468            92,468   

Obligations under investment agreements

     357,373          1,505 (C)       358,878   

Obligations under investment repurchase agreements

     5,926            5,926   

Deferred taxes

     1,580            1,580   

Current taxes

     97,490        (97,490 ) (A)         —     

Long-term debt

     155,271        (973 ) (B)       786,015 (C)       940,313   

Accrued interest payable

     252,788        (821 ) (B)       (18,091 ) (C)       233,876   

Derivative liabilities

     621,645            621,645   

Other liabilities

     88,908          1,837 (C)       90,745   

Payable for securities purchased

     27            27   

Variable interest entity liabilities:

        

Accrued interest payable

     4,318            4,318   

Long-term debt

     15,041,624          (18,586 ) (C)       15,023,038   

Derivative liabilities

     2,425,517            2,425,517   

Other liabilities

     6,030            6,030   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities

   $ 29,444,265      $ (1,803,925   $ 752,680      $ 28,393,020   
  

 

 

   

 

 

   

 

 

   

 

 

 

Stockholders’ (deficit) equity:

        

Preferred stock

   $ —        $ —        $ —        $ —     

Common stock—Predecessor Ambac

     3,080          (3,080 ) (D)       —     

Common stock—Successor Ambac

     —          450 (B)         450   

Additional paid-in capital—Predecessor Ambac

     2,172,027          (2,172,027 ) (D)       —     

Additional paid-in capital—Successor Ambac

     —          184,550 (B)       —          184,550   

Accumulated other comprehensive income

     800,260          (800,260 ) (D)       —     

Accumulated deficit

     (5,697,961     1,521,435 (B)       4,176,526 (C)(D)       —     

Common stock held in treasury at cost

     (410,695       410,695 (D)       —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Total Ambac Financial Group, Inc. stockholders’ (deficit) equity

     (3,133,289     1,706,435        1,611,854        185,000   

Noncontrolling interest

     659,018          (383,603 ) (D)       275,415   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total stockholders’ (deficit) equity

     (2,474,271     1,706,435        1,228,251        460,415   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total liabilities and stockholders’ (deficit) equity

   $ 26,969,994      $ (97,490   $ 1,980,931      $ 28,853,435   
  

 

 

   

 

 

   

 

 

   

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Reorganization Item Adjustments:

Items shown in the Reorganization Items column of the Reorganized Condensed Consolidated Balance Sheet above represent amounts recorded for the implementation of the Reorganization Plan on the Effective Date as described below:

 

(A) Reflects the cash payment of $101,900 to the IRS under a settlement with the IRS on the Fresh Start Reporting Date pursuant to the Reorganization Plan.

 

(B) Reflects the discharge of liabilities subject to the Reorganization Plan, issuance of 45,000,000 and 5,047,138 shares of Successor Ambac common stock and warrants, respectively, to certain claim holders, resulting in a pre-tax gain of $1,521,435 on extinguishment of obligations pursuant to the Reorganization Plan. The following reflects the calculation of the pre-tax gain, which was recorded as a Reorganization item on Predecessor Ambac’s Consolidated Statements of Total Comprehensive Income:

 

Liabilities subject to compromise

   $ 1,704,641   

Long-term debt

     973 (1)  

Accrued interest payable

     821 (1)  
  

 

 

 

Total debt discharged

     1,706,435   

Less: Successor Ambac common stock

     (450 ) (2)  

Successor Ambac additional paid-in capital

     (184,550 ) (2)  
  

 

 

 

Pre-tax gain from cancellation and satisfaction of Predecessor Ambac debt

   $ 1,521,435   
  

 

 

 

 

(1) Represents the proportional reduction in the carrying value of long-term debt and associated accrued interest payable upon the discharge of $8,043 par value of Segregated Account junior surplus notes that were issued to a pre-petition creditor, One State Street, LLC (“OSS”). Pursuant to a settlement agreement (the “OSS Settlement Agreement”) to terminate the Company’s office lease with OSS and to settle all claims among the parties, the outstanding principal amount of the Segregated Account junior surplus notes issued to OSS were reduced based on the value of distribution that OSS received on account of its allowed claim in Ambac’s bankruptcy case. Refer to Note 14 for additional information on the OSS Settlement Agreement.

 

(2) Warrants issued in connection with the Reorganization Plan are classified as equity and initially measured at fair value. The enterprise value of $185,000 is allocated between common stock and warrants based on their relative fair values as quoted on the Effective Date. Successor Ambac common stock of $450 represents the par value of 45,000,000 shares of common stock issued at $0.01 per share. Included in the Successor Ambac additional paid-in capital of $184,550, $11,437 was allocated to 5,047,138 warrants at their initial fair value, with the remaining $173,113 additional paid-in capital attributable to common stock.

Fresh Start Adjustments:

Items shown in the Fresh Start Adjustments column of the Reorganized Condensed Consolidated Balance Sheet above reflects (i) the fair value adjustments to assets and liabilities which are not already reported at fair value under U.S. GAAP accounting rules, including the re-measurement of deferred tax assets and liabilities, if any, which result from such adjustments and (ii) the cancellation of Predecessor Ambac equity accounts attributable to its common shareholders, including the fair value adjustment to noncontrolling interests. These adjustments are described below:

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

(C) The following table summarizes the impact of the fresh start adjustments, which in the aggregate was recorded as a Reorganization item gain on Predecessor Ambac’s Consolidated Statements of Total Comprehensive Income:

 

Deferred acquisition costs

   $ (184,953

Loans (non-VIE)

     (1,575

Insurance intangible asset

     1,658,972   

Goodwill

     514,511   

VIE loans and long-term debt

     12,562   

Obligations under investment agreements

     (1,505

Long-term debt and accrued interest payable

     (767,924

Other liabilities

     (1,837
  

 

 

 

Asset/liability fair value adjustments impacting Reorganization items

     1,228,251   
  

 

 

 

Adjustment to deferred tax provision

     —    
  

 

 

 

Gain on fresh start adjustments

   $ 1,228,251   
  

 

 

 

 

   

Deferred acquisition costs —These deferred costs do not represent future cash flows and therefore the fair value is zero at the Fresh Start Reporting Date.

 

   

Loans —The fair value adjustment for this line item relates to non-VIE loans that have historically been reported at their outstanding principal balance. Refer to Note 10 for a discussion of the valuation methodology used to estimate fair value for each of these financial instruments. Subsequent to the Fresh Start Reporting Date, the fair value discounts are accretable to interest income using the effective interest method over the remaining lives of the loans. Fair value as of April 30, 2013 was calculated using a discounted cash flow approach. As of April 30, 2013, the loans had a principal-weighted average life of 6.81 years and coupon of 5.01%. Discount rates used to determine the fair value of the loans at April 30, 2013 were consistent with the credit quality of the borrowers and had a weighted average of 9.71%.

 

   

Insurance intangible asset —Pursuant to the business combinations guidance for insurance entities in the Financial Services—Insurance Topic of the ASC, Successor Ambac accounted for the insurance and reinsurance assets and liabilities acquired as new contracts, and measured them at fair value in two components as follows:

 

  a. Insurance and reinsurance assets and liabilities measured in accordance with Successor Ambac’s accounting policies for insurance and reinsurance contracts that it issues or holds, as further described in Note 2. These insurance and reinsurance assets and liabilities primarily comprise premium receivables, reinsurance recoverable on paid and unpaid losses, deferred ceded premium, subrogation recoverable, losses and loss expense reserve, unearned premiums and ceded premiums payable; and

 

  b. An insurance intangible asset representing the difference between: 1) the fair value of the contractual insurance and reinsurance assets acquired and liabilities assumed and 2) the amounts described in (a) above. Refer to Note 2 for the subsequent accounting treatment of the insurance intangible asset.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The significant differences between the measurement methods used for fair value and Successor Ambac’s accounting policies for insurance and reinsurance contracts which impact the magnitude of the insurance intangible asset are as follows:

 

Measurement input

 

Fair value methodology

(Refer to Note 10)

 

Successor Ambac accounting policy

(Refer to Note 2)

Cash flows   All projected cash flows to be paid and/or received under the insurance contract are based on management’s expectations of how a market participant would make such estimates.  

Premium receipts are projected based on management’s expectations if the insured obligation is a homogenous pool of assets. For non-homogenous contracts, premium projections are based on contractual cash flows.

 

Loss payments, including subrogation recoveries, are projected using a probability-weighted average of all possible outcomes.

Discount rates  

Discount rates are applied to net cash flows at the policy level as follows:

 

Insurance policies which are in a liability (i.e. net cash outflow) position are discounted using rates which incorporate Ambac’s own credit risk, under the assumption we will be transferring the policies to a market participant with similar credit risk.

 

Insurance policies which are in an asset (i.e. net cash inflow) position are discounted using a hypothetical buyer’s cost of capital and does not assume we would be transferring the policies to a party with similar credit risk.

 

Discount rates are applied to gross cash flows at the policy level as follows:

 

Premiums are discounted at the relevant risk-free rate based on the remaining expected or contractual weighted-average life of the exposure, as applicable.

 

Losses, including subrogation recoveries, are discounted at the relevant risk-free rate.

Profit margin   For insurance policies in a net liability position (i.e. net cash outflow) a profit margin is applied to the discounted value, which represents the additional consideration another market participant would require from Ambac to assume the contract. At April 30, 2013, a profit margin of 17% was applied to the discounted value of insurance policies in a net liability position.   No profit margin is applied.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

   

Goodwill —This amount represents the excess of the reorganization value over the fair value of identified tangible and intangible assets of the emerging company. Changes in the fair values of these assets and liabilities from the current estimated values, as well as changes in assumptions, could significantly impact the amount of recorded goodwill. Accordingly, there can be no assurance that the estimates, assumptions, and values reflected in the valuations will be realized, and actual results could vary materially. Please refer to the above table located immediately prior to the Reorganized Condensed Consolidated Balance Sheet which indicates how goodwill was determined. Refer to Note 2 for the subsequent accounting treatment of goodwill.

 

   

VIE loans and long-term debt —The portion of VIE loans and long-term debt that had not been carried at fair value have been adjusted to fair value for fresh start reporting. Refer to Note 10 for a discussion of the valuation methodology used to estimate fair value for VIE assets and liabilities. Subsequent to the Fresh Start Reporting Date, we have elected to continue accounting for these VIEs at fair value under the fair value option in accordance with the Financial Instruments Topic of the ASC. We believe that the fair value of the investments in these entities provides for greater transparency for recording profit or loss as compared to the equity method under the Investments—Equity Method and Joint Ventures Topic of the ASC. As a result, subsequent changes to fair value will be recorded as (Loss) income on variable interest entities on the Statements of Total Comprehensive Income. Valuation of the long-term debt not previously reported at fair value was determined from third-party quotes. The related VIE loans were valued at April 30, 2013 using a discounted cash flow approach with a discount rate of 5.7%, consistent with the rate implied from the fair value of the VIE’s debt.

 

   

Obligations under investment agreements —These instruments have previously been reported at their principal value less unamortized discount. We have adjusted these items to fair value for fresh start reporting. Refer to Note 10 for a discussion of the valuation methodology used to estimate fair value for obligations under investment agreements and investment repurchase agreements. The fair value discounts and premiums to principal will be amortized into interest expense using the effective interest method over the lives of the respective contracts. Fair values were determined using discounted cash flows at April 30, 2013. Valuation of collateralized obligations represents projected cash flows discounted at LIBOR. Valuation of uncollateralized obligations were discounted using a weighted average discount rate of 9.4% consistent with the credit adjusted discount rate of Ambac Assurance, which provides a financial guarantee for all investment and repurchase agreements.

 

   

Long-term debt and accrued interest payable —All debt liabilities subject to the Reorganization Plan were discharged. The remaining long-term debt is primarily related to surplus notes and junior surplus notes issued by Ambac Assurance and the Segregated Account, which were carried at their face value less unamortized discount. The notes have been adjusted to estimated fair value for fresh start reporting. Refer to Note 10 for a discussion of the valuation methodology used to estimate fair value. The fair value discount will be amortized into interest expense using the effective interest method over the lives of the respective debt. Surplus notes issued in June 2010 were valued at April 30, 2013 using a discounted cash flow approach corroborated by third party quotes. Internally estimated cash flows were discounted at 10.6%. To the extent that the remaining surplus notes rank pari passu with the June 2010 notes, valuations were determined using projected cash flows discounted at the same 10.6%. Junior surplus notes which cannot be paid until all principal and interest is paid on the other surplus notes were valued with projected cash flows discounted at 16.6%. In all cases, projected cash flows assumed full and timely payment under the respective contracts commencing with the next scheduled interest payments date in June 2014.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

   

Other liabilities —This amount reflects an adjustment, based on actuarial evaluation, to re-measure the accumulated postretirement benefit obligation as of the Effective Date, as a result of application of fresh start reporting. This adjustment primarily reflects changes in mortality assumptions.

 

   

Deferred taxes —Deferred taxes were determined in conformity with the accounting requirements for the Income Tax Topic of the ASC. As a result of Fresh Start, a new deferred tax liability was established to recognize the tax effect of the fair value adjustments to identified tangible and intangible assets of the emerging company. This deferred tax liability adjustment was offset by a reduction in the deferred tax valuation allowance, resulting in no change to the deferred tax provision.

 

(D) Reflects the cancellation of Predecessor Ambac equity accounts attributable to its common shareholders and the fair value adjustment of noncontrolling interests, as follows:

 

Common stock

   $ (3,080

Additional paid-in-capital

     (2,172,027

Accumulated other comprehensive income

     (800,260

Accumulated deficit

     2,948,275   

Common stock held in treasury at cost

     410,695   

Noncontrolling interest fair value adjustment

     (383,603 ) (1)  
  

 

 

 

Net adjustment

   $ —    
  

 

 

 

 

(1) Non-controlling interest is primarily related to Ambac Assurance preferred stock issued to third parties. Non-controlling interest was adjusted to fair value based on current quotes from market sources. Noncontrolling interest is a component of equity and as a result, the fair value adjustment is a permanent item that will not be accreted into income.

4.        SPECIAL PURPOSE ENTITIES, INCLUDING VARIABLE INTEREST ENTITIES

Ambac, through its subsidiaries, has engaged in transactions with special purpose entities, including VIEs, in various capacities. Ambac most commonly provides financial guarantees, including credit derivative contracts, for various debt obligations issued by special purpose entities, including VIEs. Ambac has also sponsored two special purpose entities that issued medium-term notes to fund the purchase of certain financial assets. Ambac is also an investor in collateralized debt obligations, mortgage-backed and other asset-backed securities issued by VIEs and its ownership interest is generally insignificant to the VIE and/or Ambac does not have rights that direct the activities that are most significant to such VIE. In 2011, Ambac Assurance entered into a secured borrowing transaction under which two VIEs were created for the purpose of re-securitizing certain invested assets and collateralizing the borrowing. These VIEs are consolidated because Ambac Assurance was involved in their design and holds a significant amount of the beneficial interests issued by the VIEs or guarantees the assets held by the VIEs. VIE debt outstanding to third parties under this secured borrowing transaction was $0 and $14,588 as of December 31, 2013 and December 31, 2012, respectively. The debt represented the senior-most tranche of the securitization structure and was repaid from the non-insurance proceeds of certain RMBS securities which are guaranteed by Ambac Assurance. Such securities had a fair value of $240,150 and $201,329 as of December 31, 2013 and December 31, 2012, respectively. Refer to Note 11-Investments for further discussion of the restrictions on these securities.

Financial Guarantees:

Ambac’s subsidiaries provide financial guarantees in respect of assets held or debt obligations of special purpose entities, including VIEs. Ambac’s primary variable interest exists through this financial guarantee

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

insurance or credit derivative contract. The transaction structures provide certain financial protection to Ambac. This financial protection can take several forms; however, the most common are over-collateralization, first loss and excess spread. In the case of over-collateralization (i.e., the principal amount of the securitized assets exceeds the principal amount of the debt obligations guaranteed), the structure allows the transaction to experience defaults among the securitized assets before a default is experienced on the debt obligations that have been guaranteed by Ambac’s subsidiaries. In the case of first loss, the financial guarantee insurance policy or credit derivative contract only covers a senior layer of losses on assets held or debt issued by special purpose entities, including VIEs. The first loss with respect to the assets is either retained by the asset seller or sold off in the form of equity or mezzanine debt to other investors. In the case of excess spread, the securitized assets contributed to special purpose entities, including VIEs, generate interest cash flows that are in excess of the interest payments on the related debt; such excess cash flow is applied to redeem debt, thus creating over-collateralization. Generally, upon deterioration in the performance of a transaction or upon an event of default as specified in the transaction legal documents, Ambac will obtain certain loss remediation rights. These rights may enable Ambac to direct the activities of the entity that most significantly impact the entity’s economic performance.

We determined that Ambac’s subsidiaries generally have the obligation to absorb the VIE’s expected losses given that they have issued financial guarantees supporting the liabilities (and in certain cases assets) of a VIE. As further described below, we consolidated certain VIEs because: (i) we determined for certain transactions that experienced the aforementioned performance deterioration, that Ambac’s subsidiaries had the power, through voting rights or similar rights, to direct the activities of certain VIEs that most significantly impact the VIE’s economic performance because certain triggers had been breached in these transactions resulting in their ability to exercise certain loss remediation activities, or (ii) due to the passive nature of the VIEs’ activities, Ambac’s subsidiaries’ contingent loss remediation rights upon a breach of certain triggers in the future is considered to be the power to direct the activities that most significantly impact the VIEs’ economic performance. With respect to existing VIEs involving Ambac financial guarantees, Ambac is generally required to consolidate a VIE in the period that applicable triggers result in Ambac having control over the VIE’s most significant economic activities. A VIE is deconsolidated in the period that Ambac no longer has such control, which occurred in connection with insurance policies that were allocated to the Segregated Account, execution of remediation activities on the transaction or amortization of insured exposure, any of which may reduce the degree of Ambac’s control over a VIE.

Ambac Sponsored VIEs:

A subsidiary of Ambac has transferred financial assets to two special purpose entities. The business purpose of these entities was to provide certain financial guarantee clients with funding for their debt obligations. These special purpose entities are legal entities that are demonstrably distinct from Ambac. Ambac, its affiliates or its agents cannot unilaterally dissolve these entities. The permitted activities of these entities are limited to those outlined below. Ambac does not consolidate these entities because Ambac Assurance’s policies issued to these entities have been allocated to the Segregated Account, thereby limiting Ambac’s control over the entities’ most significant economic activities. Ambac has elected to account for its equity interest in these entities at fair value under the fair value option in accordance with the Financial Instruments Topic of the ASC. We believe that the fair value of the investments in these entities provides for greater transparency for recording profit or loss as compared to the equity method under the Investments – Equity Method and Joint Ventures Topic of the ASC. Refer to Note 10 for further information on the valuation technique and inputs used to measure the fair value of Ambac’s equity interest in these entities. At December 31, 2013 and December 31, 2012 the fair value of these entities is $13,384 and $14,557, respectively, and is reported within Other assets on the Consolidated Balance Sheets.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Since their inception, there have been 15 individual transactions with these entities, of which 3 transactions were outstanding as of December 31, 2013. Total principal amount of debt outstanding was $461,355 and $466,938 at December 31, 2013 and December 31, 2012, respectively. In each case, Ambac sold assets to these entities. The assets are composed of utility obligations with a weighted average rating of BBB at December 31, 2013 and weighted average life of 7.8 years. The purchase by these entities was financed through the issuance of medium-term notes (“MTNs”), which are cross-collateralized by the purchased assets. The MTNs have the same expected weighted average life as the purchased assets. Derivative contracts (interest rate swaps) are used within the entities for economic hedging purposes only. Derivative positions were established at the time MTNs were issued to purchase financial assets. The activities of these entities are contractually limited to purchasing assets from Ambac, issuing MTNs to fund such purchase, executing derivative hedges and obtaining financial guarantee policies with respect to indebtedness incurred. As of December 31, 2013 Ambac Assurance had financial guarantee insurance policies issued for all assets, MTNs and derivative contracts owned and outstanding by the entities.

Insurance premiums paid to Ambac Assurance by these entities are earned in a manner consistent with other insurance policies, over the risk period. Additionally, any losses incurred on such insurance policies are included in Ambac’s Consolidated Statements of Total Comprehensive Income. Under the terms of an Administrative Agency Agreement, Ambac provides certain administrative duties, primarily collecting amounts due on the obligations and making interest payments on the MTNs.

There were no assets sold to these entities during 2013 or 2012. Successor Ambac earned premiums for issuing the financial guarantee policies on the assets, MTNs and derivative contracts of $78 the eight months ended December 31, 2013. Predecessor Ambac earned premiums for issuing the financial guarantee policies on the assets, MTNs and derivative contracts of $40 and $398 for the four months ended April 30, 2013 and the year ended December 31, 2012, respectively.

Ambac was not presented with claims on insurance policies issued to these entities during 2013 or 2012. Successor Ambac received recoveries of $2,747 for the eight months ended December 31, 2013 in respect of previously paid claims. Predecessor Ambac received recoveries of $1,455 and $14,691 for the four months ended April 30, 2013 and the year ended December 31, 2012, respectively, in respect of previously paid claims.

Successor Ambac also earned fees for providing other services amounting to $7 for the eight months ended December 31, 2013. Predecessor Ambac earned fees for providing other services amounting to $3 and $37 for the four months ended April 30, 2013, and the year ended December 31, 2012, respectively.

Derivative contracts are provided by Ambac Financial Services (“AFS”), Ambac’s derivative products subsidiary, to these entities. Ambac accounts for these contracts on a trade date basis at fair value. Successor Ambac received $2,372 for the eight months ended December 31, 2013 under these derivative contracts. Predecessor Ambac paid $93 for four months ended April 30, 2013 and received $7,356 for the year ended December 31, 2012, respectively, under these derivative contracts.

Consolidation of VIEs:

Upon initial consolidation of a VIE, we recognize a gain or loss in earnings for the difference between: (i) the fair value of the consideration paid, the fair value of any non-controlling interests and the reported amount of any previously held interests and (ii) the net amount, as measured on a fair value basis, of the assets and liabilities consolidated. Upon deconsolidation of a VIE, we recognize a gain or loss for the difference between: (i) the fair value of any consideration received, the fair value of any retained non-controlling investment in the VIE and the carrying amount of any non-controlling interest in the VIE and (ii) the carrying amount of the VIE’s

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

assets and liabilities. Gains or losses from consolidation and deconsolidation that are reported in earnings are reported within (Loss) income on variable interest entities.

The variable interest in a VIE generally involves one or more of the following: a financial guarantee policy issued to the VIE, a written credit derivative contract that references liabilities of the VIE or an investment in securities issued by the VIE. The impact of consolidating such VIEs on Ambac’s balance sheet is the elimination of transactions between the consolidated VIEs and Ambac’s operating subsidiaries and the inclusion of the VIE’s third party assets and liabilities. For a financial guarantee policy issued to a consolidated VIE, Ambac does not reflect the financial guarantee insurance policy in accordance with the related insurance accounting rules under the Financial Services – Insurance Topic of the ASC. Consequently, upon consolidation, Ambac eliminates the insurance assets and liabilities associated with the policy from the Consolidated Balance Sheets. Such insurance assets and liabilities may include premium receivables, reinsurance recoverable, deferred ceded premium, subrogation recoverable, deferred acquisition costs, unearned premiums, loss and loss expense reserves, ceded premiums payable and insurance intangible assets. For investment securities owned by Ambac that are debt instruments issued by the VIE, the investment securities balance is eliminated upon consolidation. Ambac did not consolidate any VIEs solely as a result of purchases of the VIE’s debt instruments.

As of December 31, 2013 consolidated VIE assets and liabilities relating to 18 consolidated entities were $15,988,697 and $15,872,770, respectively. As of December 31, 2012, consolidated VIE assets and liabilities relating to 18 consolidated entities were $17,841,863 and $17,661,700, respectively. Ambac is not primarily liable for, and does not guarantee all of the debt obligations issued by the VIEs. Ambac would only be required to make payments on the guaranteed debt obligations in the event that the issuer of such debt obligations defaults on any principal or interest due. Additionally, Ambac’s creditors do not have rights with regard to the assets of the VIEs. Ambac evaluates the net income statement effects and earnings per share effects to determine attributions between Ambac and non-controlling interests as a result of consolidating a VIE. Ambac has determined that the net changes in fair value of most consolidated VIE assets and liabilities are attributable to Ambac due to Ambac’s interest through financial guarantee premium and loss payments with the VIE.

The financial reports of certain VIEs are prepared by outside trustees and are not available within the time constraints Ambac requires to ensure the financial accuracy of the operating results. As such, the financial results of certain VIEs are consolidated on a time lag that is no longer than 90 days.

The table below provides the fair value of fixed income securities, by asset-type, held by consolidated VIEs as of December 31, 2013 and December 31, 2012:

 

     Successor Ambac      Predecessor Ambac  
     December 31, 2013      December 31, 2012  

Investments:

     

Corporate obligations

   $ 2,475,182       $ 2,261,294   
  

 

 

    

 

 

 

Total variable interest entity assets: Fixed income securities

   $ 2,475,182       $ 2,261,294   
  

 

 

    

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The following table provides supplemental information about the loans held as assets and long-term debt associated with the VIEs for which the fair value option has been elected as of December 31, 2013 and December 31, 2012:

 

     Estimated fair value      Unpaid principal balance  

Successor Ambac–December 31, 2013:

     

Loans

   $ 13,398,895       $ 12,226,481   

Long-term debt

   $ 14,091,753       $ 14,251,771   

Predecessor Ambac–December 31, 2012 :

     

Loans

   $ 15,359,073       $ 13,995,141   

Long-term debt

   $ 15,200,538       $ 15,460,530   

Effective April 30, 2013, Ambac was required to consolidate an additional VIE which resulted in a gain of $385,291 reported in Predecessor Ambac earnings. The assets of this VIE consist primarily of identified intangible assets associated with its subsidiaries’ operations. The intangible assets recorded at fair value upon consolidation on April 30, 2013 were $164,520 and were considered held for use. The intangible assets were being amortized over their estimated useful lives resulting in a weighted-average amortization period at the consolidation date of 16 years. Amortization expense for intangible assets for the eight months ended December 31, 2013 was $5,015, and is included in (Loss) income on variable interest entities on the Consolidated Statements of Total Comprehensive Income. During 2013, management approved plans to sell the VIE intangible assets. Such assets were reclassified as held for sale and their carrying value was reduced to fair value less costs to sell of $76,140 as of December 31, 2013. The reduction to the intangible asset carrying value resulted in a loss of $83,365, which is included in (Loss) income on variable interest entities for the eight months ended December 31, 2013. The fair value of these intangible assets at December 31, 2013 is based on market information specific to these assets and is considered a Level 2 measurement under the Fair Value Measurement Topic of the ASC.

During the fourth quarter of 2013, Ambac deconsolidated a separate VIE, resulting in a loss of $15,273 reported in (Loss) income on variable interest entitles for the eight months ended December 31, 2013.

Variable Interests in Non-Consolidated VIEs

The following table displays the carrying amount of the assets, liabilities and maximum exposure to loss of Ambac’s variable interests in non-consolidated VIEs resulting from financial guarantee and credit derivative contracts by major underlying asset classes, as of December 31, 2013 and December 31, 2012:

 

     Carrying Value of Assets and Liabilities  
     Maximum
Exposure To Loss (1)
     Insurance
Assets (2)
     Insurance
Liabilities (3)
     Derivative
Liabilities (4)
 

Successor Ambac–December 31, 2013 :

           

Global Structured Finance:

           

Collateralized debt obligations

   $ 2,092,072       $ 3,867       $ 7,119       $ 10,092   

Mortgage-backed—residential

     19,231,335         581,498         3,890,937         —    

Other consumer asset-backed

     5,425,583         68,511         992,177         —     

Other commercial asset-backed

     7,237,953         429,559         559,600         39,916   

Other

     4,347,287         113,468         608,213         4,312   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Global Structured Finance

     38,334,230         1,196,903         6,058,046         54,320   

Global Public Finance

     35,732,858         531,519         604,339         27,112   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 74,067,088       $ 1,728,422       $ 6,662,385       $ 81,432   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

     Carrying Value of Assets and Liabilities  
     Maximum
Exposure To  Loss (1)
     Insurance
Assets (2)
     Insurance
Liabilities (3)
     Derivative
Liabilities (4)
 

Predecessor Ambac–December 31, 2012 :

           

Global Structured Finance:

           

Collateralized debt obligations

   $ 10,176,522       $ 9,673       $ 13,328       $ 113,057   

Mortgage-backed—residential

     24,008,616         603,867         3,969,336         —    

Mortgage-backed—commercial

     643,387         —          —          2,418   

Other consumer asset-backed

     5,895,377         101,494         1,042,522         45,610   

Other commercial asset-backed

     10,192,858         451,048         1,215,074         7,293   

Other

     5,505,007         132,004         590,017         4,393   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total Global Structured Finance

     56,421,767         1,298,086         6,830,277         172,771   

Global Public Finance

     37,096,228         542,179         633,358         28,663   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 93,517,995       $ 1,840,265       $ 7,463,635       $ 201,434   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Maximum exposure to loss represents the gross maximum future payments of principal and interest on insured obligations and credit derivative contracts. Ambac’s maximum exposure to loss does not include the benefit of any financial instruments (such as reinsurance or hedge contracts) that Ambac may utilize to mitigate the risks associated with these variable interests.
(2) Insurance assets represent the amount recorded in “Premium receivables” and “Subrogation recoverable” for financial guarantee contracts on Ambac’s Consolidated Balance Sheets.
(3) Insurance liabilities represent the amount recorded in “Losses and loss expense reserve” and “Unearned premiums” for financial guarantee contracts on Ambac’s Consolidated Balance Sheets.
(4) Derivative liabilities represent the fair value recognized on credit derivative contracts on Ambac’s Consolidated Balance Sheets.

5.         COMPREHENSIVE INCOME

The following tables detail the changes in the balances of each component of accumulated other comprehensive income for the affected periods:

 

     Unrealized Gains
(Losses)
on Available-for-
Sale Securities (1)
    Changes to
Postretirement
Benefit (1)
     Gain (Loss) on
Foreign Currency

Translation (1)
     Total  

Successor Ambac

   Eight months ended
December 31, 2013
    Eight months ended
December 31, 2013
     Eight months ended
December 31, 2013
     Eight months ended
December 31, 2013
 

Beginning Balance

   $ —        $ —        $ —        $ —     
  

 

 

   

 

 

    

 

 

    

 

 

 

Other comprehensive income before reclassifications

     (85,641     10,847        42,724         (32,070

Amounts reclassified from accumulated other comprehensive income

     43,731        —          —          43,731   
  

 

 

   

 

 

    

 

 

    

 

 

 

Net current period other comprehensive income

     (41,910     10,847         42,724         11,661   
  

 

 

   

 

 

    

 

 

    

 

 

 

Balance at December 31, 2013

   $ (41,910   $ 10,847       $ 42,724       $ 11,661   
  

 

 

   

 

 

    

 

 

    

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

     Unrealized Gains (Losses)
on Available-
for-Sale Securities (1)
    Changes to
Postretirement
Benefit (1)
    Gain (Loss) on
Foreign Currency
Translation (1)
    Total  

Predecessor Ambac

   Four months ended
April 30, 2013
    Four months ended
April 30, 2013
    Four months ended
April 30, 2013
    Four months ended
April 30, 2013
 

Beginning Balance

   $ 651,272      $ (5,860   $ (20,027   $ 625,385   
  

 

 

   

 

 

   

 

 

   

 

 

 

Other comprehensive income before reclassifications

     188,212        —         (657     187,555   

Amounts reclassified from accumulated other comprehensive income

     (12,865     185        —         (12,680

Elimination of Predecessor Ambac Shareholder Equity Accounts (2)

     (826,619     5,675        20,684        (800,260
  

 

 

   

 

 

   

 

 

   

 

 

 

Net current period other comprehensive income

     (651,272     5,860        20,027        (625,385
  

 

 

   

 

 

   

 

 

   

 

 

 

Balance at April 30, 2013

   $ —       $ —       $ —       $ —    
  

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) All amounts are net of tax and noncontrolling interest. Amounts in parentheses indicate debits.
(2) See Note 3, Fresh Start Financial Statement Reporting, for additional information.

The following table details the significant amounts reclassed from each component of accumulated other comprehensive income for the affected periods:

 

     Amount Reclassified from Accumulated
Other Comprehensive Income (1)
     

Details about Accumulated Other

Comprehensive Income Components

   Successor Ambac –
Eight months ended
December 31, 2013
     Predecessor Ambac –
Four months ended
April 30, 2013
   

Affected Line Item in the

Consolidated Statement of

Total Comprehensive Income

Unrealized Gains (Losses) on Available-for-Sale Securities

       
   $ 43,731       $ (12,865   Net realized investment gains
     —           —        Tax (expense) benefit
  

 

 

    

 

 

   
   $ 43,731       $ (12,865   Net of tax and noncontrolling interest (3)
  

 

 

    

 

 

   

Amortization of Postretirement Benefit

       

Prior service cost

   $ —         $ 1,616      Underwriting and operating expenses (2)

Actuarial gains (losses)

     —           (727   Underwriting and operating expenses (2)
  

 

 

    

 

 

   
     —           889      Total before tax
     —           704      Tax (expense) benefit
  

 

 

    

 

 

   
   $ —         $ 185      Net of tax and noncontrolling interest (3)
  

 

 

    

 

 

   

Total reclassifications for the period

   $ 43,731       $ (12,680   Net of tax and noncontrolling interest (3)
  

 

 

    

 

 

   

 

(1) Amounts in parentheses indicate debits to the Consolidated Statement of Comprehensive Income.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

(2) These accumulated other comprehensive income components are included in the computation of net periodic benefit cost.
(3) Amount agrees with amount reported as reclassifications from AOCI in the disclosure about changes in AOCI balances.

6.         NET INCOME PER SHARE

Predecessor Ambac common stock (and related stock options and restricted stock units) was cancelled upon emergence from bankruptcy on the Effective Date. As a result, the earnings per share information for Predecessor Ambac is not meaningful to investors in Successor Ambac’s common stock and warrants. Pursuant to the Reorganization Plan, 45,000,000 shares of new common stock at par value of $0.01 per share and 5,047,138 warrants were issued. Warrants entitle such holders to acquire up to 5,047,138 shares of new common stock at an exercise price of $16.67 per share at any time on or prior to April 30, 2023. For the eight months ended December 31, 2013, 6,312 warrants were exercised, resulting in an issuance of 2,524 shares of common stock. As of December 31, 2013, Successor Ambac had 5,040,826 warrants outstanding. Successor Ambac’s common stock and warrants began trading on NASDAQ under the symbols “AMBC” and “AMBCW,” respectively, on May 1, 2013.

The following table provides a reconciliation of the common shares used for basic earnings per share and diluted earnings per share:

 

     Successor Ambac      Predecessor Ambac  
     Eight months ended
December 31, 2013
     Four months ended
April 30, 2013
     Year Ended
December 31, 2012
 

Weighted average number of common shares used for basic earnings per share

     45,003,925         302,469,544         302,468,867   

Effect of potential dilutive shares:

          

Warrants

     1,297,620         —          —    

Restricted stock units

     1,189         109,701         —    

Stock options

     —           —          —    
  

 

 

    

 

 

    

 

 

 

Weighted average number of common shares and potential dilutive shares used for diluted earnings per share

   $ 46,302,734       $ 302,579,245       $ 302,468,867   
  

 

 

    

 

 

    

 

 

 

Anti-dilutive shares excluded from the above reconciliation:

          

Warrants

     —          —          —    

Stock options

     855        475,550         805,999   

Restricted stock units

     —          —          71,295   

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

7.         FINANCIAL GUARANTEES IN FORCE

Financial guarantees outstanding includes the exposures of policies that insure variable interest entities (“VIEs”) consolidated in accordance with ASC Topic 810, Consolidation. Financial guarantees outstanding excludes the exposures of policies that insure bonds which have been called, pre-refunded or refunded. The gross par amount of financial guarantees outstanding was $197,691,000 and $245,030,000 at December 31, 2013 and 2012, respectively. The par amount of financial guarantees outstanding, net of reinsurance, was $179,092,000 and $223,633,000 at December 31, 2013 and 2012, respectively. As of December 31, 2013 and 2012, the guarantee portfolio was diversified by type of guaranteed bond as shown in the following table:

 

     Net Par Amount Outstanding  
     Successor Ambac      Predecessor Ambac  
     2013      2012  

Public Finance:

     

Lease and tax-backed revenue

   $ 41,858,000       $ 50,415,000   

General obligation

     29,115,000         34,623,000   

Utility revenue

     14,933,000         18,651,000   

Transportation revenue

     9,653,000         13,892,000   

Higher education

     7,810,000         10,382,000   

Housing revenue

     7,439,000         8,176,000   

Health care revenue

     3,903,000         5,266,000   

Other

     1,351,000         1,613,000   
  

 

 

    

 

 

 

Total Public Finance

     116,062,000         143,018,000   
  

 

 

    

 

 

 

Structured Finance:

     

Mortgage-backed and home equity

     16,026,000         19,117,000   

Investor-owned utilities

     5,881,000         7,071,000   

Student loan

     4,357,000         5,411,000   

Asset-backed (1)

     2,361,000         2,905,000   

CDOs

     897,000         5,941,000   

Other

     1,890,000         1,914,000   
  

 

 

    

 

 

 

Total Structured Finance

     31,412,000         42,359,000   
  

 

 

    

 

 

 

International Finance:

     

Investor-owned and public utilities

     9,595,000         10,314,000   

Sovereign/sub-sovereign

     7,394,000         7,289,000   

Asset-backed (1)

     6,884,000         8,702,000   

Transportation

     5,021,000         6,002,000   

CDOs

     822,000         3,191,000   

Mortgage-backed and home equity

     484,000         1,268,000   

Other

     1,418,000         1,490,000   
  

 

 

    

 

 

 

Total International Finance

     31,618,000         38,256,000   
  

 

 

    

 

 

 

Total

   $ 179,092,000       $ 223,633,000   
  

 

 

    

 

 

 

 

(1) At December 31, 2013 and 2012, all asset-backed net par amounts outstanding relate to commercial asset-based transactions.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

As of December 31, 2013 and 2012, the International Finance guaranteed portfolio is shown in the following table by location of risk:

 

     Net Par Amount Outstanding  
     Successor Ambac      Predecessor Ambac  
     2013      2012  

United Kingdom

   $ 21,282,000       $ 22,585,000   

Australia

     3,331,000         4,820,000   

Italy

     2,412,000         3,068,000   

Austria

     967,000         943,000   

New Zealand

     526,000         529,000   

Internationally diversified (1)

     1,918,000         3,968,000   

Other international

     1,182,000         2,343,000   
  

 

 

    

 

 

 

Total International Finance

   $ 31,618,000       $ 38,256,000   
  

 

 

    

 

 

 

 

(1) Internationally diversified obligations represent pools of geographically diversified exposures which may include components of U.S. exposure.

Gross financial guarantees in force (principal and interest) was $312,710,000 and $385,803,000 at December 31, 2013 and 2012, respectively. Net financial guarantees in force (after giving effect to reinsurance) was $282,210,000 and $350,163,000 as of December 31, 2013 and 2012, respectively.

In the United States, California, and New York were the states with the highest aggregate net par amounts in force, accounting for 14.3% and 6.5% of the total at December 31, 2013, respectively. No other state accounted for more than 5%. The highest single insured risk represented 1.5% of the aggregate net par amount guaranteed.

8.         FINANCIAL GUARANTEE INSURANCE CONTRACTS

The portfolio of financial guarantees discussed in Note 7, Financial Guarantees in Force, includes financial guarantee contracts that meet the definition of insurance contracts as well as those that meet the definition of derivative contracts. Amounts presented in this Note relate only to Ambac’s non-derivative insurance business for insurance policies issued to beneficiaries, including VIEs, for which we do not consolidate the VIE.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Net Premiums Earned:

Below is the gross premium receivable roll-forward (direct and assumed contracts) for the affected periods:

 

     Successor Ambac      Predecessor Ambac  
     Period from May 1
through December 31, 2013
     Period from January 1
through April 30, 2013
    Period from January 1
through December 31, 2012
 

Beginning premium receivable

   $ 1,531,631       $ 1,620,621      $ 2,028,479   

Premium receipts

     (82,071      (48,296     (155,626

Adjustments for changes in expected and contractual cash flows

     (91,241      (28,237     (299,906

Accretion of premium receivable discount

     26,184         14,740        50,407   

Deconsolidation of certain VIEs

     45,883         —          —     

Uncollectible premiums

     (15,262      (634     (28,031

Other adjustments (including foreign exchange)

     37,897         (26,563     25,298   
  

 

 

    

 

 

   

 

 

 

Ending premium receivable

   $ 1,453,021       $ 1,531,631      $ 1,620,621   
  

 

 

    

 

 

   

 

 

 

The effect of reinsurance on premiums written and earned was as follows:

 

     Successor Ambac      Predecessor Ambac  
     Eight Months Ended
December 31, 2013
     Four Months Ended
April 30, 2013
     Year Ended
December 31, 2012
 
     Written     Earned      Written     Earned      Written     Earned  

Direct

   ($ 80,309   $ 226,326       ($ 14,125   $ 138,468       ($ 277,508   $ 434,488   

Assumed

     —          65         —          32         —         155   

Ceded

     (7,810     12,873         (1,098     8,500         (23,371     20,039   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

Net premiums

   ($ 72,499   $ 213,518       ($ 13,027   $ 130,000       ($ 254,137   $ 414,604   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The table below summarizes the future gross undiscounted premiums to be collected, and future premiums earned, net of reinsurance by Successor Ambac at December 31, 2013:

 

     Future
premiums
to be
collected (1)
     Future
premiums to
be earned,
net of
reinsurance (1)
 

Three months ended:

     

March 31, 2014

   $ 32,497       $ 48,819   

June 30, 2014

     29,709         47,354   

September 30, 2014

     34,248         46,028   

December 31, 2014

     32,031         44,685   

Twelve months ended:

     

December 31, 2015

     127,948         166,741   

December 31, 2016

     121,354         153,672   

December 31, 2017

     115,043         142,822   

December 31, 2018

     109,917         133,616   

Five years ended:

     

December 31, 2023

     491,505         555,669   

December 31, 2028

     387,017         387,961   

December 31, 2033

     258,517         230,672   

December 31, 2038

     108,379         101,894   

December 31, 2043

     40,269         34,711   

December 31, 2048

     12,028         12,090   

December 31, 2053

     2,262         3,334   

December 31, 2058

     31         83   
  

 

 

    

 

 

 

Total

   $ 1,902,755       $ 2,110,151   
  

 

 

    

 

 

 

 

(1) Future premiums to be collected relates to the discounted premium receivable asset recorded on Ambac’s balance sheet. Future premiums to be earned, net of reinsurance relate to the unearned premiums liability and deferred ceded premium asset recorded on Ambac’s balance sheet. The use of contractual lives for many bond types which do not have homogeneous pools of underlying collateral is required in the calculation of the premium receivable as described above, which results in a higher premium receivable balance than if expected lives were considered. If installment paying policies are retired early, premiums reflected in the premium receivable asset and amounts reported in the above table for such policies may not be collected in the future.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Loss and Loss Expense Reserves:

A loss reserve is recorded on the balance sheet on a policy-by-policy basis for the excess of: (a) unpaid claims plus the present value of expected net cash flows required to be paid under an insurance contract, over (b) the UPR for that contract. Below is the loss reserve roll-forward, net of subrogation recoverable and reinsurance, for the affected periods:

 

    Successor Ambac           Predecessor Ambac  
    Period from May 1
through December 31, 2013
          Period from January 1
through April 30,
2013
    Period from
January 1 through
December 31, 2012
 

Beginning loss and loss expense reserves, net of subrogation recoverable, gross of reinsurance

  $ 5,572,672          $ 6,122,140      $ 6,384,260   

Less reinsurance on loss and loss expense reserves

    138,155            147,409        153,480   
 

 

 

       

 

 

   

 

 

 

Beginning balance of loss and loss expense reserves, net of subrogation recoverable and reinsurance

  $ 5,434,517          $ 5,974,731      $ 6,230,780   
 

 

 

       

 

 

   

 

 

 

Changes in the loss and loss expense reserves due to:

         

Current year:

         

Establishment of new loss and loss expense reserves, gross of RMBS subrogation and net of reinsurance

    97,342            2,748        464,058   

Claim and loss expense payments, net of subrogation and reinsurance

    (442         (58     (20,765

Establishment of RMBS subrogation recoveries, net of reinsurance

    (315         (159     —    
 

 

 

       

 

 

   

 

 

 

Total current year

    96,585            2,531        443,293   
 

 

 

       

 

 

   

 

 

 

Prior years:

         

Change in previously established loss and loss expense reserves, gross of RMBS subrogation and net of reinsurance

    (514,728         (52,642     72,700   

Claim and loss expense recoveries (payments), net of subrogation and reinsurance

    59,184            20,902        (944,860

Change in previously established RMBS subrogation recoveries, net of reinsurance

    272,319            (12,596     172,818   
 

 

 

       

 

 

   

 

 

 

Total prior years

    (183,225         (44,336     (699,342
 

 

 

       

 

 

   

 

 

 

Net change in loss and loss expense reserves

    (86,640         (41,805     (256,049

Net consolidation of certain VIE’s

    —             (498,409     —    

Ending loss and loss expense reserves, net of subrogation recoverable and reinsurance

  $ 5,347,877          $ 5,434,517      $ 5,974,731   

Add reinsurance on loss and loss expense reserves

    122,357            138,155        147,409   
 

 

 

       

 

 

   

 

 

 

Ending loss and loss expense reserves, net of subrogation recoverable, gross of reinsurance

  $ 5,470,234          $ 5,572,672      $ 6,122,140   
 

 

 

       

 

 

   

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

For the eight months ended December 31, 2013, the positive development in loss reserves established in prior years was primarily due to improved performance of the student loan and RMBS portfolios.

For the year ended December 31, 2012, the adverse development in loss reserves established in prior years was primarily due to projected deterioration of collateral supporting structured finance policies, including RMBS and student loan exposures, which resulted in greater expected ultimate losses and lower expected subrogation recoveries related to representation and warranty breaches on insured RMBS securitizations.

The net change in net loss and loss expense reserves are included in losses and loss expenses in the Consolidated Statement of Total Comprehensive Income. Loss expense reserves are established for surveillance, legal and other mitigation expenses associated with adversely classified credits. Total net loss expense reserves, included in the above table, were $110,551 and $136,790 at December 31, 2013 and December 31, 2012, respectively. For Successor Ambac, reinsurance recoveries of losses included in losses and loss expenses in the Consolidated Statements of Total Comprehensive Income were ($14,106) for the eight months ended December 31, 2013. For Predecessor Ambac, reinsurance recoveries of losses included in losses and loss expenses in the Consolidated Statements of Total Comprehensive Income were $3,889 for the four months ended April 30, 2013, and $6,996 for the year ended December 31, 2012, respectively.

The tables below summarize information related to policies currently included in Ambac’s loss reserves or subrogation recoverable at December 31, 2013 and December 31, 2012. The weighted average risk-free rate used to discount loss reserves at December 31, 2013 and December 31, 2012 was 3.2% and 1.6%, respectively.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Successor Ambac – Surveillance Categories (at December 31, 2013)

 

    I/SL     IA     II     III     IV     V     Total  

Number of policies

    18        23        52        76        169        1        339   

Remaining weighted-average contract period (in years)

    13        19        17        19        11        6        14   

Gross insured contractual payments outstanding:

             

Principal

  $ 834,708      $ 1,125,284      $ 3,464,420      $ 5,597,387      $ 11,184,943      $ 47      $ 22,206,789   

Interest

    506,903        871,751        2,130,271        2,331,222        2,556,968        18        8,397,133   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 1,341,611      $ 1,997,035      $ 5,594,691      $ 7,928,609      $ 13,741,911      $ 65      $ 30,603,922   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross undiscounted claim liability

  $ 7,447      $ 54,398      $ 221,321      $ 3,029,891      $ 7,963,137      $ 65      $ 11,276,259   

Discount, gross claim liability

    (1,225     (6,726     (32,630     (1,299,032     (1,112,829     (6     (2,452,448
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross claim liability before all subrogation and before reinsurance

  $ 6,222      $ 47,672      $ 188,691      $ 1,730,859      $ 6,850,308      $ 59      $ 8,823,811   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Less:

             

Gross RMBS subrogation (1)

    —          —          —          (4,516     (2,211,333     —          (2,215,849

Discount, RMBS subrogation

    —          —          —          15        9,236        —          9,251   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Discounted RMBS subrogation, before reinsurance

    —          —          —          (4,501     (2,202,097     —          (2,206,598
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Less:

             

Gross other subrogation (2)

    —          —          (20,367     (116,145     (710,187     —          (846,699

Discount, other subrogation

    —          —          9,522        36,125        45,666        —          91,313   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Discounted other subrogation, before reinsurance

    —          —          (10,845     (80,020     (664,521     —          (755,386
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross claim liability, net of all subrogation and discounts, before reinsurance

  $ 6,222      $ 47,672      $ 177,846      $ 1,646,338      $ 3,983,690      $ 59      $ 5,861,827   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Less: Unearned premium reserves

    (4,060     (22,901     (95,550     (280,245     (100,228     —          (502,984

Plus: Loss adjustment expenses reserves

    —          11        2,257        1,658        107,465        —          111,391   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Claim liability reported on Balance Sheet, before reinsurance (3)(4)

  $ 2,162      $ 24,782      $ 84,553      $ 1,367,751      $ 3,990,927      $ 59      $ 5,470,234   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Reinsurance recoverable reported on Balance Sheet

  $ 146      $ 2,271      $ 2,351      $ 120,871      $ 10,072      $ —        $ 135,711   

 

(1) RMBS subrogation represents Ambac’s estimate of subrogation recoveries from RMBS transaction sponsors for representation and warranty breaches.
(2) Other subrogation represents subrogation, including subrogation from RMBS transactions, other than subrogation as defined in (1) above.
(3) Claim liability reported on the Balance Sheet, before reinsurance is included in the Consolidated Balance Sheets as follows:

 

Losses and loss expense reserve (net of potential subrogation recoveries of $1,797,805)

   $  5,968,712   

Subrogation recoverable (includes gross potential recovery of $1,164,179)

     (498,478
  

 

 

 
   $ 5,470,234   
  

 

 

 

 

(4) Claim liability reported on the Balance Sheet, before reinsurance includes unpaid claims of $3,904,315.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Predecessor Ambac – Surveillance Categories (at December 31, 2012)

 

    I/SL     IA     II     III     IV     V     Total  

Number of policies

    14        12        28        114        147        1        316   

Remaining weighted-average contract period (in years)

    15        21        18        20        8        6        13   

Gross insured contractual payments outstanding:

             

Principal

  $ 311,157      $ 786,998      $ 1,245,793      $ 9,161,747      $ 12,554,628      $ 47      $ 24,060,370   

Interest

    166,276        715,129        379,237        4,905,775        3,076,746        20        9,243,183   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 477,433      $ 1,502,127      $ 1,625,030      $ 14,067,522      $ 15,631,374      $ 67      $ 33,303,553   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross undiscounted claim liability

  $ 2,135      $ 40,898      $ 49,521      $ 4,051,076      $ 7,976,765      $ 67      $ 12,120,462   

Discount, gross claim liability

    (219     (3,532     (3,247     (1,342,910     (788,720     (3     (2,138,631
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross claim liability before all subrogation and before reinsurance

  $ 1,916      $ 37,366      $ 46,274      $ 2,708,166      $ 7,188,045      $ 64      $ 9,981,831   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Less:

             

Gross RMBS subrogation (1)

    —          —          —          (16,170     (2,544,993     —          (2,561,163

Discount, RMBS subrogation

    —          —          —          312        37,626        —          37,938   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Discounted RMBS subrogation, before reinsurance

    —          —          —          (15,858     (2,507,367     —          (2,523,225
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Less:

             

Gross other subrogation (2)

    —          —          —          (141,012     (766,717     —          (907,729

Discount, other subrogation

    —          —          —          21,238        15,711        —          36,949   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Discounted other subrogation, before reinsurance

    —          —          —          (119,774     (751,006     —          (870,780
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross claim liability, net of all subrogation and discounts, before reinsurance

  $ 1,916      $ 37,366      $ 46,274      $ 2,572,534      $ 3,929,672      $ 64      $ 6,587,826   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Less: Unearned premium reserves

    (1,179     (21,626     (17,120     (450,247     (113,622     —          (603,794

Plus: Loss adjustment expenses reserves

  $ —        $ —        $ —        $ —        $ 138,108      $
 

  
 
  
  $ 138,108   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Claim liability reported on Balance Sheet, before reinsurance (3)(4)

  $ 737      $ 15,740      $ 29,154      $ 2,122,287      $ 3,954,158      $ 64      $ 6,122,140   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Reinsurance recoverable reported on Balance Sheet

  $ —        $ 1,078      $ 7,085      $ 128,333      $ 22,590      $ —        $ 159,086   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) RMBS subrogation represents Ambac’s estimate of subrogation recoveries from RMBS transaction sponsors for representation and warranty breaches.
(2) Other subrogation represents subrogation, including subrogation from RMBS transactions, other than subrogation as defined in (1) above.
(3) Claim liability reported on the Balance Sheet, before reinsurance is included in the Consolidated Balance Sheets as follows:

 

Losses and loss expense reserve (net of potential subrogation recoveries of $2,611,430)

   $  6,619,486   

Subrogation recoverable (includes gross potential recovery of $782,575)

     (497,346
  

 

 

 
   $ 6,122,140   
  

 

 

 

 

(4) Claim liability reported on the Balance Sheet, before reinsurance includes unpaid claims of $3,388,133.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Losses and loss expense reserves ceded to reinsurers at December 31, 2013 and December 31, 2012 were $122,357 and $147,409, respectively. Amounts were included in reinsurance recoverable on paid and unpaid losses on the Consolidated Balance Sheets.

Ambac records estimated subrogation recoveries for breaches of representations and warranties by sponsors of certain RMBS transactions utilizing Adverse and Random Sample approaches. Ambac has recorded RMBS subrogation recoveries of $2,206,598 ($2,183,652 net of reinsurance) and $2,523,225 ($2,497,233 net of reinsurance) at December 31, 2013 and December 31, 2012, respectively. The balance of RMBS subrogation recoveries and the related claim liabilities, by estimation approach, at December 31, 2013 and December 31, 2012, are as follows:

 

     Successor Ambac – December 31, 2013  

Approach

   Count      Gross loss reserve
before subrogation
recoveries (1)
     Subrogation
recoveries (2)  (3)
    Gross loss reserve
after subrogation
recoveries
 

Adverse samples

     27       $ 2,084,911       $ (1,252,773   $ 832,138   

Random samples

     21         1,078,861         (953,825     125,036   
  

 

 

    

 

 

    

 

 

   

 

 

 

Totals

     48       $ 3,163,772       $ (2,206,598   $ 957,174   
  

 

 

    

 

 

    

 

 

   

 

 

 
     Predecessor Ambac – December 31, 2012  

Approach

   Count      Gross loss reserve
before subrogation
recoveries (1)
     Subrogation
recoveries (2)  (3)
    Gross loss reserve
after subrogation
recoveries
 

Adverse samples

     27       $ 2,331,878       $ (1,442,817   $ 889,061   

Random samples

     22         1,231,466         (1,080,408     151,058   
  

 

 

    

 

 

    

 

 

   

 

 

 

Totals

     49       $ 3,563,344       $ (2,523,225   $ 1,040,119   
  

 

 

    

 

 

    

 

 

   

 

 

 

 

(1) Includes unpaid claims on policies allocated to the Segregated Account of $3,904,315 and $3,388,133 at December 31, 2013 and 2012, respectively.
(2) The amount of recorded subrogation recoveries related to each securitization is limited to ever-to-date paid losses plus projected paid losses for each policy. To the extent significant losses have been paid but not yet recovered, the recorded amount of RMBS subrogation recoveries may exceed the unpaid claims in addition to the expected future claims for a given policy. The net cash inflow for these policies is recorded as a “Subrogation recoverable” asset. For those transactions where the subrogation recovery is less than the sum of unpaid claims and the expected future claims, the net cash outflow for these policies is recorded as a “Losses and loss expense reserve” liability.
(3) The sponsor’s repurchase obligation may differ depending on the terms of the particular transaction and the status of the specific loan, such as whether it is performing or has been liquidated or charged off. The estimated subrogation recovery for these transactions is based primarily on loan level data provided through trustee reports received in the normal course of our surveillance activities or provided by the sponsor. While this data may not include all the components of the sponsor’s contractual repurchase obligation we believe it is the best information available to estimate the subrogation recovery.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Below is the rollforward of RMBS subrogation, by estimation approach, for the affected periods:

 

    Random
sample
    Number of
transactions
    Adverse
sample
    Number of
transactions
    Total  

Successor Ambac :

         

Discounted RMBS subrogation (gross of reinsurance) at May 1, 2013

  $ 1,004,252        20      $ 1,478,666        29        2,482,918   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Changes recognized through December 31, 2013:

         

Additional transactions reviewed

    2,451        1        —          n/a        2,451   

Additional adverse sample loans reviewed

    —          n/a        —          n/a        —     

Adverse loans repurchased by the sponsor

    —          n/a        —          —          —     

Impact of sponsor actions (1)

    —          n/a        98       n/a        98   

All other changes (2)

    (52,878     n/a        (225,991     (2     (278,869
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Discounted RMBS subrogation (gross of reinsurance) at December 31, 2013

  $ 953,825        21      $ 1,252,773        27      $ 2,206,598   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Predecessor Ambac

         

Discounted RMBS subrogation (gross of reinsurance) at January 1, 2013

  $ 1,080,408        22      $ 1,442,817        27      $ 2,523,225   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Changes recognized through April 30, 2013:

         

Additional transactions reviewed

    —          n/a        —          n/a        —     

Additional adverse sample loans reviewed

    —          n/a        —          n/a        —     

Adverse loans repurchased by the sponsor

    —          n/a        —          —          —     

Impact of sponsor actions (1)

    (54,195     (2     —          n/a        (54,195

All other changes (2)

    (21,961     n/a        35,849        2        13,888   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Discounted RMBS subrogation (gross of reinsurance) at April 30, 2013

  $ 1,004,252        20      $ 1,478,666        29      $ 2,482,918   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

    Random
sample
    Number of
transactions
    Adverse
sample
    Number of
transactions
    Total  

Predecessor Ambac :

         

Rollforward:

         

Discounted RMBS subrogation (gross of reinsurance) at January 1, 2012

  $ 1,262,794        16      $ 1,457,472        30      $ 2,720,266   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Changes recognized in 2012:

         

Additional transactions reviewed

    54,467        6        (35,486     (1     18,981   

Additional adverse sample loans reviewed

    —          n/a        —          —          —     

Adverse loans repurchased by the sponsor

    —          n/a        35        —          35   

Impact of sponsor actions (1)

    —          n/a        —          —          —     

All other changes (2)

    (236,853     n/a        20,796        (2     (216,057
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Discounted RMBS subrogation (gross of reinsurance) at December 31, 2012

  $ 1,080,408        22      $ 1,442,817        27      $ 2,523,225   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Sponsor actions include loan repurchases, direct payments to Ambac, and other contributions from sponsors.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

(2) Other changes which may impact RMBS subrogation recoveries include changes in actual or projected collateral performance, changes in the creditworthiness of a sponsor, and/or the projected timing of recoveries. For the eight months ended December 31, 2013, Successor Ambac removed 2 transactions from the Adverse Sample subrogation population; however, the impacts on RMBS subrogation disclosed in the Adverse Sample column relate to that, as well as other transactions. For the four months ended April 30, 2013, Predecessor Ambac added 2 transactions to the Adverse Sample population; however, the impacts on RMBS subrogation disclosed relate to those, as well as other transactions. For the year ended December 31, 2012, two transactions were removed from the Adverse Sample subrogation population; however, the impacts on RMBS subrogation disclosed in the Adverse Sample column relate to multiple transactions.

Assumed Reinsurance:

Assumed par outstanding was $248,225 at December 31, 2013. On March 24, 2010, all assumed reinsurance agreements with third parties were allocated to the Segregated Account, which will not allow for cancellations without the approval of the Rehabilitator.

Ceded Reinsurance:

Ambac Assurance has reinsurance in place pursuant to surplus share treaty and facultative reinsurance agreements. The reinsurance of risk does not relieve Ambac Assurance of its original liability to its policyholders. In the event that any of Ambac Assurance’s reinsurers are unable to meet their obligations under reinsurance contracts, Ambac Assurance would, nonetheless, be liable to its policyholders for the full amount of its policy.

Ambac Assurance’s reinsurance assets, including deferred ceded premiums and reinsurance recoverables on losses amounted to $266,278 at December 31, 2013. Credit exposure existed at December 31, 2013 with respect to reinsurance recoverables to the extent that any reinsurer may not be able to reimburse Ambac Assurance under the terms of these reinsurance arrangements. At December 31, 2013, there were ceded reinsurance balances payable of $85,424 offsetting this credit exposure.

To minimize its credit exposure to losses from reinsurer insolvencies, Ambac Assurance (i) is entitled to receive collateral from its reinsurance counterparties in certain reinsurance contracts; and (ii) has certain cancellation rights that can be exercised by Ambac Assurance in the event of rating agency downgrades of a reinsurer (among other events and circumstances). Ambac Assurance held letters of credit and collateral amounting to approximately $153,129 from its reinsurers at December 31, 2013. As of December 31, 2013, the aggregate amount of insured par ceded by Ambac Assurance to reinsurers under reinsurance agreements was $18,598,367 with the largest reinsurer accounting for $16,617,069 or 8.4% of gross par outstanding at December 31, 2013. The following table represents the percentage ceded to reinsurers and reinsurance recoverable at December 31, 2013 and its rating levels as of February 24, 2014:

 

Reinsurers

   Moody’s
Rating
     Moody’s
Outlook
     Percentage
ceded Par
    Net unsecured
reinsurance
recoverable (1)
 

Assured Guaranty Re Ltd (2)

     Baa1         Stable         89.35   $ 58,066   

Sompo Japan Insurance Inc

     A1         Stable         6.24        —    

Assured Guaranty Corporation (2)

     A3         Stable         4.41        5,187   
        

 

 

   

 

 

 

Total

           100.0   $ 63,253   
        

 

 

   

 

 

 

 

(1) Represents reinsurance recoverables on paid and unpaid losses and deferred ceded premiums, net of ceded premium payables due to reinsurers, letters of credit, and collateral posted for the benefit of the Company.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

(2) In January 2013, Moody’s downgraded Assured Guaranty Corporation to A3 from Aa3 and Assured Guaranty Re Ltd to Baa1 from A1. The downgrade provides Ambac Assurance with termination rights on certain reinsurance contracts and required an increase to the collateral provided by Assured Guaranty Re Ltd.

Insurance intangible asset:

The insurance intangible amortization expense for the eight months ended December 31, 2013 was $99,658, and is included in insurance intangible amortization on the Consolidated Statements of Total Comprehensive Income. As of December 31, 2013, the insurance intangible asset of $1,597,965 is net of accumulated amortization of $100,767.

The estimated future amortization expense for the insurance intangible asset is as follows:

 

2014

   $ 132,532   

2015

     117,116   

2016

     107,308   

2017

     99,460   

2018

     93,185   

Thereafter

     1,048,364   

9.        INSURANCE REGULATORY RESTRICTIONS

United States:

Ambac Assurance (exclusive of the Segregated Account which is under the control of OCI via the Segregated Account Rehabilitation Plan and Segregated Account Rehabilitation Proceedings) and Everspan are subject to the insurance laws and regulations of each jurisdiction in which it is licensed, some of which are described below. Failure to comply with applicable insurance laws and regulations (including, without limitation, minimum surplus requirements, aggregate risk limits and single risk limits) could expose Ambac Assurance or Everspan to fines, the loss or suspension of insurance licenses in certain jurisdictions, the imposition of orders by regulators with respect to the conduct of business by Ambac Assurance or Everspan and/or the inability to pay dividends, all of which could have an adverse impact on our business results and prospects.

New York’s comprehensive financial guarantee insurance law defines the scope of permitted financial guarantee insurance and governs the conduct of business of all financial guarantors licensed to do business in New York, including Ambac Assurance. The New York financial guarantee insurance law also establishes single risk and aggregate limits with respect to obligations insured by financial guarantee insurers. Such single risk limits are specific to the type of insured obligation (for example, municipal or asset-backed). Under the aggregate limits, policyholders’ surplus and contingency reserves must at least equal a percentage of aggregate net financial guarantee liability that is equal to the sum of various percentages of aggregate net liability for various categories of specified obligations. Wisconsin laws and regulations applicable to financial guarantors, as well as the laws of several other states, are less comprehensive than New York law and relate primarily to single and aggregate risk limits.

As a result of decreased statutory capital resulting from the significant losses experienced by Ambac Assurance, Ambac Assurance is not in compliance with applicable regulatory single and aggregate risk limits. Through run-off of the portfolio, Ambac Assurance will seek to reduce its exposure to no more than the permitted amounts, but may not be able to do so. Everspan is in compliance with all of such limits.

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

Ambac Assurance’s ability to pay dividends is generally restricted by law and subject to approval by OCI. Wisconsin insurance law restricts the payment of dividends in any 12-month period without regulatory approval to the lesser of (a) 10% of policyholders’ surplus as of the preceding December 31, and (b) the greater of (i) statutory net income (loss) for the calendar year preceding the date of dividend, minus realized capital gains for that calendar year or (ii) the aggregate of statutory net income (loss) for three calendar years preceding the date of the dividend, minus realized capital gains for those calendar years and minus dividends paid or credited within the first two of the three preceding calendar years. In connection with the termination of reinsurance contracts, OCI requires adjustments to the dividend calculation for any surplus or net income gains recognized. Additionally, no quarterly dividend may exceed the dividend paid in the corresponding quarter of the preceding year by more than 15% without notifying OCI 30 days in advance of payment. Based upon these restrictions, at December 31, 2013, Ambac Assurance will not be able to pay common stock dividends during 2014 without regulatory approval. Ambac Assurance did not pay cash dividends on its common stock in 2013 or 2012.

Ambac Assurance’s statutory financial statements are prepared on the basis of accounting practices prescribed or permitted by OCI. OCI recognizes only statutory accounting practices prescribed or permitted by the State of Wisconsin for determining and reporting the financial condition and results of operations of an insurance company for determining its solvency under Wisconsin Insurance Law. The National Association of Insurance Commissioners (“NAIC”) Accounting Practices and Procedures manual (“NAIC SAP”) has been adopted as a component of prescribed practices by the State of Wisconsin.

Ambac Assurance’s statutory policyholder surplus and qualified statutory capital were $840,262 and $905,065 at December 31, 2013, respectively as compared to $100,000 and $628,302 as of December 31, 2012, respectively. The Segregated Account reported statutory policyholder surplus of $442,639 and ($61,812) as of December 31, 2013 and 2012, respectively. At December 31, 2013, Ambac Assurance’s surplus as regards to policyholders exceeds the Minimum Surplus Amount. At December 31, 2012, Ambac Assurance’s surplus as regards to policyholders was at the Minimum Surplus and therefore $163,687 of the Segregated Account’s insurance liabilities were not assumed by Ambac Assurance under the Reinsurance Agreement. Statutory capital and surplus differs from stockholders’ equity determined under GAAP principally due to statutory accounting rules that treat loss reserves, consolidation of subsidiaries, premiums earned, policy acquisition costs and deferred income taxes differently. Additionally, Fresh Start accounting is not applicable under statutory accounting principles.

The Wisconsin Insurance Commissioner has prescribed or permitted additional accounting practices for Ambac Assurance and the Segregated Account of Ambac Assurance. As a result of the prescribed and permitted practices discussed below, Ambac Assurance’s statutory surplus at December 31, 2013 and December 31, 2012 was lower by $227,334 and greater by $81,846, respectively, than if Ambac Assurance and the Segregated Account had reported such amounts in accordance with NAIC SAP.

OCI has prescribed an accounting practice related to the total liabilities and total surplus of the Segregated Account that are reported as discrete components of Ambac Assurance’s liabilities and surplus reported in Ambac Assurance’s statutory basis financial statements. Pursuant to this prescribed practice, the results of the Segregated Account are not included in Ambac Assurance’s financial statements if Ambac Assurance’s surplus is (or would be) less than the Minimum Surplus Amount.

OCI has prescribed an additional accounting practice that differs from NAIC SAP. Paragraph 7 of Statement of Statutory Accounting Principles No. 60 “Financial Guaranty Insurance” (“SSAP 60”) allows for a deduction from loss reserves for the time value of money by application of a discount rate equal to the average rate of return on the admitted assets of the financial guaranty insurer as of the date of the computation of the reserve. The discount rate shall be adjusted at the end of each calendar year. Additionally, in accordance with paragraph 7 of Statutory Accounting Principles No. 5 “Liabilities, Contingencies and Impairments of Assets,” Ambac Assurance records probable losses on

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

its subsidiaries credit derivative contracts, using a discount rate equal to the average rate of return on its admitted assets. Ambac Assurance’s average rates of return on its admitted assets at December 31, 2013 and December 31, 2012 were 9.80% and 8.01%, respectively. OCI has directed Ambac Assurance to utilize a prescribed discount rate of 5.10% for the purpose of discounting both its loss reserves and its estimated impairment losses on subsidiary guarantees.

OCI has prescribed an additional accounting practice that differs from NAIC SAP. Paragraph 4 of Statement of Statutory Accounting Principles No. 41 “Surplus Notes” (“SSAP 41”) states that proceeds received by the issuer of surplus notes must be in the form of cash or other admitted assets having readily determinable values and liquidity satisfactory to the commissioner of the state of domicile. Under the statutory accounting principles as generally applied, surplus notes issued in conjunction with commutations or the settlement of claims would be valued at zero upon issuance pursuant to paragraph 4, SSAP 41. OCI has directed Ambac Assurance to record surplus notes issued in connection with commutations or the settlement of claims at full par value upon issuance as in these instances the surplus notes do not represent a contribution of capital, but rather a distribution of value from the common and preferred shareholders of Ambac Assurance. The surplus notes issued in connection with commutations or settlement of claims has a claim against surplus senior to the preferred and common shareholders. Statutory surplus is not impacted as a result of the prescribed practice as it is a reclassification from unassigned funds to surplus notes.

OCI has extended the preceding prescribed practice related to surplus notes to the evaluation of other-than-temporary impairments for Ambac Assurance guaranteed securities held in the investment portfolio. Paragraph 35 of Statement of Statutory Accounting Principles No. 43R “Loan-backed and Structured Securities” states that when an other-than-temporary impairment has occurred, the amount of the other-than-temporary impairment recognized as a realized loss shall equal the difference between the investment’s amortized cost basis and the present value of cash flows expected to be collected, discounted at the loan-backed or structured security’s effective interest rate. Under NAIC SAP, the present value of cash flows expected to be collected should include the fair value of surplus notes received from Ambac Assurance, as required under the confirmed Segregated Account Rehabilitation Plan. OCI has prescribed an accounting practice that differs from NAIC SAP and has directed Ambac Assurance to utilize par value rather than fair value of these surplus notes in this computation.

Wisconsin accounting practices for changes to contingency reserves differ from NAIC SAP. Under NAIC SAP, contributions to and releases from the contingency reserve are recorded via a direct charge or credit to surplus. Under the Wisconsin Administrative Code, contributions to and releases from the contingency reserve are to be recorded through underwriting income. Ambac Assurance received permission from OCI to record contributions to and releases from the contingency reserve and the related tax and loss bond impact, in accordance with NAIC SAP. Statutory surplus is the same using each of these accounting practices.

Ambac Assurance received permission from OCI to report investment holdings of Ambac Assurance insured securities, with coverage under financial guaranty policies that have been allocated to the Segregated Account, as a separate invested asset on the balance sheet rather than combined with other bond investments. This permitted practice only impacts the balance sheet classification and has no impact on the valuation of the securities to which it applies or to statutory surplus.

United Kingdom

The Prudential Regulatory Authority (“PRA”) and Financial Conduct Authority (“FCA”) (and their predecessor regulator the Financial Services Authority (“FSA”)) have exercised significant oversight of Ambac UK since 2008, after Ambac, Ambac Assurance and Ambac UK began experiencing financial stress. In 2009, Ambac UK’s license to write new business was curtailed by the FSA and the insurance license was limited to undertaking only run-off related activity. As such, Ambac UK is authorized to run-off its credit, suretyship and financial guarantee insurance portfolio in the United Kingdom, and to do the same through a branch in Milan,

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Italy, and a number of other European Union (“EU”) countries. EU legislation has allowed Ambac UK to conduct business in EU states other than the United Kingdom through a “passporting” arrangement, which eliminates the necessity of additional licensing or authorization in those other EU jurisdictions.

The PRA and FCA is the dual statutory regulator responsible for regulating the financial services industry in the United Kingdom, with the purpose of maintaining confidence in the U.K. financial system, providing public understanding of the system, securing the proper degree of protection for consumers and helping to reduce financial crime. In addition, the regulatory regime in the United Kingdom must comply with certain EU legislation binding on all EU member states.

The PRA requires that non-life insurance companies such as Ambac UK maintain a margin of solvency at all times in respect of the liabilities of the insurance company, the calculation of which depends on the type and amount of insurance business a company writes.

10.        FAIR VALUE MEASUREMENTS

The Fair Value Measurement Topic of the ASC establishes a framework for measuring fair value and disclosures about fair value measurements.

Fair value Hierarchy:

The Fair Value Measurement Topic of the ASC specifies a fair value hierarchy based on whether the inputs to valuation techniques used to measure fair value are observable or unobservable. Observable inputs reflect market data obtained from independent sources, while unobservable inputs reflect Company-based assumptions. The fair value hierarchy prioritizes model inputs into three broad levels as follows:

 

        •  Level 1    Quoted prices for identical instruments in active markets. Assets and liabilities classified as Level 1 include US Treasury securities, exchange traded futures contracts, variable rate demand obligations, money market funds and mutual funds.
        •  Level 2    Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations in which all significant inputs and significant value drivers are observable in active markets. Assets and liabilities classified as Level 2 generally include direct investments in fixed income securities representing municipal, asset-backed and corporate obligations, financial services derivatives (including certain interest rate derivatives), and most long-term debt of variable interest entities consolidated under the Consolidation Topic of the ASC. Also included are equity interests in pooled investment funds measured at fair value where the investment can be redeemed in the near term at a value based on the net asset value.
        •  Level 3    Model derived valuations in which one or more significant inputs or significant value drivers are unobservable. This hierarchy requires the use of observable market data when available. Assets and liabilities classified as Level 3 include credit derivative contracts written as part of the financial guarantee business, certain financial services interest rate swap contracts, call options on long-term debt, equity interests in Ambac sponsored special purpose entities and certain investments in fixed income securities. Additionally, Level 3 assets and liabilities generally include fixed income securities, loan receivables, and certain long-term debt of variable interest entities consolidated under the Consolidation Topic of the ASC.

The following table sets forth the carrying amount and fair value of Ambac’s financial assets and liabilities as of December 31, 2013 and December 31, 2012, including the level within the fair value hierarchy at which fair

 

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value measurements are categorized. As required by the Fair Value Measurement Topic of the ASC financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement.

 

    Successor Ambac  
    Carrying
Amount
    Total Fair
Value
    Fair Value Measurements Categorized as:  
      Level 1     Level 2     Level 3  

December 31, 2013

         

Financial assets:

         

Fixed income securities:

         

Municipal obligations

  $ 1,377,723      $ 1,377,723      $ —        $ 1,377,723      $ —     

Corporate obligations

    1,489,369        1,489,369        —          1,485,867        3,502   

Foreign obligations

    124,877        124,877        —          124,877        —     

U.S. government obligations

    126,248        126,248        126,248        —          —     

U.S. agency obligations

    32,154        32,154        —          31,946        208   

Residential mortgage-backed securities

    1,558,625        1,558,625        —          1,558,625        —     

Collateralized debt obligations

    183,872        183,872        —          183,872        —     

Other asset-backed securities

    992,448        992,448        —          928,375        64,073   

Fixed income securities, pledged as collateral:

         

U.S. government obligations

    126,223        126,223        126,223        —          —     

Short term investments

    271,119        271,119        267,612        3,507        —     

Other investments

    241,069        241,069        —          240,969        100   

Cash

    77,370        77,370        77,370        —          —     

Loans

    6,179        6,238        —          —          6,238   

Derivative assets:

         

Interest rate swaps—asset position

    76,631        76,631        —          76,631        —     

Interest rate swaps—liability position

    (1,257     (1,257     —          (1,257     —     

Futures contracts

    2,337       2,337       2,337        —         —    

Other assets

    13,384        13,384        —          —          13,384   

Variable interest entity assets:

         

Fixed income securities:

         

Corporate obligations

    2,475,182        2,475,182        —          —          2,475,182   

Restricted cash

    17,498        17,498        17,498        —          —     

Loans

    13,398,895        13,398,895        —          —          13,398,895   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total financial assets

  $ 22,589,946      $ 22,590,005      $ 617,288      $ 6,011,135      $ 15,961,582   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Financial liabilities:

         

Obligations under investment and repurchase agreements

  $ 359,070      $ 360,506      $ —        $ —        $ 360,506   

Long term debt, including accrued interest

    1,256,602        1,215,029        —         —         1,215,029   

Derivative liabilities:

         

Credit derivatives

    94,322        94,322        —         —         94,322   

Interest rate swaps—asset position

    (55,619     (55,619     —         (55,619     —    

Interest rate swaps—liability position

    215,030        215,030        —         122,418        92,612   

Other contracts

    165        165        —         165        —    

Liabilities for net financial guarantees written (1)

    4,509,539        4,876,617        —         —         4,876,617   

Variable interest entity liabilities:

         

Long-term debt

    14,091,753        14,091,753        —         12,577,148        1,514,605   

Derivative liabilities:

         

Interest rate swaps—liability position

    1,680,834        1,680,834        —         1,680,834        —    

Currency swaps—liability position

    91,472        91,472        —         91,472        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total financial liabilities

  $ 22,243,168      $ 22,570,109      $ —        $ 14,416,418      $ 8,153,691   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) The carrying value of net financial guarantees written includes the following balance sheet items: Premium receivables; Reinsurance recoverable on paid and unpaid losses; Deferred ceded premium; Subrogation recoverable; Insurance intangible asset; Unearned premiums; Losses and loss expense reserve; Ceded premiums payable, premiums taxes payable and other deferred fees recorded in Other liabilities.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

    Predecessor Ambac  
    Carrying
Amount
    Total Fair
Value
    Fair Value Measurements Categorized as:  
      Level 1     Level 2     Level 3  

December 31, 2012

         

Financial assets:

         

Fixed income securities:

         

Municipal obligations

  $ 1,848,932      $ 1,848,932      $ —       $ 1,848,932      $ —    

Corporate obligations

    1,077,972        1,077,972        —         1,074,316        3,656   

Foreign obligations

    70,112        70,112        —         70,112        —    

U.S. government obligations

    127,283        127,283        127,283        —         —    

U.S. agency obligations

    82,535        82,535        —         82,535        —    

Residential mortgage-backed securities

    1,455,582        1,455,582        —         1,455,582        —    

Collateralized debt obligations

    33,342        33,342        —         26,860        6,482   

Other asset-backed securities

    706,637        706,637        —         656,373        50,264   

Fixed income securities, pledged as collateral:

         

U.S. government obligations

    265,779        265,779        265,779        —         —    

Short term investments

    661,658        661,658        657,886        3,772        —    

Other investments

    100        100        —         —         100   

Cash

    43,837        43,837        43,837        —         —    

Loans

    9,203        7,387        —         —         7,387   

Derivative assets:

         

Interest rate swaps—asset position

    124,853        124,853        —         124,853        —    

Interest rate swaps—liability position

    —         —         —         —         —    

Futures contracts

    1,253        1,253        1,253        —         —    

Other assets

    14,557        14,557        —         —         14,557   

Variable interest entity assets:

         

Fixed income securities:

         

Corporate obligations

    2,261,294        2,261,294        —         —         2,261,294   

Restricted cash

    2,290        2,290        2,290        —         —    

Loans

    15,568,711        15,560,051        —         200,978        15,359,073   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total financial assets

  $ 24,355,930      $ 24,345,454      $ 1,098,328      $ 5,544,313      $ 17,702,813   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Financial liabilities:

         

Obligations under investment and repurchase agreements

  $ 362,017      $ 361,905      $ —       $ —       $ 361,905   

Liabilities subject to compromise

    1,690,312        434,823        —         434,823        —    

Long term debt, including accrued interest

    377,524        801,277        —         —         801,277   

Derivative liabilities:

         

Credit derivatives

    213,585        213,585        —         —         213,585   

Interest rate swaps—asset position

    (73,264     (73,264     —         (73,264     —    

Interest rate swaps—liability position

    390,774        390,774        —         282,022        108,752   

Other contracts

    220        220        —         220        —    

Liabilities for net financial guarantees written

    7,074,808        3,091,257        —         —         3,091,257   

Variable interest entity liabilities:

         

Long-term debt

    15,436,008        15,414,233        —         12,457,732        2,956,501   

Derivative liabilities:

         

Interest rate swaps—liability position

    2,131,315        2,131,315        —         2,131,315        —    

Currency swaps—liability position

    90,466        90,466        —         90,466        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total financial liabilities

  $ 27,693,765      $ 22,856,591      $ —       $ 15,323,314      $ 7,533,277   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Determination of Fair Value:

When available, the Company uses quoted active market prices specific to the financial instrument to determine fair value, and classifies such items within Level 1. Because many fixed income securities do not trade on a daily basis, pricing sources apply available information through processes such as matrix pricing to calculate fair value. In those cases, the items are classified within Level 2. If quoted market prices are not available, fair value is based upon models that use, where possible, current market-based or independently-sourced market parameters. Items valued using valuation models are classified according to the lowest level input or value driver that is significant to the valuation. Thus, an item may be classified in Level 3 even though there may be significant inputs that are readily observable.

The determination of fair value for financial instruments categorized in Level 2 or 3 involves significant judgment due to the complexity of factors contributing to the valuation. Third-party sources from which we obtain independent market quotes also use assumptions, judgments and estimates in determining financial instrument values and different third parties may use different methodologies or provide different prices for securities. We believe the potential for differences in third-party pricing levels is particularly significant with respect to residential mortgage-backed and certain other asset-backed securities held in our investment portfolio and referenced in our credit derivative portfolio, due to the low levels of trading activity for such securities. In addition, the use of internal valuation models may require assumptions about hypothetical or inactive markets. As a result of these factors, the actual trade value of a financial instrument in the market, or exit value of a financial instrument position by Ambac, may be significantly different from its recorded fair value.

Ambac’s financial instruments carried at fair value are mainly comprised of investments in fixed income securities, equity interests in pooled investment funds, derivative instruments, most variable interest entity assets and liabilities and equity interests in Ambac sponsored special purpose entities. Valuation of financial instruments is performed by Ambac’s finance group using methods approved by senior financial management with consultation from risk management and portfolio managers as appropriate. Preliminary valuation results are discussed with portfolio managers quarterly to assess consistency with market transactions and trends as applicable. Market transactions such as trades or negotiated settlements of similar positions, if any, are reviewed quarterly to validate fair value model results. However many of the financial instruments valued using significant unobservable inputs have very little or no observable market activity. Methods and significant inputs and assumptions used to determine fair values across portfolios are reviewed quarterly by senior financial management. Additionally, changes to fair value methods and assumptions are reviewed with the Chief Executive Officer and the Audit Committee when such changes may be material to the company’s financial position or results. Other valuation control procedures specific to particular portfolios are described further below.

We reflect Ambac’s own creditworthiness in the fair value of financial liabilities by including a credit valuation adjustment (“CVA”) in the determination of fair value. A decline (increase) in Ambac’s creditworthiness as perceived by market participants will generally result in a higher (lower) CVA, thereby lowering (increasing) the fair value of Ambac’s financial liabilities as reported.

Fixed Income Securities:

The fair values of fixed income investment securities held by Ambac and its operating subsidiaries are based primarily on market prices received from dealer quotes or alternative pricing sources with reasonable levels of price transparency. Such quotes generally consider a variety of factors, including recent trades of the same and similar securities. For those fixed income investments where quotes were not available, fair values are based on

 

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internal valuation models. Key inputs to the internal valuation models include maturity date, coupon and yield curves for asset-type and credit rating characteristics that closely match those characteristics of the specific investment securities being valued. Longer (shorter) expected maturities or higher (lower) yields used in the valuation model will, in isolation, result in decreases (increases) in fair value. Generally, lower credit ratings or longer expected maturities will be accompanied by higher yields used to value a security. At December 31, 2013, approximately 11%, 88%, and 1% of the investment portfolio (excluding variable interest entity investments) was valued using dealer quotes, alternative pricing sources with reasonable levels of price transparency and internal valuation models, respectively. At December 31, 2012, approximately 10%, 89%, and 1% of the investment portfolio (excluding variable interest entity investments) was valued using dealer quotes, alternative pricing sources with reasonable levels of price transparency and internal valuation models, respectively.

Ambac performs various review and validation procedures to quoted and modeled prices for fixed income securities, including price variance analyses, missing and static price reviews, overall valuation analyses by senior traders and finance managers and reviews associated with our ongoing impairment analysis. Unusual prices identified through these procedures will be evaluated further against separate broker quotes (if available) or internally modeled prices, and the pricing source values will be challenged as necessary. Price challenges generally result in the use of the pricing source’s quote as originally provided or as revised by the source following their internal diligence process. A price challenge may result in a determination that the pricing source cannot provide a reasonable value for a security or cannot adequately support a quote, in which case Ambac would resort to using either other quotes or internal models. Results of price challenges are reviewed and approved by senior traders and finance managers.

The reported fair values of Level 2 fixed income securities are obtained from third party quotes. Information about the valuation inputs for fixed income securities classified as Level 3 is included below:

Corporate obligations: These securities represent interest only strips of investment grade corporate obligations. The fair value of such securities classified as Level 3 was $3,502 and $3,656 at December 31, 2013 and December 31, 2012, respectively. Fair value was calculated using a discounted cash flow approach with the discount rate determined from the yields of corporate bonds from the same issuers. Significant inputs for the interest only strips valuation at December 31, 2013 and December 31, 2012 include the following weighted averages:

Successor Ambac—   December 31, 2013

 

  a. Coupon rate: 0.345%

 

  b. Maturity: 20.14 years

 

  c. Yield: 6.30%

Predecessor Ambac—December 31, 2012

 

  a. Coupon rate: 0.345%

 

  b. Maturity: 21.14 years

 

  c. Yield: 6.08%

U.S. agency obligations: These notes are secured by separate lease rental agreements with the U.S. Government acting through the General Services Administration. The fair value of such securities classified as Level 3 was $208 and $0 at December 31, 2013 and December 31, 2012, respectively. Fair value was calculated using a discounted cash flow approach with the yield based on comparable U.S. agency

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

securities. Significant inputs for the valuation at December 31, 2013 include the following weighted averages:

Successor Ambac—   December 31, 2013

 

  a. Coupon rate: 6.98%

 

  b. Maturity: 1.37 years

 

  c. Yield: 0.39%

Collateralized debt obligations (“CDO”): These securities are floating rate senior notes where the underlying securities of the CDO consist of subordinated bank perpetual preferred securities. The fair value of such securities classified as Level 3 was $0 and $6,482 at December 31, 2013 and December 31, 2012, respectively. Fair value was calculated using a discounted cash flow approach with expected future cash flows discounted using a yield curve consistent with the security type and rating. Significant inputs for the valuation at December 31, 2012 include the following weighted averages:

Predecessor Ambac—December 31, 2012

 

  a. Coupon rate: 1.05%

 

  b. Maturity: 1.51 years

 

  c. Yield: 5.92%

Other asset-backed securities: These securities are floating rate investment grade notes collateralized by various asset types. The fair value of such securities classified as Level 3 was $64,073 and $50,264 at December 31, 2013 and December 31, 2012, respectively. Fair value was calculated using a discounted cash flow approach with expected future cash flows discounted using a yield curve consistent with the security type and rating. Significant inputs for the valuation at December 31, 2013 and December 31, 2012 include the following weighted averages:

Successor Ambac—   December 31, 2013

 

  a. Coupon rate: 0.64%

 

  b. Maturity: 7.15 years

 

  c. Yield: 2.34%

Predecessor Ambac—December 31, 2012

 

  a. Coupon rate: 0.71%

 

  b. Maturity: 7.86 years

 

  c. Yield: 7.50%

Other Investments:

Other investments primarily relate to investments in pooled investment funds, which are valued using the net asset value (“NAV”) per share, calculated on at least a monthly basis where NAV is the basis for determining the redemption value of the investment. These investments are classified as Level 2 as redemptions may be made in the near term (within 90 days) without significant impediments or restrictions. Ambac assesses impediments to redemption and other factors that may restrict the ability to redeem investments in the near term or at values approximating the NAV and may classify the investments as Level 3 if such factors exist.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Derivative Instruments:

Ambac’s derivative instruments primarily comprise interest rate and credit default swaps, and exchange traded futures contracts. All call options to repurchase surplus notes were exercised or expired in June 2012. Fair value is determined based upon market quotes from independent sources, when available. When independent quotes are not available, fair value is determined using valuation models. These valuation models require market-driven inputs, including contractual terms, credit spreads and ratings on underlying referenced obligations, yield curves and tax-exempt interest ratios. The valuation of certain interest rate as well as all credit derivative contracts also require the use of data inputs and assumptions that are determined by management and are not readily observable in the market. Under the Fair Value Measurement Topic of the ASC, Ambac is required to consider its own credit risk when measuring the fair value of derivative and other liabilities. The fair value of credit derivative liabilities was reduced by $38,966 and $261,203 at December 31, 2013 and December 31, 2012, as a result of incorporating a CVA into the valuation model for these transactions. Interest rate swaps and other derivative liabilities may also require an adjustment to fair value to reflect Ambac’s credit risk. Derivative liabilities were reduced by $48,425 and $121,928 at December 31, 2013 and December 31, 2012, as a result of Ambac CVA adjustments to derivative contracts other than credit derivatives. Additional factors considered in estimating the amount of any Ambac CVA on such contracts include collateral posting provisions, right of set-off with the counterparty, the period of time remaining on the derivatives and the pricing of recent terminations.

As described further below, certain valuation models require other inputs that are not readily observable in the market. The selection of a model to value a derivative depends on the contractual terms of, and specific risks inherent in the instrument as well as the availability of pricing information in the market.

For derivatives that are less complex and trade in liquid markets or may be valued primarily by reference to interest rates and yield curves that are observable and regularly quoted, such as interest rate swaps, we utilize vendor-developed models. These models provide the net present value of the derivatives based on contractual terms and observable market data. Downgrades of Ambac Assurance, as guarantor of the financial services derivatives, have increased collateral requirements and triggered termination provisions in certain interest rate swaps. Increased termination activity since the initial rating downgrades of Ambac Assurance provided additional information about the replacement and/or exit value of certain financial services derivatives, which has been incorporated into the fair value of these derivatives as appropriate. Generally, the need for counterparty (or Ambac) CVAs is mitigated by the existence of collateral posting agreements under which adequate collateral has been posted. Derivative contracts entered into with financial guarantee customers are not typically subject to collateral posting agreements. Counterparty credit risk related to such customer derivative assets is included in our fair value adjustments.

For derivatives that do not trade, or trade in less liquid markets such as credit derivatives, a proprietary model is used because such instruments tend to be unique, contain complex or heavily modified and negotiated terms, and pricing information is not readily available in the market. Derivative fair value models and the related assumptions are continuously re-evaluated by management and enhanced, as appropriate, based on improvements in modeling techniques. Ambac has not made any significant changes to its modeling techniques or related model inputs for the periods presented.

Credit Derivatives (“CDS”):

Fair value of Ambac’s CDS is determined using internal valuation models and represents the net present value of the difference between the fees Ambac originally charged for the credit protection and our estimate of what a financial guarantor of comparable credit quality would hypothetically charge to provide the same

 

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protection at the balance sheet date. Ambac competed in the financial guarantee market, which differs from the credit markets where Ambac-insured obligations may trade. As a financial guarantor, Ambac assumes only credit risk; we do not assume other risks and costs inherent in direct ownership of the underlying reference securities. Additionally, as a result of having the ability to influence our CDS counterparty in certain investor decisions, financial guarantors generally have the ability to actively remediate the credit, potentially reducing the loss given a default. Financial guarantee contracts, including CDS, issued by Ambac and its competitors are typically priced to capture some portion of the spread that would be observed in the capital markets for the underlying (insured) obligation. Such pricing was well established by historical financial guarantee fees relative to capital market spreads as observed and executed in competitive markets, including in financial guarantee reinsurance and secondary market transactions. Because of this relationship and in the absence of severe credit deterioration, changes in the fair value of our credit default swaps will generally be less than changes in the fair value of the underlying reference obligations.

Key variables used in our valuation of substantially all of our credit derivatives include the balance of unpaid notional, expected term, fair values of the underlying reference obligations, reference obligation credit ratings, assumptions about current financial guarantee CDS fee levels relative to reference obligation spreads and the CVA applied against Ambac Assurance liabilities by market participants. Notional balances, expected remaining term and reference obligation credit ratings are monitored and determined by Ambac’s risk group. Fair values of the underlying reference obligations are obtained from broker quotes when available, or are derived from other market indications such as new issuance spreads and quoted values for similar transactions. Implicit in the fair values we obtain on the underlying reference obligations are the market’s assumptions about default probabilities, default timing, correlation, recovery rates and collateral values.

Broker quotes on the reference obligations named in our CDS contracts represent an input to determine the estimated fair value of the CDS contract. Broker quotes are indicative values for the reference obligation and generally do not represent a bid or doing-business quote for the reference instrument. Such quotes follow methodologies that are generally consistent with those used to value similar assets on the quote providers’ own books. Methodologies may differ among brokers but are understood to reflect observable trading activity (when available) and modeling that relies on empirical data and reasonable assumptions. For certain CDS contracts referencing unsecuritized pools of assets, we will obtain counterparty quotes on the credit derivative itself. Such quotes are adjusted to reflect Ambac’s own credit risk when determining the fair value of credit derivative liabilities. Third party reference obligation values or specific credit derivative quotes were used in the determination of CDS fair values related to transactions representing 79% of CDS gross par outstanding and 70% of the CDS derivative liability as of December 31, 2013.

When broker quotes for reference obligations are not available, reference obligation prices used in the valuation model are estimated internally based on averages of the quoted prices for other transactions of the same bond type and Ambac rating as well as changes in published credit spreads for securities with similar collateral and ratings characteristics. When price quotes of a similar bond type vary significantly or the number of similar transactions is small, management will consider additional factors, such as specific collateral composition and performance and contractual subordination, to identify similar transactions. Reference obligation prices derived internally as described above were used in the determination of CDS fair values related to transactions representing 21% of CDS gross par outstanding and 30% of the CDS derivative liability as of December 31, 2013.

Ambac’s CDS fair value calculations are adjusted for changes in our estimates of expected loss on the reference obligations and observable changes in financial guarantee market pricing. If no adjustment is considered necessary, Ambac maintains the same percentage of the credit spread (over LIBOR) demanded in the

 

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market for the reference obligation as existed at the inception of the CDS. Therefore, absent changes in expected loss on the reference obligations or financial guarantee CDS market pricing, the financial guarantee CDS fee used for a particular contract in Ambac’s fair value calculations represent a consistent percentage, period to period, of the credit spread determinable from the reference obligation value at the balance sheet date. This results in a CDS fair value balance that fluctuates in proportion with the reference obligation value.

The amount of expected loss on a reference obligation is a function of the probability that the obligation will default and severity of loss in the event of default. Ambac’s CDS transactions were all originally underwritten with extremely low expected losses. Both the reference obligation spreads and Ambac’s CDS fees at the inception of these transactions reflect these low expected losses. When reference obligations experience credit deterioration, there is an increase in the probability of default on the obligation and, therefore, an increase in expected loss. Ambac reflects the effects of changes in expected loss on the fair value of its CDS contracts by increasing the percentage of the reference obligation spread (over LIBOR) which would be captured as a CDS fee (“relative change ratio”) at the valuation date, resulting in a higher mark-to-market loss on our CDS relative to any price decline on the reference obligation. The fundamental assumption is that financial guarantee CDS fees will increase relative to reference obligation spreads as the underlying credit quality of the reference obligation deteriorates and approaches payment default. For example, if the credit spread of an underlying reference obligation was 80 basis points at the inception of a transaction and Ambac received a 20 basis point fee for issuing a CDS on that obligation, the relative change ratio, which represents the CDS fee to cash market spread Ambac would utilize in its valuation calculation, would be 25%. If the reference obligation spread increased to 100 basis points in the current reporting period, absent any observable changes in financial guarantee CDS market pricing or credit deterioration, Ambac’s current period CDS fee would be computed by multiplying the current reference obligation spread of 100 basis points by the relative change ratio of 25%, resulting in a 25 basis point fee. Thus, the model indicates we would need to receive an additional 5 basis points (25 basis points currently less the 20 basis points contractually received) for issuing a CDS in the current reporting period for this reference obligation. We would then discount the product of the notional amount of the CDS and the 5 basis point hypothetical CDS fee increase, over the weighted average life of the reference obligation to compute the current period mark-to-market loss. Using the same example, if the reference obligation spread increased to 100 basis points and there was credit deterioration as evidenced by an internal rating downgrade which increased the relative change ratio from 25% to 35%, we would estimate a 15 basis point CDS fee increase in our model (35% of 100 basis points reference obligation spread, or 35 basis points currently, less the 20 basis points contractually received). Therefore, we would record a higher mark-to-market loss based on the computations described above absent any observable changes in financial guarantee CDS market pricing.

We do not adjust the relative change ratio until an actual internal rating downgrade has occurred unless we observe new pricing on financial guarantee CDS contracts. However, because we have active surveillance procedures in place for our entire CDS portfolio, particularly for transactions at or near a below investment grade threshold, we believe it is unlikely that an internal downgrade would lag the actual credit deterioration of a transaction for any meaningful time period. The factors used to increase the relative change ratio are based on rating agency probability of default percentages determined by management to be appropriate for the relevant bond type. That is, the probability of default associated with the respective tenor and internal rating of each CDS transaction is utilized in the computation of the relative change ratio in our CDS valuation model. The new relative change ratio in the event of an internal downgrade of the reference obligation is calculated as the weighted average of: (i) a given transaction’s inception relative change ratio and (ii) a ratio of 100%. The weight given to the inception relative change ratio is 100% minus the current probability of default (the probability of non-default) and the weight given to using a 100% relative change ratio is the probability of default. For example, assume a transaction having an inception relative change ratio of 33% is downgraded to B-during the period, at which time it has an estimated remaining life of 8 years. If the estimated probability of default for an

 

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8 year, B-rated credit of this type is 60% then the revised relative change ratio will be 73.2%. The revised relative change ratio can be calculated as 33% x (100%-60%) + 100% x 60% = 73.2%.

As noted above, reference obligation spreads incorporate market perceptions of default probability and loss severity as well as liquidity risk and other factors. Loss severities are generally correlated to default probabilities during periods of economic stress. By increasing the relative change ratio in our calculations proportionally to default probabilities, Ambac incorporates into its CDS fair value the higher expected loss on the reference obligation (probability of default x loss severity), by increasing the portion of reference obligation spread that should be paid to the CDS provider.

Ambac incorporates its own credit risk into the valuation of its CDS liabilities by applying a CVA to the calculations described above. Under our methodology, determination of the CDS fair value requires estimating hypothetical financial guarantee CDS fees for a given credit at the valuation date and estimating the present value of those fees. Our approach begins with pricing in the risk of default of the reference obligation using that obligation’s credit spread. The widening of the reference obligation spread results in a mark-to-market loss to Ambac, as the credit protection seller, and a gain to the credit protection buyer because the cost of credit protection on the reference obligation (ignoring CDS counterparty credit risk) will be greater than the amount of the actual contractual CDS fees. The Ambac CVA represents the difference between the present value of the hypothetical fees discounted at Libor compared to rates that incorporate Ambac credit risk. The discount rates used to determine the Ambac CVA are estimated using relevant data points, including quoted prices of securities guaranteed by Ambac Assurance which indicate the value placed by market participants on Ambac Assurance’s insurance obligations and the fair value of Ambac Assurance surplus notes. The resulting Ambac CVA, as a percentage of the CDS mark-to-market liability determined by discounting at Libor, was 29.2% and 55.0% as of December 31, 2013 and December 31, 2012, respectively. In instances where narrower reference obligation spreads result in a CDS asset to Ambac, those hypothetical future CDS fees are discounted at a rate which incorporates our counterparty’s credit spread (i.e. the discount rate used is LIBOR plus the current credit spread of the counterparty).

In addition, when there are sufficient numbers of new observable transactions, negotiated settlements or other market indications of a general change in market pricing trends for CDS on a given bond type, management will adjust its assumptions about the percentage of reference obligation spreads captured as CDS fees to match the current market. No such adjustments were made during the periods presented. Ambac is not transacting CDS business currently and other guarantors have stated they have exited this product. Additionally, there have been no negotiated settlements of CDS contracts during the periods presented.

Key variables which impact the “Realized gains and losses and other settlements” component of “Net change in fair value of credit derivatives” in the Consolidated Statements of Total Comprehensive Income are the most readily observable variables since they are based solely on the CDS contractual terms and cash settlements. Those variables include premiums received and accrued and losses paid and payable on written credit derivative contracts for the appropriate accounting period. Losses paid and payable reported in “Realized gains and losses and other settlements” include those arising after a credit event that requires a payment under the contract terms has occurred or in connection with a negotiated termination of a contract. The remaining key variables described above impact the “Unrealized gains (losses)” component of “Net change in fair value of credit derivatives.”

The net notional outstanding of Ambac’s CDS contracts were $2,776,103 and $11,281,777 at December 31, 2013 and December 31, 2012, respectively. Credit derivative liabilities at December 31, 2013 and December 31, 2012 had a fair value of $94,322 and $213,585, respectively, and related to underlying reference obligations that are classified as either collateralized loan obligations (“CLOs”) or Other. Information about the above described

 

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model inputs used to determine the fair value of each class of credit derivatives, including the CVA as a percentage of the gross mark-to-market liability before considering Ambac credit risk (“CVA percentage”), as of December 31, 2013 and December 31, 2012 is summarized below:

 

Successor Ambac – As of December 31, 2013

    
     CLOs     Other  (1)  

Notional outstanding

   $ 1,337,737      $ 1,291,371   

Weighted average reference obligation price

     98.0        85.7   

Weighted average life (WAL) in years

     2.1        5.4   

Weighted average credit rating

     AA        BBB-   

Weighted average relative change ratio

     35.3     43.1

CVA percentage

     13.7     30.7

Fair value of derivative liabilities

   $ (7,993   $ (84,780

 

Predecessor Ambac – As of December 31, 2012

    
     CLOs     Other  (1)  

Notional outstanding

   $ 6,155,767      $ 3,701,387   

Weighted average reference obligation price

     96.5        86.9   

Weighted average life (WAL) in years

     2.2        4.2   

Weighted average credit rating

     AA-        A   

Weighted average relative change ratio

     34.4     38.2

CVA percentage

     55.0     55.0

Fair value of derivative liabilities

   $ (34,645   $ (116,086

 

(1) Excludes contracts for which fair values are based on credit derivative quotes rather than reference obligation quotes. Such contracts have a combined notional outstanding of $146,995, WAL of 1.0 years and liability fair value of ($1,549) as of December 31, 2013. Other inputs to the valuation of these transactions at December 31, 2013 include weighted average quotes of 1% of notional, weighted average rating of A+ and Ambac CVA percentage of 8.7%. As of December 31, 2012, these contracts had a combined notional outstanding of $1,424,623, WAL of 7.9 years and liability fair value of ($62,854). Other inputs to the valuation of these transactions at December 31, 2012 include weighted average quotes of 10% of notional, weighted average rating of A and Ambac CVA percentage of 55.0%.

Significant unobservable inputs for credit derivatives include WAL, internal credit rating, relative change ratio and CVA percentage. A longer (shorter) WAL, lower (higher) reference obligation credit rating, higher (lower) relative change ratio or lower (higher) CVA, in isolation, would result in an increase (decrease) in the fair value liability measurement. A change in an internal credit rating of a reference obligation in our model will generally result in a directionally opposite change in the relative change ratio. Also, a shorter (longer) WAL will generally correspond with a lower (higher) CVA percentage.

Call options on long-term debt:

The fair value of Ambac Assurance’s options to repurchase Ambac Assurance surplus notes at a discount to par was estimated based on a combination of internal discounted cash flow analysis and market observations. The discounted cash flow analysis used multiple discount rate scenarios to determine the present value of the surplus notes assuming exercise and non-exercise of the options, with the difference representing the option value under that scenario. The results were probability weighted to determine the recorded option value. All options to repurchase Ambac Assurance surplus notes that were stand-alone derivatives and reported at fair value on the Consolidated Balance Sheets were exercised in June 2012.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Financial Guarantees:

Fair value of net financial guarantees written represents our estimate of the cost to Ambac to completely transfer its insurance obligation to another market participant of comparable credit worthiness. In theory, this amount should be the same amount that another market participant of comparable credit worthiness would hypothetically charge in the market place, on a present value basis, to provide the same protection as of the balance sheet date. This fair value estimate of financial guarantees is presented on a net basis and includes direct and assumed contracts written, net of ceded reinsurance contracts.

The fair value estimate of financial guarantees is computed by utilizing cash flows calculated at the policy level. For direct and assumed contracts, projected net cash flows for each policy included: (i) installment premium receipts, (ii) estimated gross claim payments, and (iii) subrogation receipts. For ceded reinsurance contracts, projected net cash flows for each policy included: (i) installment ceded premium payments, (ii) ceding commission receipts, (iii) ceded claim receipts, and (iv) ceded subrogation payments. For each individual direct, assumed, and ceded reinsurance contract, the respective undiscounted cash flow components are aggregated to determine if we are in a net asset or net liability position. U.S. GAAP requires that the nonperformance risk of a financial liability be included in the estimation of fair value, which includes considering Ambac Assurance’s own credit risk. Accordingly, for each contract in a net liability position, we estimate the fair value using internally developed discount rates that incorporate Ambac’s own credit risk and subsequently apply a profit margin. This profit margin represents what another market participant would require to assume the financial guarantee contracts. This profit margin was developed based on discussions with the third-party institutions with valuation expertise, discussions with industry participants and yields on Ambac Assurance surplus notes. The profit margin was 17% and 20% as of December 31, 2013 and December 31, 2012, respectively. The discount rates used for contracts in a net liability position are derived from the rates implicit in the fair value of surplus notes and guaranteed securities with future cash flows that are highly dependent upon Ambac financial guarantee payments. For each contract in a net asset position, we estimate the fair value using a discount rate that is commensurate with a hypothetical buyer’s cost of capital.

This methodology is based on management’s expectations of how a market participant would estimate net cash flows. We are aware of a number of factors that may cause such fair or exit value to differ, perhaps materially. For example, since no financial guarantor with Ambac’s credit quality is writing new financial guarantee business we do not have access to observable pricing data points. Additionally, although the fair value accounting guidance for liabilities requires a company to consider the cost to completely transfer its obligation to another party of comparable credit worthiness, our primary insurance obligation is irrevocable and thus there is no established active market for transferring such obligations.

Liabilities Subject to Compromise:

The fair value of Ambac’s debt included in Liabilities Subject to Compromise was based on quoted market prices.

Long-term Debt:

The fair value of surplus notes issued by Ambac Assurance and classified as long-term debt is internally estimated considering market transactions when available and internally developed discounted cash flow models. Surplus notes were recorded at fair value at the date of issuance and again at the Fresh Start Reporting Date. In subsequent periods, surplus notes are carried at their face value less unamortized discount.

 

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Other Financial Assets and Liabilities:

The fair values of Ambac’s equity interest in Ambac sponsored special purpose entities (included in Other assets), Loans, and Obligations under investment and repurchase agreements are estimated based upon internal valuation models that discount expected cash flows using discount rates consistent with the credit quality of the obligor after considering collateralization.

Variable Interest Entity Assets and Liabilities:

The financial assets and liabilities of VIEs consolidated under the Consolidation Topic of the ASC consist primarily of fixed income securities, loans, derivative and debt instruments and are generally carried at fair value. These consolidated VIEs are securitization entities which have liabilities and/or assets guaranteed by Ambac Assurance. The fair values of VIE debt instruments are determined using the same methodologies used to value Ambac’s fixed income securities in its investment portfolio as described above. VIE debt fair value is based on market prices received from dealer quotes or alternative pricing sources with reasonable levels of price transparency. Such quotes are considered Level 2 and generally consider a variety of factors, including recent trades of the same and similar securities. For those VIE debt instruments where quotes were not available, the debt instrument fair values are considered Level 3 and are based on internal discounted cash flow models. Comparable to the sensitivities of investments in fixed income securities described above, longer (shorter) expected maturities or higher (lower) yields used in the valuation model will, in isolation, result in decreases (increases) in fair value liability measurement for VIE debt. VIE debt instruments considered Level 3 include fixed rate, floating rate and zero coupon notes secured by various asset types, primarily European ABS. Information about the valuation inputs for the various VIE debt categories classified as Level 3 is as follows:

European ABS transactions: The fair value of such obligations classified as Level 3 was $1,329,985 and $2,956,501 at December 31, 2013 and December 31, 2012, respectively. Fair values were calculated by using a discounted cash flow approach. The discount rates used were based on the rates implied from the third party quoted values (Level 2) for comparable notes from the same securitization. Significant inputs for the valuation at December 31, 2013 and December 31, 2012 include the following weighted averages:

Successor Ambac—December 31, 2013

 

  a. Coupon rate: 0.72%

 

  b. Maturity: 17.86 years

 

  c. Yield: 1.10%

Predecessor Ambac—December 31, 2012

 

  a. Coupon rate: 1.64%

 

  b. Maturity: 12.34 years

 

  c. Yield: 4.02%

US Commercial ABS transaction: The fair value of such obligations classified as Level 3 was $184,620 at December 31, 2013. Fair values were calculated as the sum of expected future cash flows sourced from the underlying operating assets plus the fair value of the related Ambac financial guarantee cash flows. Expected cash flows were internally modeled in using probability weighted assumptions about future operating cash flows available to fund the debt service. The discount rates applied to cash flows sourced from operating assets were based on interest rates for similar obligations. The fair value of financial guarantee cash flows include internal estimates of future loss payments by Ambac discounted at a rate that

 

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incorporates Ambac’s own credit risk. Significant inputs for the valuation at December 31, 2013 include the following weighted averages (there is no comparable Level 3 in this category for December 31, 2012):

Successor Ambac—December 31, 2013

 

  a. Coupon rate: 6.11%

 

  b. Maturity: 6.83 years

 

  c. Yield: 11.95%

VIE derivative asset and liability fair values are determined using valuation models. When specific derivative contractual terms are available and may be valued primarily by reference to interest rates, foreign exchange rates and yield curves that are observable and regularly quoted, the derivatives are valued using vendor-developed models. Other derivatives within the VIEs that include significant unobservable valuation inputs are valued using internally developed models. VIE derivative fair value balances at December 31, 2013 and December 31, 2012 were developed using vendor-developed models and do not use significant unobservable inputs.

The fair value of VIE assets are obtained from market quotes when available. Typically the asset fair values are not readily available from market quotes and are estimated internally. The consolidated VIEs are securitization entities in which net cash flows from assets and derivatives (after adjusting for financial guarantor cash flows and other expenses) will be paid out to note holders or equity interests. Our valuation of VIE assets (fixed income securities or loans), therefore, are derived from the fair value of notes and derivatives, as described above, adjusted for the fair value of cash flows from Ambac’s financial guarantee. The fair value of financial guarantee cash flows include: (i) estimated future premiums discounted at a rate consistent with that implicit in the fair value of the VIE’s liabilities and (ii) internal estimates of future loss payments by Ambac discounted at a rate that includes Ambac’s own credit risk. Estimated future premium payments to be paid by the VIEs were discounted at a weighted average rate of 5.1% and 7.6% at December 31, 2013 and December 31, 2012, respectively.

Additional Fair Value Information:

The following tables present the changes in the Level 3 fair value category for the periods presented in 2013 and 2012. Ambac classifies financial instruments in Level 3 of the fair value hierarchy when there is reliance on at least one significant unobservable input to the valuation model. In addition to these unobservable inputs, the valuation models for Level 3 financial instruments typically also rely on a number of inputs that are readily observable either directly or indirectly. Thus, the gains and losses presented below include changes in the fair value related to both observable and unobservable inputs.

 

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Level-3 financial assets and liabilities accounted for at fair value

 

                      VIE Assets and Liabilities        

Successor Ambac – Eight Months Ended
December 31, 2013

  Investments     Other
assets
    Derivatives     Investments     Loans     Long-term
debt
    Total  

Balance, beginning of period

  $ 69,412      $ 14,061      $ (415,360   $ 2,500,565      $ 14,752,053      $ (1,750,372   $ 15,170,359   

Additions of VIEs consolidated

    —          —          —          —          —          —          —     

Total gains/(losses) realized and unrealized:

             

Included in earnings

    1,870        (677     217,666        (178,322     (455,231     (2,490     (417,184

Included in other comprehensive income

    7,184        —          —          152,939        873,986        (79,063     955,046   

Purchases

    —          —          —          —          —          —          —     

Issuances

    —          —          —          —          —          —          —     

Sales

    (4,528     —          —          —          —          —          (4,528

Settlements

    (6,428     —          10,760        —          (219,909     173,196        (42,381

Transfers in Level 3

    273        —          —          —          —          (220,922     (220,649

Transfers out of Level 3

    —          —          —          —          —          365,046        365,046   

Deconsolidation of VIEs

    —          —          —          —          (1,552,004     —          (1,552,004
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance, end of period

  $ 67,783      $ 13,384      $ (186,934   $ 2,475,182      $ 13,398,895      $ (1,514,605   $ 14,253,705   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

  $ —        $ (677   $ 91,436      $ (178,322   $ (475,152   $ (2,490   $ (545,123
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

                      VIE Assets and Liabilities        

Predecessor Ambac – Four Months Ended
April 30, 2013

  Investments     Other
assets
    Derivatives     Investments     Loans     Long-term
debt
    Total  

Balance, beginning of period

  $ 60,402      $ 14,557      $ (322,337   $ 2,261,294      $ 15,359,073      $ (2,956,501   $ 14,416,488   

Additions of VIEs consolidated

    —          —          —          —          —          (409,300     (409,300

Total gains/(losses) realized and unrealized:

             

Included in earnings

    (33     (496     (88,546     328,768        956,402        (138,914     1,057,181   

Included in other comprehensive income

    12,329        —          —          (89,497     (849,833     150,987        (776,014

Purchases

    —          —          —          —          —          —          —     

Issuances

    —          —          —          —          —          —          —     

Sales

    —          —          —          —          —          —          —     

Settlements

    (3,286     —          (4,477     —          (713,589     4,864        (716,488

Transfers in Level 3

    —          —          —          —          —          —          —     

Transfers out of Level 3

    —          —          —          —          —          1,598,492        1,598,492   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance, end of period

  $ 69,412      $ 14,061      $ (415,360   $ 2,500,565      $ 14,752,053      $ (1,750,372   $ 15,170,359   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

  $ —        $ (496   $ (92,002   $ 328,768      $ 956,402      $ (138,914   $ 1,053,758   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

                      VIE Assets and Liabilities        

Predecessor Ambac – Year Ended

December 31, 2012

  Investments     Other
assets
    Derivatives     Investments     Loans     Long-term
debt
    Total  

Balance, beginning of period

  $ 97,522      $ 16,779      $ (486,775   $ 2,199,338      $ 14,126,994      $ (1,934,642   $ 14,019,216   

Additions of VIEs consolidated

    —          —          —          —          —          —          —     

Total gains/(losses) realized and unrealized:

             

Included in earnings

    (3     (2,222     21,076        (41,289     952,463        (208,678     721,347   

Included in other comprehensive income

    7,485        —          —          103,245        637,954        (98,311     650,373   

Purchases

    —          —          —          —          —          —          —     

Issuances

    —          —          —          —          —          (162,460     (162,460

Sales

    —          —          —          —          —          —          —     

Settlements

    (97,206     —          (48,886     —          (358,338     64,781        (439,649

Transfers in Level 3

    58,905        —          —          —          —          (1,875,121     (1,816,216

Transfers out of Level 3

    (6,301     —          192,248       —          —          1,257,930        1,443,877   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance, end of period

  $ 60,402      $ 14,557      $ (322,337   $ 2,261,294      $ 15,359,073      $ (2,956,501   $ 14,416,488   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

  $ —        $ (2,222   $ (113,836   $ (41,289   $ 952,944      $ (208,678   $ 587,983   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The tables below provide roll-forward information by class of investments and derivatives measured using significant unobservable inputs.

Level-3 Investments by class

 

Successor Ambac – Eight Months Ended December 31,
2013

   Collateralized
Debt
Obligations
    Other Asset
Backed
Securities
    Corporate
Obligations
    U.S. Agency
Obligations
    Total
Investments
 

Balance, beginning of period

   $ 3,949      $ 61,782      $ 3,681      $  —       $ 69,412   

Total gains/(losses) realized and unrealized:

          

Included in earnings

     25        1,912        (62     (5 )     1,870   

Included in other comprehensive income

     (19     7,315        (117     5       7,184   

Purchases

     —         —         —         —         —    

Issuances

     —         —         —         —         —    

Sales

     —         (4,528     —         —         (4,528

Settlements

     (3,955     (2,408     —         (65 )     (6,428

Transfers in Level 3

     —         —         —         273        273   

Transfers out of Level 3

     —         —         —         —         —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance, end of period

   $ —       $ 64,073      $ 3,502      $ 208      $ 67,783   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

   $ —       $ —       $ —       $ —       $ —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Table of Contents

AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Predecessor Ambac – Four Months Ended April 30,
2013

   Collateralized
Debt
Obligations
    Other Asset
Backed
Securities
    Corporate
Obligations
    U.S. Agency
Obligations
     Total
Investments
 

Balance, beginning of period

   $ 6,482      $ 50,264      $ 3,656      $ —        $ 60,402   

Additions of VIEs consolidated

     —         —         —         —          —    

Total gains/(losses) realized and unrealized:

           

Included in earnings

     (6     —         (27     —          (33

Included in other comprehensive income

     160        12,117        52        —          12,329   

Purchases

     —         —         —         —          —    

Issuances

     —         —         —         —          —    

Sales

     —         —         —         —          —    

Settlements

     (2,687     (599     —         —          (3,286

Transfers in Level 3

     —         —         —         —          —    

Transfers out of Level 3

     —         —         —         —          —    
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Balance, end of period

   $ 3,949      $ 61,782      $ 3,681      $ —        $ 69,412   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

   $ —       $ —       $ —       $  —        $ —    
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Level-3 Investments by class

 

Predecessor Ambac – Year Ended December 31, 2012

   Collateralized
Debt
Obligations
    Other Asset
Backed
Securities
    Corporate
Obligations
    U.S. Agency
Obligations
    Total
Investments
 

Balance, beginning of period

   $ 12,482      $ 75,886      $ 7,930      $ 1,224      $ 97,522   

Additions of VIEs consolidated

     —         —         —         —         —    

Total gains/(losses) realized and unrealized:

          

Included in earnings

     (5     —         4        (2     (3

Included in other comprehensive income

     646        7,051        (203     (9     7,485   

Purchases

     —         —         —         —         —    

Issuances

     —         —         —         —         —    

Sales

     —         —         —         —         —    

Settlements

     (6,641     (85,741     (4,075     (749     (97,206

Transfers in Level 3

     —         53,068        5,837        —         58,905   

Transfers out of Level 3

     —         —         (5,837     (464     (6,301
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance, end of period

   $ 6,482      $ 50,264      $ 3,656      $ —       $ 60,402   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

   $ —       $ —       $ —       $ —       $ —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Level-3 Derivatives by class

 

Successor Ambac – Eight Months Ended December 31, 2013

   Interest Rate
Swaps
    Credit
Derivatives
    Call Options
on Long-
term debt
     Total
Derivatives
 

Balance, beginning of period

   $ (137,947   $ (277,413   $  —         $ (415,360

Additions of VIEs consolidated

         

Total gains/(losses) realized and unrealized:

         

Included in earnings

     24,797        192,869        —          217,666   

Included in other comprehensive income

     —         —         —          —    

Purchases

     —         —         —          —    

Issuances

     —         —         —          —    

Sales

     —         —         —          —    

Settlements

     20,538        (9,778     —          10,760   

Transfers in Level 3

     —         —         —          —    

Transfers out of Level 3

     —         —         —          —    

Deconsolidation of VIEs

     —         —         —          —    
  

 

 

   

 

 

   

 

 

    

 

 

 

Balance, end of period

   $ (92,612   $ (94,322   $  —        $ (186,934
  

 

 

   

 

 

   

 

 

    

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

   $ 24,797      $ 66,639      $  —        $ 91,436   
  

 

 

   

 

 

   

 

 

    

 

 

 

Level-3 Derivatives by class

 

Predecessor Ambac – Four Months Ended April 30, 2013

   Interest Rate
Swaps
    Credit
Derivatives
    Call Options
on Long-
term debt
     Total
Derivatives
 

Balance, beginning of period

   $ (108,752   $ (213,585   $  —         $ (322,337

Additions of VIEs consolidated

     —         —         —           —    

Total gains/(losses) realized and unrealized:

         

Included in earnings

     (28,162     (60,384     —          (88,546

Included in other comprehensive income

     —         —         —          —    

Purchases

     —         —         —          —    

Issuances

     —         —         —          —    

Sales

     —         —         —          —    

Settlements

     (1,033     (3,444     —          (4,477

Transfers in Level 3

     —         —         —          —    

Transfers out of Level 3

     —         —         —          —    

Deconsolidation of VIEs

     —         —         —          —    
  

 

 

   

 

 

   

 

 

    

 

 

 

Balance, end of period

   $ (137,947   $ (277,413   $  —        $ (415,360
  

 

 

   

 

 

   

 

 

    

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

   $ (28,162   $ (63,840   $  —        $ (92,002
  

 

 

   

 

 

   

 

 

    

 

 

 

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Predecessor Ambac – Year Ended December 31, 2012

   Interest Rate
Swaps
    Credit
Derivatives
    Call Options
on Long-
term debt
    Total
Derivatives
 

Balance, beginning of period

   $ (302,177   $ (190,653   $ 6,055     $ (486,775

Additions of VIEs consolidated

     —         —         —         —    

Total gains/(losses) realized and unrealized:

        

Included in earnings

     (70,415     (9,219     100,710        21,076   

Included in other comprehensive income

     —         —         —         —    

Purchases

     —         —         —         —    

Issuances

     —         —         —         —    

Sales

     —         —         —         —    

Settlements

     71,592        (13,713     (106,765     (48,886

Transfers in Level 3

     —         —         —         —    

Transfers out of Level 3

     192,248        —         —         192,248  

Deconsolidation of VIEs

     —         —         —         —    
  

 

 

   

 

 

   

 

 

   

 

 

 

Balance, end of period

   $ (108,752   $ (213,585   $ —       $ (322,337
  

 

 

   

 

 

   

 

 

   

 

 

 

The amount of total gains/(losses) included in earnings attributable to the change in unrealized gains or losses relating to assets and liabilities still held at the reporting date

   $ (78,505   $ (35,331   $ —       $ (113,836
  

 

 

   

 

 

   

 

 

   

 

 

 

Invested assets and VIE long-term debt are transferred into Level 3 when internal valuation models that include significant unobservable inputs are used to estimate fair value. All such securities that have internally modeled fair values have been classified as Level 3. Derivative instruments are transferred into Level 3 when the use of unobservable inputs becomes significant to the overall valuation. Certain interest rate swaps were transferred out of Level 3 in 2012 when appropriate observable market discount rates replaced internal estimates of such rates in the determination of fair value. All transfers into and out of Level 3 represent transfers between Level 3 and Level 2. There were no transfers between Level 1 and Level 2 for the periods presented. All transfers between fair value hierarchy Levels 1, 2, and 3 are recognized at the beginning of each accounting period.

 

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Table of Contents

AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Gains and losses (realized and unrealized) relating to Level 3 assets and liabilities included in earnings for the affected periods are reported as follows:

 

    Net
investment
income
    Realized
gains or
(losses) and
other
settlements
on credit
derivative
contracts
    Unrealized
gains or
(losses) on
credit
derivative
contracts
    Derivative
products
revenues
(interest rate
swaps)
    (Loss)
income on
variable
interest
entities
    Other
income
 

Successor Ambac :

           

Eight Months Ended December 31, 2013

           

Total gains or losses included in earnings for the period

  $ 1,870      $ 9,778      $ 183,091      $ 24,797      $ (636,043   $ (677

Changes in unrealized gains or losses relating to the assets and liabilities still held at the reporting date

    —         —         66,639        24,797        (655,964     (677

Predecessor Ambac :

           

Four Months Ended April 30, 2013

           

Total gains or losses included in earnings for the period

  $ (33   $ 3,444      $ (63,828   $ (28,162   $ 1,146,256      $ (496

Changes in unrealized gains or losses relating to the assets and liabilities still held at the reporting date

    —         —         (63,840     (28,162     1,146,256        (496

Predecessor Ambac :

           

Year Ended December 31, 2012

           

Total gains or losses included in earnings for the period

  $ (3   $ 13,713      $ (22,932   $ (70,415   $ 702,496      $ 98,488   

Changes in unrealized gains or losses relating to the assets and liabilities still held at the reporting date

    —         —         (35,331     (78,505     702,977        (2,222

11.    INVESTMENTS

Ambac’s invested assets are primarily comprised of fixed income securities classified as available-for-sale and equity interests in pooled investment funds. Such equity interests in the form of common stock or in-substance common stock are classified as trading securities.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The amortized cost and estimated fair value of available-for-sale investments, excluding VIE investments, at December 31, 2013 and December 31, 2012 were as follows:

 

    Amortized
Cost
    Gross
Unrealized
Gains
    Gross
Unrealized
Losses
    Estimated
Fair Value
    Non-credit other-
than-temporary
Impairments  (1)
 

Successor Ambac–December 31, 2013

         

Fixed income securities:

         

Municipal obligations

  $ 1,405,293      $ 857      $ 28,427      $ 1,377,723      $ —    

Corporate obligations

    1,508,377        4,886        23,894        1,489,369        —    

Foreign obligations

    131,709        69        6,901        124,877        —    

U.S. government obligations

    128,415        9        2,176        126,248        —    

U.S. agency obligations

    32,214        10        70        32,154        —    

Residential mortgage-backed securities

    1,516,877        59,853        18,105        1,558,625        852   

Collateralized debt obligations

    184,118        217        463        183,872        —    

Other asset-backed securities

    1,020,251        8,795        36,598        992,448        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    5,927,254        74,696        116,634        5,885,316        852   

Short-term

    271,118        1        —          271,119        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    6,198,372        74,697        116,634        6,156,435        852   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Fixed income securities pledged as collateral:

         

U.S. government obligations

    126,196        27        —         126,223        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total collateralized investments

    126,196        27        —         126,223        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total available-for-sale investments

  $ 6,324,568      $ 74,724      $ 116,634      $ 6,282,658      $ 852   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Predecessor Ambac–December 31, 2012

         

Fixed income securities:

         

Municipal obligations

  $ 1,662,124      $ 187,191      $ 383      $ 1,848,932      $ —    

Corporate obligations

    999,554        87,535        9,117        1,077,972        —    

Foreign obligations

    67,347        2,765        —         70,112        —    

U.S. government obligations

    127,037        872        626        127,283        —    

U.S. agency obligations

    79,295        3,240        —         82,535        —    

Residential mortgage-backed securities

    1,096,202        379,935        20,555        1,455,582        6,892   

Collateralized debt obligations

    32,855        1,015        528        33,342        —    

Other asset-backed securities

    687,410        65,733        46,506        706,637        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    4,751,824        728,286        77,715        5,402,395        6,892   

Short-term

    661,219        439        —         661,658        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    5,413,043        728,725        77,715        6,064,053        6,892   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Fixed income securities pledged as collateral:

         

U.S. government obligations

    265,517        262        —         265,779        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total collateralized investments

    265,517        262        —         265,779        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total available-for-sale investments

  $ 5,678,560      $ 728,987      $ 77,715      $ 6,329,832      $ 6,892   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Represents the amount of non-credit other-than-temporary impairment losses remaining in accumulated other comprehensive loss on securities that also had a credit impairment. These losses are included in gross unrealized losses as of December 31, 2013 and December 31, 2012.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The amortized cost and estimated fair value of available-for-sale investments, excluding VIE investments held by Successor Ambac, at December 31, 2013, by contractual maturity, were as follows:

 

     Amortized
Cost
     Estimated
Fair Value
 

Due in one year or less

   $ 552,974       $ 553,048   

Due after one year through five years

     1,079,855         1,075,612   

Due after five years through ten years

     1,385,296         1,343,119   

Due after ten years

     585,197         575,934   
  

 

 

    

 

 

 
     3,603,322         3,547,713   

Residential mortgage-backed securities

     1,516,877         1,558,625   

Collateralized debt obligations

     184,118         183,872   

Other asset-backed securities

     1,020,251         992,448   
  

 

 

    

 

 

 
   $ 6,324,568       $ 6,282,658   
  

 

 

    

 

 

 

Expected maturities will differ from contractual maturities because borrowers may have the right to call or prepay certain obligations with or without call or prepayment penalties.

Unrealized Losses:

The following table shows gross unrealized losses and fair values of Ambac’s available-for-sale investments, aggregated by investment category and length of time that the individual securities have been in a continuous unrealized loss position, at December 31, 2013 and December 31, 2012:

 

     Less Than 12 Months (1)  
     Fair Value      Gross
Unrealized
Loss
 

Successor Ambac – December 31, 2013:

     

Fixed income securities:

     

Municipal obligations

   $ 437,683       $ 28,427   

Corporate obligations

     877,356         23,894   

Foreign government obligations

     117,905         6,901   

U.S. government obligations

     70,044         2,176   

U.S. agency obligations

     5,834         70   

Residential mortgage-backed securities

     644,502         18,105   

Collateralized debt obligations

     137,685         463   

Other asset-backed securities

     629,957         36,598   
  

 

 

    

 

 

 
     2,920,966         116,634   

Short-term

     —           —     
  

 

 

    

 

 

 

Total temporarily impaired securities

   $ 2,920,966       $ 116,634   
  

 

 

    

 

 

 

 

(1) As a result of the implementation of Fresh Start, amortized cost for available for sale securities were set to equal fair value on April 30, 2013. Accordingly, Successor Ambac does not have any gross unrealized losses that have been in a continuous unrealized loss position for greater than 12 months.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

    Less Than 12 Months     12 Months or More     Total  
    Fair Value     Gross
Unrealized
Loss
    Fair Value     Gross
Unrealized
Loss
    Fair Value     Gross
Unrealized
Loss
 

Predecessor Ambac –December 31, 2012:

           

Fixed income securities:

           

Municipal obligations

  $ 42,503      $ 354      $ 4,303      $ 29      $ 46,806      $ 383   

Corporate obligations

    69,727        1,081        132,916        8,036        202,643        9,117   

U.S. government obligations

    26,081        626        —         —         26,081        626   

Residential mortgage-backed securities

    88,504        5,319        116,146        15,236        204,650        20,555   

Collateralized debt obligations

    253        168        13,429        360        13,682        528   

Other asset-backed securities

    180        3        188,832        46,503        189,012        46,506   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    227,248        7,551        455,626        70,164        682,874        77,715   

Short-term

    1,194        —         —         —         1,194        —    
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total temporarily impaired securities

  $ 228,442      $ 7,551      $ 455,626      $ 70,164      $ 684,068      $ 77,715   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Management has determined that the unrealized losses reflected in the tables above are temporary in nature as of December 31, 2013 and December 31, 2012 based upon (i) no unexpected principal and interest payment defaults on these securities; (ii) analysis of the creditworthiness of the issuer and financial guarantor, as applicable, and analysis of projected defaults on the underlying collateral; (iii) management has no intent to sell these investments; and (iv) it is not more likely than not that Ambac will be required to sell these securities before the anticipated recovery of its amortized cost basis. The assessment under (iv) is based on a comparison of future available liquidity from the investment portfolio against the projected net cash outflow from operating activities and debt service. For purposes of this assessment, available liquidity from the investment portfolio is comprised of the fair value of securities for which management has asserted its intent to sell plus the scheduled maturities and interest payments from the remaining securities in the portfolio. To the extent that securities that management intends to sell are in an unrealized loss position, they would have already been considered other-than-temporarily impaired with the amortized cost written down to fair value. In the liquidity assessment described above, principal payments on securities pledged as collateral are not considered to be available for other liquidity needs until the collateralized positions are projected to be settled. Projected interest receipts on securities pledged as collateral generally belong to Ambac and are considered to be sources of available liquidity from the investment portfolio. Because the above-described assessment indicates that future available liquidity exceeds projected net cash outflow, it is not more likely than not that we would be required to sell securities before the recovery of their amortized cost basis. As of December 31, 2013, for securities that have indications of possible other-than-temporary impairment but which management does not intend to sell and will not more likely than not be required to sell, management compared the present value of cash flows expected to be collected to the amortized cost basis of the securities to assess whether the amortized cost will be recovered. Cash flows were discounted at the effective interest rate implicit in the security at the date of acquisition (or Fresh Start Reporting Date of April 30, 2013 for securities purchased prior to that date) or for debt securities that are beneficial interests in securitized financial assets, at a rate equal to the current yield used to accrete the beneficial interest. For floating rate securities, future cash flows and the discount rate used were both adjusted to reflect changes in the index rate applicable to each security as of the evaluation date. Of the securities that were in a gross unrealized loss position at December 31, 2013, $826,969 of the total fair value and $36,946 of the unrealized loss related to below investment grade securities and non-rated securities. Of the securities that were in a gross unrealized loss position at December 31, 2012, $192,190 of the total fair value and $43,934 of the unrealized loss related to below investment grade securities and non-rated securities. With respect to Ambac-wrapped securities guaranteed under policies that have been allocated to the Segregated Account, future cash flows used to measure credit impairment represents the sum of (i) the bond’s intrinsic cash flows and (ii) the

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

estimated fair value of Ambac claim payments. The Segregated Account has been making interim cash payments in amounts equal to 25% of permitted Segregated Account policy claims since September 2012 (plus, in certain cases, Supplemental Payments as described in Note 1). No final decision has been announced by the Rehabilitator with respect to effectuating or amending the Segregated Account Rehabilitation Plan. Possible modifications to the Segregated Account Rehabilitation Plan, or additional orders from the Rehabilitation Court, with respect to the form, amount and timing of satisfying permitted policy claims could have a material effect on the recognition of other-than-temporary impairment for, and the fair value of, Ambac-wrapped securities. See Note 1 for additional information about the Segregated Account Rehabilitation Plan.

Municipal and corporate obligations

The gross unrealized losses on municipal and corporate obligations as of December 31, 2013 are primarily the result of the increase in interest rates since April 30, 2013. These securities are primarily fixed-rate securities with an investment grade credit rating. Management believes that the timely receipt of all principal and interest on these positions is probable .

Residential mortgage-backed securities

Of the $18,105 of unrealized losses on residential mortgage-backed securities, $12,169 is attributable to Ambac-wrapped securities. The unrealized loss on these securities is primarily the result of discount accretion, which has exceeded the increase in fair value since April 30, 2013. As part of the quarterly impairment review process, management estimates expected future cash flows from residential mortgage-backed securities. This approach includes the utilization of market accepted software models in conjunction with detailed data of the historical performance of the collateral pools, which assists in the determination of assumptions such as defaults, severity and voluntary prepayment rates that are largely driven by home price forecasts as well as other macro-economic factors. These assumptions are used to project future cash flows for each security. Management considered this analysis in making our determination that non-receipt of contractual cash flows is not probable on these transactions.

Other asset-backed securities

Of the $36,598 of unrealized losses on other asset-backed securities as of December 31, 2013, $36,281 is attributable to 6 military housing, fixed-rate securities. The unrealized loss on these securities is largely due to the increase in interest rates since April 30, 2013. Management believes that the timely receipt of all principal and interest on these positions as well as on other asset-backed securities is probable.

Realized Gains and Losses and Other-Than-Temporary Impairments:

The following table details amounts included in net realized (losses) gains and other-than-temporary impairments included in earnings for the affected periods:

 

    Successor Ambac –
Eight Months Ended
December 31, 2013
    Predecessor Ambac –
Four Months Ended
April 30, 2013
    Predecessor Ambac –
Year Ended
December 31, 2012
 

Gross realized gains on securities

  $ 22,983      $ 47,448      $ 73,404   

Gross realized losses on securities

    (10,347     (320     (1,128

Foreign exchange (losses) gains

    (8,169     6,177        (175
 

 

 

   

 

 

   

 

 

 

Net realized gains

  $ 4,467      $ 53,305      $ 72,101   
 

 

 

   

 

 

   

 

 

 
 

Net other-than-temporary impairments (1)

  $ (46,764   $ (467   $ (5,990
 

 

 

   

 

 

   

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

 

(1) Other-than-temporary impairments exclude impairment amounts recorded in other comprehensive income, which comprise non-credit related amounts on securities that are credit impaired but which management does not intend to sell and it is not more likely than not that the company will be required to sell before recovery of the amortized cost basis.

During 2002 and 2003 Ambac recognized investment realized losses of $150,201 relating to its $174,500 investment in asset-backed notes issued by National Century Financial Enterprises, Inc. (“NCFE”). These notes, which were backed by health care receivables and rated triple-A until October 25, 2002, defaulted and NCFE filed for protection under Chapter 11 of the U.S. Bankruptcy Code in November 2002. In connection with a full and final settlement of a lawsuit brought by NCFE bondholders against Credit Suisse Securities LLC, a subsidiary of Ambac Assurance received cash recoveries of $39,978 in the four months ended April 30, 2013. Additionally, $1,441 of other recoveries were received from NCFE in the eight months ended December 31, 2013. These amounts were recorded within gross realized gains on securities.

Since commencement of the Segregated Account Rehabilitation Proceedings, changes in the estimated timing of claim payments have resulted in adverse changes in projected cash flows on certain Ambac-wrapped securities. Such changes in estimated claim payments on Ambac-wrapped securities contributed to net other-than-temporary impairments for the periods presented in the table above. Further changes to estimated claim payments could result in additional other-than-temporary impairment charges in the future. Successor Ambac’s net other-than-temporary impairments relate to the company’s intent to sell certain securities that were in an unrealized loss position as of December 31, 2013. The year ended December 31, 2012 included credit impairments on certain other non-agency RMBS securities. Future changes in our estimated liquidity needs could result in a determination that Ambac no longer has the ability to hold such securities, which could result in additional other-than-temporary impairment charges.

The following table presents a roll-forward of Ambac’s cumulative credit losses on debt securities held as of December 31, 2013 and 2012 for which a portion of an other-than-temporary impairment was recognized in other comprehensive income:

 

     Credit
Impairment
 

Successor Ambac:

  

Balance as of May 1, 2013

   $ —     

Additions for credit impairments recognized on:

  

Securities not previously impaired

     1,185   

Securities previously impaired

     —     

Reductions for credit impairments previously recognized on:

  

Securities that matured or were sold during the period

     (3

Securities that no longer have a portion of other-than-temporary impairment in other comprehensive income because of the company’s intent to sell such securities

     —     
  

 

 

 

Balance as of December 31, 2013

   $ 1,182   
  

 

 

 

Predecessor Ambac:

  

Balance as of January 1, 2013

   $ 183,300   

Additions for credit impairments recognized on:

  

Securities not previously impaired

     —     

Securities previously impaired

     —     

Reductions for credit impairments previously recognized on:

  

Securities that matured or were sold during the period (1)

   $ (183,300
  

 

 

 

Balance as of April 30, 2013

   $ —     
  

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

     Credit
Impairment
 

Predecessor Ambac:

  

Balance as of January 1, 2012

   $ 201,317   

Additions for credit impairments recognized on:

  

Securities not previously impaired

     824   

Securities previously impaired

     5,166   

Reductions for credit impairments previously recognized on:

  

Securities that matured or were sold during the period

     (24,007
  

 

 

 

Balance as of December 31, 2012

   $ 183,300   
  

 

 

 

 

(1) Includes reduction made in connection with Fresh Start, under which the cost basis of all invested assets have been set to fair value as of the Fresh Start Reporting Date. As described in Note 3, adopting Fresh Start results in a new reporting entity with no beginning retained earnings or accumulated deficit. Therefore cumulative credit impairments for Successor Ambac on May 1, 2013 are $0.

Counterparty Collateral, Deposits with Regulators and Other Restrictions:

Ambac routinely pledges and receives collateral related to certain business lines and/or transactions. The following is a description of those arrangements by collateral source:

 

(1) Cash and securities held in Ambac’s investment portfolio —Ambac pledges assets it holds in its investment portfolio to investment agreement and derivative counterparties. Securities pledged to investment agreement counterparties may not then be re-pledged to another entity. Ambac’s counterparties under derivative agreements have the right to pledge or rehypothecate the securities and as such, pledged securities are separately classified on the Consolidated Balance Sheets as “Fixed income securities pledged as collateral, at fair value”.

 

(2) Cash and securities pledged to Ambac under derivative agreements —Ambac may re-pledge securities it holds from certain derivative counterparties to other derivative counterparties in accordance with its rights and obligations under those agreements.

The following table presents (i) the sources of collateral either received from various counterparties where Ambac is permitted to sell or re-pledge the collateral or collateral held directly in the investment portfolio and (ii) how that collateral was pledged to various investment agreement, derivative and repurchase agreement counterparties at December 31, 2013 and December 31, 2012:

 

     Fair Value of
Cash and
Underlying
Securities
     Fair Value of Cash
and Securities
Pledged to
Investment  and
Repurchase Agreement
Counterparties
     Fair Value of
Cash and
Securities
Pledged to
Derivative
Counterparties
 

Successor Ambac – December 31, 2013:

        

Sources of Collateral:

        

Cash and securities pledged directly from the investment portfolio

   $ 497,949       $ 371,723       $ 126,223   

Cash and securities pledged from derivative counterparties

     690        —          —    

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

     Fair Value of
Cash and
Underlying
Securities
     Fair Value of Cash
and Securities
Pledged to
Investment  and
Repurchase Agreement
Counterparties
     Fair Value of
Cash and
Securities
Pledged to
Derivative
Counterparties
 

Predecessor Ambac – December 31, 2012:

        

Sources of Collateral:

        

Cash and securities pledged directly from the investment portfolio

   $ 646,663       $ 375,412       $ 271,251   

Cash and securities pledged from derivative counterparties

     —          —          —    

Securities carried at $6,799 and $6,945 at December 31, 2013 and December 31, 2012, respectively, were deposited by Ambac Assurance and Everspan with governmental authorities or designated custodian banks as required by laws affecting insurance companies.

Securities with fair value of $240,150 and $201,329 at December 31, 2013 and December 31, 2012, respectively, were held by a bankruptcy remote trust to collateralize and fund repayment of debt issued through a re-securitization transaction. The securities may not be sold or repledged by the trust. These assets are held and the secured debt is issued by entities that qualify as VIEs and are consolidated in Ambac’s unaudited consolidated financial statements. Refer to Note 4, Special Purpose Entities, Including Variable Interest Entities for a further description of this transaction.

Guaranteed Securities:

Ambac’s fixed income portfolio includes securities covered by guarantees issued by Ambac Assurance and other financial guarantors (“insured securities”). The published rating agency ratings on these securities reflect the higher of the financial strength rating of the financial guarantor or the rating of the underlying issuer. Rating agencies do not always publish separate underlying ratings (those ratings excluding the insurance by the financial guarantor) because the insurance cannot be legally separated from the underlying security by the insurer. In the event these underlying ratings are not available from the rating agencies, Ambac will assign an internal rating.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The following table represents the fair value, including the value of the financial guarantee, and weighted-average underlying rating, excluding the financial guarantee, of the insured securities at December 31, 2013 and December 31, 2012, respectively:

 

    Municipal
obligations
    Corporate
obligations
    Mortgage
and asset-
backed
securities
    Short-term     Total     Weighted
Average
Underlying
Rating (1)
 

Successor Ambac – December 31, 2013:

           

Ambac Assurance Corporation (2)

  $ 64,596      $ —       $ 1,747,283      $ —       $ 1,811,879        CCC+   

National Public Finance Guarantee Corporation

    532,752        37,642        —         —         570,394        A+   

Assured Guaranty Municipal Corporation

    372,392        77,163        —         —         449,555        A+   

MBIA Insurance Corporation

    —         17,444        —         —         17,444        BBB-   

Assured Guaranty Corporation

    —         —         2,917        —         2,917        D   

Financial Guarantee Insurance Corporation

    —         —         2,869        —         2,869        D   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 969,740      $ 132,249      $ 1,753,069      $ —       $ 2,855,058        BB-   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Predecessor Ambac – December 31, 2012:

           

Ambac Assurance Corporation (2)

  $ 66,270      $ 4,717      $ 1,344,289      $ —       $ 1,415,276        B   

National Public Finance Guarantee Corporation

    720,904        43,010        —         —         763,914        AA-   

Assured Guaranty Municipal Corporation

    448,241        169,245        4,923        —         622,409        A   

MBIA Insurance Corporation

    —         19,733        2,143        —         21,876        BBB-   

Assured Guaranty Corporation

    —         —         14,743        —         14,743        D   

Financial Guarantee Insurance Corporation

    17,599        —         4,182        —         21,781        A-   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 1,253,014      $ 236,705      $ 1,370,280      $ —       $ 2,859,999        BBB-   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Ratings are based on the lower of Standard & Poor’s or Moody’s rating. If unavailable, Ambac’s internal rating is used.
(2) Includes asset-backed securities with a fair value of $50,953 and $45,630 at December 31, 2013 and December 31, 2012, respectively, insured by Ambac UK.

Investment Income:

Net investment income was comprised of the following for the affected periods:

 

    Successor Ambac –
Eight Months Ended
December 31, 2013
    Predecessor Ambac –
Four Months Ended
April 30, 2013
    Predecessor Ambac –
Year Ended
December 31, 2012
 

Fixed income securities

  $ 147,014      $ 118,097      $ 386,385   

Short-term investments

    1,528        677        1,405   

Loans

    306        146        714   

Investment expense

    (5,982     (2,549     (5,602
 

 

 

   

 

 

   

 

 

 

Securities available-for-sale and short-term

    142,866        116,371        382,902   

Other investments

    3,580        369        —    
 

 

 

   

 

 

   

 

 

 

Total net investment income

  $ 146,446      $ 116,740      $ 382,902   
 

 

 

   

 

 

   

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Net investment income from Other investments represents changes in fair value on securities classified as trading or under the fair value option. Successor Ambac gains and (losses) for the eight months ended December 31, 2013 on securities still held at the reporting date was $1,878. Predecessor Ambac gains for the four months ended April 30, 2013 on securities still held at December 31, 2013 were ($131). There were no such investments held during 2012.

12.        DERIVATIVE INSTRUMENTS

The following tables summarize the gross fair values of individual derivative instruments and the impact of legal rights of offset as reported in the Consolidated Balance Sheets as of December 31, 2013 and December 31, 2012.

 

    Gross
Amounts of
Recognized
Assets /
Liabilities
    Gross
Amounts
Offset in the
Consolidated
Balance
Sheet
    Net
Amounts of
Assets /
Liabilities
Presented in
the
Consolidated
Balance
Sheet
    Gross
Amount of
Collateral
Received /
Pledged Not
Offset in the
Consolidated
Balance Sheet
    Net Amount  

Successor Ambac—December 31, 2013:

         

Derivative Assets:

         

Interest rate swaps

  $ 132,250      $ 56,876      $ 75,374      $ —       $ 75,374   

Futures contracts

    2,337        —         2,337        690       1,647   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total non-VIE derivative assets

  $ 134,587      $ 56,876      $ 77,711      $ 690     $ 77,021   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Derivative Liabilities:

         

Credit derivatives

  $ 94,322      $ —       $ 94,322      $ —       $ 94,322   

Interest rate swaps

    216,287        56,876        159,411        42,555        116,856   

Other contracts

    165        —         165        —         165   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total non-VIE derivative liabilities

  $ 310,774      $ 56,876      $ 253,898      $ 42,555      $ 211,343   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Variable Interest Entities

         

Interest rate swaps

  $ 1,680,834      $ —       $ 1,680,834      $ —       $ 1,680,834   

Currency swaps

    91,472        —         91,472        —         91,472   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total VIE derivative liabilities

  $ 1,772,306      $ —       $ 1,772,306      $ —       $ 1,722,306   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

    Gross
Amounts of
Recognized
Assets /
Liabilities
    Gross
Amounts
Offset in the
Consolidated
Balance
Sheet
    Net Amounts
of Assets /
Liabilities
Presented in
the
Consolidated
Balance
Sheet
    Gross
Amount of
Collateral
Received /
Pledged Not
Offset in  the
Consolidated
Balance Sheet
    Net Amount  

Predecessor Ambac—December 31, 2012:

         

Derivative Assets:

         

Interest rate swaps

  $ 198,117      $ 73,264      $ 124,853      $ —       $ 124,853   

Futures contracts

    1,253        —         1,253        —         1,253   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total non-VIE derivative assets

  $ 199,370      $ 73,264      $ 126,106      $ —       $ 126,106   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Derivative Liabilities:

         

Credit derivatives

  $ 213,585      $ —       $ 213,585      $ —       $ 213,585   

Interest rate swaps

    390,774        73,264        317,510        180,113        137,397   

Other contracts

    220        —         220        —         220   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total non-VIE derivative liabilities

  $ 604,579      $ 73,264      $ 531,315      $ 180,113      $ 351,202   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Variable Interest Entities

         

Interest rate swaps

  $ 2,131,315      $ —       $ 2,131,315      $ —       $ 2,131,315   

Currency swaps

    90,466        —         90,466        —         90,466   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total VIE derivative liabilities

  $ 2,221,781      $ —       $ 2,221,781      $ —       $ 2,221,781   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Amounts recognized for the right to reclaim cash collateral or the obligation to return cash collateral are not offset against fair value amounts recognized for derivative instruments on the Consolidated Balance Sheets. The amounts representing the right to reclaim cash collateral and posted margin, recorded in “Other assets” were

 

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$3,040 and $5,472 as of December 31, 2013 and December 31, 2012, respectively. The amounts representing the obligation to return cash collateral recorded in “Other liabilities” were $690 and $0 as of December 31, 2013 and December 31, 2012.

 

   

Location of

Gain or (Loss) Recognized
in Consolidated Statement
of Total Comprehensive
Income

  Successor Ambac     Predecessor Ambac  
    Amount of
Gain or (Loss)
Recognized in

Consolidated
Statement of Total
Comprehensive
Income – Eight
Months Ended
December 31, 2013
    Amount of
Gain or (Loss)
Recognized in
Consolidated
Statement of
Total
Comprehensive
Income – Four
Months Ended
April 30, 2013
    Amount of
Gain or (Loss)
Recognized in
Consolidated
Statement of Total
Comprehensive
Income – Year
Ended
December 31, 2012
 

Financial Guarantee:

       

Credit derivatives

  Net change in fair value of credit derivatives   $ 192,869      $ (60,384   $ (9,219
   

 

 

   

 

 

   

 

 

 

Financial Services derivatives products:

       

Interest rate swaps

  Derivative products     104,114        (30,622     (111,396

Currency swaps

  Derivative products     —         —         807   

Futures contracts

  Derivative products     10,925        (3,133     (14,864

Other derivatives

  Derivative products     (268     20        449   
   

 

 

   

 

 

   

 

 

 

Total Financial Services derivative products

      114,771        (33,735     (125,004
   

 

 

   

 

 

   

 

 

 

Call options on long-term debt

  Other income     —         —         100,710   
   

 

 

   

 

 

   

 

 

 

Variable Interest Entities:

       

Currency swaps

  (Loss) income on variable interest entities     (890     (116     (27,388

Interest rate swaps

  (Loss) income on variable interest entities     495,712        (203,620     (107,341
   

 

 

   

 

 

   

 

 

 

Total Variable Interest Entities

      494,822        (203,736     (134,729
   

 

 

   

 

 

   

 

 

 

Total derivative contracts

    $ 802,462      $ (297,855   $ (168,242
   

 

 

   

 

 

   

 

 

 

Financial Guarantee Credit Derivatives:

Credit derivatives, which are privately negotiated contracts, provide the counterparty with credit protection against the occurrence of a specific event such as a payment default or bankruptcy relating to an underlying obligation. Upon a credit event, Ambac is required to make payments equal to the difference between the scheduled debt service payment and the actual payment made by the issuer. Substantially all of Ambac’s credit derivative contracts relate to structured finance transactions. Credit derivatives issued are insured by Ambac Assurance. None of our outstanding credit derivative transactions at December 31, 2013 include ratings based collateral-posting triggers or otherwise require Ambac to post collateral regardless of Ambac’s ratings or the size of the mark to market exposure to Ambac.

The majority of our credit derivatives were written on a “pay-as-you-go” basis. Similar to an insurance policy execution, pay-as-you-go provides that Ambac pays interest shortfalls on the referenced transaction as they are incurred on each scheduled payment date, but only pays principal shortfalls upon the earlier of (i) the date on which the assets designated to fund the referenced obligation have been disposed of and (ii) the legal final maturity date of the referenced obligation. The last transaction that was not “pay-as-you-go” terminated in July 2013.

Ambac maintains internal credit ratings on its guaranteed obligations, including credit derivative contracts, solely to indicate management’s view of the underlying credit quality of the guaranteed obligations. Independent

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

rating agencies may have assigned different ratings on the credits in Ambac’s portfolio than Ambac’s internal ratings. The following tables summarize the gross principal notional outstanding for CDS contracts, by Ambac rating, for each major category as of December 31, 2013 and December 31, 2012:

Successor Ambac—December 31, 2013

 

Ambac Rating

   CLO      Other      Total  

AAA

   $ —         $ 24,034       $ 24,034   

AA

     1,209,071         203,025         1,412,096   

A

     128,666         107,251         235,917   

BBB (1)

     —          826,175         826,175   

Below investment grade (2)

     —          277,881         277,881   
  

 

 

    

 

 

    

 

 

 
   $ 1,337,737       $ 1,438,366       $ 2,776,103   
  

 

 

    

 

 

    

 

 

 

Predecessor Ambac—December 31, 2012

 

Ambac Rating

   CLO      Other      Total  

AAA

   $ 166,200       $ 512,283       $ 678,483   

AA

     4,676,362         1,278,756         5,955,118   

A

     1,313,205         2,370,988         3,684,193   

BBB (1)

     —          672,293         672,293   

Below investment grade (2)

     —          291,690         291,690   
  

 

 

    

 

 

    

 

 

 
   $ 6,155,767       $ 5,126,010       $ 11,281,777   
  

 

 

    

 

 

    

 

 

 

 

(1) BBB internal rating reflects bonds which are of medium grade credit quality with adequate capacity to pay interest and repay principal. Certain protective elements and margins may weaken under adverse economic conditions and changing circumstances. These bonds are more likely than higher rated bonds to exhibit unreliable protection levels over all cycles.
(2) Below investment grade (“BIG”) internal ratings reflect bonds which are of speculative grade credit quality with the adequacy of future margin levels for payment of interest and repayment of principal potentially adversely affected by major ongoing uncertainties or exposure to adverse conditions.

The tables below summarize information by major category as of December 31, 2013 and December 31, 2012:

Successor Ambac—December 31, 2013 

 

     CLO     Other     Total  

Number of CDS transactions

     7        13        20   

Remaining expected weighted-average life of obligations (in years)

     2.1        5.0        3.6   

Gross principal notional outstanding

   $ 1,337,737      $ 1,438,366      $ 2,776,103   

Net derivative liabilities at fair value

   $ (7,993   $ (86,329   $ (94,322

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

Predecessor Ambac—December 31, 2012

 

     CLO     Other     Total  

Number of CDS transactions

     30        21        51   

Remaining expected weighted-average life of obligations (in years)

     2.2        5.2        3.6   

Gross principal notional outstanding

   $ 6,155,767      $ 5,126,010      $ 11,281,777   

Net derivative liabilities at fair value

   $ (34,645   $ (178,940   $ (213,585

The maximum potential amount of future payments under Ambac’s credit derivative contracts written on a “pay-as-you-go” basis is generally the gross principal notional outstanding amount included in the above table plus future interest payments payable by the derivative reference obligations. Since Ambac’s credit derivatives typically reference obligations of or assets held by SPEs that meet the definition of a VIE, the amount of maximum potential future payments for credit derivatives is included in the table in Note 4, Special Purpose Entities, Including Variable Interest Entities.

Changes in fair value of Ambac’s credit derivative contracts are accounted for at fair value since they do not qualify for the financial guarantee scope exception under the Derivatives and Hedging Topic of the ASC. Changes in fair value are recorded in “Net change in fair value of credit derivatives” on the Consolidated Statements of Total Comprehensive Income. Although CDS contracts are accounted for at fair value, they are surveilled similar to non-derivative financial guarantee contracts. As with financial guarantee insurance policies, Ambac’s surveillance group tracks credit migration of CDS contracts’ reference obligations from period to period.

Adversely classified credits are assigned risk classifications by the surveillance group. As of December 31, 2013, there are four CDS contracts on Ambac’s adversely classified credit listing, with a net derivative liability fair value of $62,296 and gross notional principal outstanding of $277,881. As of December 31, 2012, there were four CDS contracts on Ambac’s adversely classified credit listing, with a net derivative liability fair value of $67,219 and total notional principal outstanding of $291,690.

Financial Services Derivative Products:

Ambac, through its subsidiary Ambac Financial Services (“AFS”), provides interest rate and currency swaps to states, municipalities and their authorities, asset-backed issuers and other entities in connection with their financings. AFS manages its interest rate swaps business with the goal of retaining some basis risk and excess interest rate sensitivity as an economic hedge against the effects of rising interest rates elsewhere in the Company, including on Ambac’s financial guarantee exposures. As of December 31, 2013 and December 31, 2012 the notional amounts of AFS’s trading derivative products are as follows:

 

     Notional  

Type of derivative

   Successor Ambac –
December 31, 2013
     Predecessor Ambac –
December 31, 2012
 

Interest rate swaps—receive-fixed/pay-variable

   $ 697,837       $ 727,926   

Interest rate swaps—pay-fixed/receive-variable

     1,540,976         1,657,382   

Interest rate swaps—basis swaps

     146,705         161,690   

Futures contracts

     100,000         161,500   

Other contracts

     75,650         75,651   

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Derivatives of Consolidated Variable Interest Entities

Certain VIEs consolidated under the Consolidation Topic of the ASC entered into derivative contracts to meet specified purposes within the securitization structure. The notional for VIE derivatives outstanding as of December 31, 2013 and December 31, 2012 are as follows:

 

Type of VIE derivative

   Notional  
   Successor Ambac –
December 31, 2013
     Predecessor Ambac –
December 31, 2012
 

Interest rate swaps—receive-fixed/pay-variable

   $ 1,818,118       $ 1,782,999   

Interest rate swaps—pay-fixed/receive-variable

     3,350,714         4,707,454   

Currency swaps

     770,319         755,438   

Credit derivatives

     20,130         20,885   

Call Option on Long-Term Debt

Ambac Assurance had certain contractual options to repurchase $500,000 of its surplus notes at a discount to their par value which were considered stand-alone derivatives. Surplus notes are classified under Long-term debt on the Consolidated Balance Sheets. These call options were exercised in June 2012. Gains from the change in fair value of the call options were recognized within Other income in the Consolidated Statements of Total Comprehensive Income in the amount of $100,710 for the year ended December 31, 2012.

Contingent Features in Derivatives Related to Ambac Credit Risk

Ambac’s interest rate swaps with professional swap-dealer counterparties and certain front-end counterparties are generally executed under standardized derivative documents including collateral support and master netting agreements. Under these agreements, Ambac is required to post collateral in the event net unrealized losses exceed predetermined threshold levels. Additionally, given that Ambac Assurance is no longer rated by an independent rating agency, counterparties have the right to terminate the swap positions.

As of December 31, 2013 and 2012, the net liability fair value of all derivative instruments with contingent features linked to Ambac’s own credit risk was $42,555 and $180,113, respectively, related to which Ambac had posted assets as collateral with a fair value of $126,223 and $265,779, respectively. All such ratings-based contingent features have been triggered as requiring maximum collateral levels to be posted by Ambac while preserving counterparties’ rights to terminate the contracts. Assuming all contracts terminated on December 31, 2013, settlement of collateral balances and net derivative liabilities would result in a net receipt of cash and/or securities by Ambac. If counterparties elect to exercise their right to terminate, the actual termination payment amounts will be determined in accordance with derivative contract terms, which may result in amounts that differ from market values as reported in Ambac’s financial statements.

13.        LOANS

Loans had been extended: (i) by VIEs which are consolidated by Ambac under ASC Topic 810 as a result of Ambac’s financial guarantees of the VIEs’ note liabilities and/or assets, and (ii) to certain institutions in connection with various transactions.

Loans by consolidated VIEs are generally carried at fair value on the Consolidated Balance Sheets. See Note 4 for further information about VIEs for which the assets and liabilities are carried at fair value. VIE loans that

 

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had not been carried at fair value have been adjusted to fair value for fresh start reporting. Subsequent to the Fresh Start Reporting Date, we have elected to continue accounting for these VIEs at fair value under the fair value option in accordance with the Financial Instruments Topic of the ASC. VIE loans carried at cost had a principal balance of $209,807 at December 31, 2012. Interest rates on these loans ranged from 5.33% to 5.42% and had a stated maturity of 2047 at December 31, 2012. Collectability of these loans is evaluated individually on an ongoing basis in connection with the surveillance of the related financial guarantee transactions. No loan has been considered impaired and as such no loan impairments have been recorded as of December 31, 2013 or 2012.

Other loans had a combined outstanding principal balance of $6,238 and $9,203 at December 31, 2013 and 2012, respectively. Interest rates on these loans were 4.62% at December 31, 2013 and ranged from 4.67% to 7.00% at December 31, 2012. The maturity dates of these loans were June 2026 as of December 31, 2013 and ranged from December 2013 to June 2026 as of December 31, 2012. Collectability of these loans is evaluated individually on an ongoing basis; no loan has been considered impaired and as such no loan impairments have been recorded as of December 31, 2013 or 2012.

14.        LONG-TERM DEBT

The carrying value of long-term debt was as follows:

 

     Successor Ambac –
December 31, 2013
     Predecessor Ambac –
December 31, 2012
 

Ambac Assurance Corporation:

     

5.1% surplus notes, general account, due 2020

   $ 909,186       $ 139,476   

5.1% surplus notes, segregated account, due 2020

     39,797         6,502   

5.1% junior surplus notes, segregated account, due 2020

     14,195         4,192   
  

 

 

    

 

 

 

Ambac Assurance long-term debt

   $ 963,178       $ 150,170   
  

 

 

    

 

 

 

Variable Interest Entities:

     

Total long-term debt

   $ 14,091,753       $ 15,436,008   
  

 

 

    

 

 

 

Ambac Assurance Surplus Notes with a par amount of $1,210,821 at December 31, 2013 and 2012 are reported in long-term debt on the Consolidated Balance Sheet and have a scheduled maturity of June 7, 2020. These surplus notes were issued in connection with the Settlement Agreement, dated as of June 7, 2010, by and among Ambac Assurance, Ambac Credit Products LLC (“ACP”), Ambac and counterparties to credit default swaps with ACP that were guaranteed by Ambac Assurance, and were recorded at their fair value at the date of issuance. Since issuance, Predecessor Ambac had accreted the discount into earnings using the effective interest method, based on an imputed interest rate of 53.9% at the date of issuance. The carrying values of these surplus notes were adjusted to fair value as of the Fresh Start Reporting Date. Subsequent to the Fresh Start Reporting Date, Successor Ambac has accreted the discount based on an imputed interest rate of 10.5%. All payments of principal and interest on the Surplus Notes are subject to the prior approval of the OCI. If the OCI does not approve the payment of interest on the Ambac Assurance Surplus Notes, such interest will accrue and compound annually until paid. OCI disapproved of the requests of Ambac Assurance to pay interest on all outstanding Surplus Notes issued by Ambac on their respective scheduled interest payment dates since their issuance. At the time of issuance, Ambac Assurance entered into call option agreements to repurchase, at significant discounts to par, surplus notes with an aggregate par amount of $939,179. Certain of these call options were free-standing derivatives for accounting purposes and were carried at fair value as assets on the Consolidated Balance Sheets. In June 2012, Ambac Assurance exercised certain of these options and repurchased surplus notes with total par value of $789,179 for an aggregate cash payment of $188,446 pursuant to such call option agreements. The

 

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acquisition of surplus notes pursuant to such call option agreements had been approved by OCI and by the Rehabilitator, whose approval was conditioned upon the approval by the Rehabilitation Court, which was granted on June 4, 2012. Ambac Assurance had sought approval from OCI and the Rehabilitator to repurchase an additional $150,000 of Ambac Assurance Surplus Notes pursuant to a third call option agreement entered into with respect to such surplus notes, but OCI and the Rehabilitator declined to approve the repurchase. The carrying value of extinguished surplus notes and accrued interest less the fair value of the free-standing derivatives were below the call option exercise prices and, accordingly, for the year ended December 31, 2012, Ambac recognized a realized loss of $177,745. The remaining options to acquire surplus notes have expired.

The Segregated Account Surplus Notes, with a par amount of $53,000 at December 31, 2013 and 2012, are reported in long-term debt on the Consolidated Balance Sheets and have a scheduled maturity of June 7, 2020. These surplus notes were recorded at their fair value at the date of issuance. Since issuance, Predecessor Ambac had accreted the discount into earnings using the effective interest method, based on an imputed interest rate of 52.8% at the date of issuance. The carrying values of these surplus notes were adjusted to estimated fair value as of the Fresh Start Reporting Date. Subsequent to the Fresh Start Reporting Date, Successor Ambac has accreted the discount based on an imputed interest rate of 10.5%. All payments of principal and interest on the Segregated Account Surplus Notes are subject to the prior approval of the OCI. If the OCI does not approve the payment of interest on the Segregated Account Surplus Notes, such interest will accrue and compound annually until paid. OCI disapproved of the requests of the Rehabilitator of the Segregated Account, acting for and on behalf of the Segregated Account, to pay interest on all outstanding Surplus Notes on their respective scheduled interest payment dates since their issuance.

The Segregated Account Junior Surplus Notes, with a par value of $28,039 and $36,082 at December 31, 2013 and 2012, respectively, are reported in long-term debt on the Consolidated Balance Sheets and have a scheduled maturity of June 7, 2020. These surplus notes were recorded at their fair value at the date of issuance. Since issuance, Predecessor Ambac had accreted the discount into earnings using the effective interest method, based on an imputed interest rate of 58.3% at the date of issuance. The carrying values of these surplus notes were adjusted to estimated fair value as of the Fresh Start Reporting Date. Subsequent to the Fresh Start Reporting Date, Successor Ambac has accreted the discount based on an imputed interest rate of 19.5%. These junior surplus notes were issued in connection with a settlement agreement (the “OSS Settlement Agreement”) entered into among Ambac, Ambac Assurance, the Segregated Account and One State Street, LLC (“OSS”) with respect to the termination of Ambac’s office lease with OSS. The outstanding principal amount of one such note shall, according to its terms, be reduced based on (i) rents paid after the initial term of the lease entered into between OSS and Ambac Assurance as part of such settlement and (ii) the value of any distribution that OSS receives on account of its allowed claim in Ambac’s chapter 11 case, determined as set forth in the OSS Settlement Agreement. Pursuant to the OSS Settlement Agreement, $8,043 par value of the Segregated Account Junior Surplus Notes were reduced on the Effective Date. No payment of interest on or principal of the Segregated Account Junior Surplus Notes may be made until all existing and future indebtedness of the Segregated Account, including Segregated Account Surplus Notes, policy claims and claims having statutory priority have been paid in full. All payments of principal and interest on the Junior Segregated Account Surplus Notes are subject to the prior approval of the OCI. If the OCI does not approve the payment of interest on the Segregated Account Junior Surplus Notes, such interest will accrue and compound annually until paid. OCI disapproved of the requests of the Rehabilitator of the Segregated Account, acting for and on behalf of the Segregated Account, to pay interest on all outstanding Surplus Notes issued by the Segregated Account on their respective scheduled interest payment dates since their issuance.

The variable interest entity notes were issued by consolidated VIEs. Generally, Ambac is the primary beneficiary of the VIEs as a result of providing financial guarantees on the variable interest notes. Consequently,

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Ambac has consolidated these variable interest entity notes and all other assets and liabilities of the VIEs. Ambac is not primarily liable for the debt obligations of these entities. Ambac would only be required to make payments on these debt obligations in the event that the issuer defaults on any principal or interest due. The total unpaid principal amount of outstanding long-term debt associated with VIEs consolidated as a result of the financial guarantee provided by Ambac was $14,251,771 and $15,684,925 as of December 31, 2013 and December 31, 2012, respectively. The range of final maturity dates of the outstanding long-term debt associated with these VIEs is February 2015 to December 2047 as of December 31, 2013, and February 2013 to December 2047 as of December 31, 2012. As of December 31, 2013 and 2012, the interest rates on these VIEs’ long-term debt ranged from 0.50% to 13.00% and from 0.39% to 12.63%, respectively. At December 31, 2013 and 2012 VIE notes outstanding also included certificates with a par value of $0 and $14,588, respectively, issued through a secured borrowing transaction. Interest on the secured borrowing was payable monthly at an annual rate of 6.65%. The effective interest rate on the secured borrowing was 8.97%. Under the transaction, certain RMBS securities owned and guaranteed by Ambac Assurance were deposited into a bankruptcy remote trust to collateralize and fund repayment of the debt. These securities are included in Invested assets on the Consolidated Balance Sheets and had a current par outstanding of $233,484 and $266,848 as of December 31, 2013 and 2012, respectively, and a fair value of $240,150 and $201,329 as of December 31, 2013 and 2012, respectively. Interest and principal on the secured borrowing was payable from the first non-insurance proceeds from these pledged RMBS securities. Please refer to Note 4 for a detailed description of the VIEs. Final maturities of VIE long-term debt for each of the five years following December 31, 2013 are as follows: 2014—$0; 2015—$598,455; 2016—$0; 2017—$0; 2018—$173,206.

15.        OBLIGATIONS UNDER INVESTMENT AGREEMENTS

Obligations under investment agreements, including those structured in the form of repurchase agreements, are recorded on a settlement-date basis. Certain investment agreements have contractual provisions that allow our counterparty the flexibility to withdraw funds prior to the legal maturity date. Amounts included in the table below are based on the expected optional draw date. As of December 31, 2013 and 2012, the contractual interest rates for these agreements, which include both fixed and variable, ranged from 0.23% to 6.04% and from 0.33% to 6.04%, respectively. As of December 31, 2013 and 2012, the carrying value of obligations under investment and investment repurchase agreements, including unamortized discounts or premiums to principal, were $359,070 and $362,017, respectively.

Principal due under investment and investment repurchase agreements, based on the expected optional draw date, in each of the next five years ending December 31, and the periods thereafter, are as follows:

 

     Principal
Amount
 

2014

   $ —     

2015

     44,374  

2016

     190,051   

2017

     124,308   

2018

     —     

All later years

     —     
  

 

 

 
   $ 358,733   
  

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

16.        INCOME TAXES

Ambac files a consolidated Federal income tax return with its subsidiaries. Ambac and its subsidiaries also file separate or combined income tax returns in various states, local and foreign jurisdictions. The following are the major jurisdictions in which Ambac and its affiliates operate and the earliest tax years subject to examination:

 

Jurisdiction

   Tax Year  

United States

     2010   

New York State

     2008   

New York City

     2011   

United Kingdom

     2006   

Italy

     2007   

As of December 31, 2013 Ambac had loss carryforwards totaling $6,220,353. This includes carryforwards of $605,441 relating to U.S. capital losses, $297,919 of Ambac UK loss carryforwards, and an ordinary U. S. federal net operating tax carryforward of approximately $5,316,993, which, if not utilized, will begin expiring in 2029, and will fully expire in 2034.

On April 3, 2013, Ambac, the Creditors’ Committee, Ambac Assurance, the Segregated Account, OCI and the Rehabilitator submitted to the IRS and the Department of Justice, Tax Division, a letter which modified and supplemented the terms of the Offer Letter to settle a dispute with the IRS and related proceedings. On April 4, 2013, the Department of Justice, Tax Division, accepted the Offer Letter as supplemented and modified (the “IRS Settlement”). On April 8, 2013, Ambac filed a motion with the Bankruptcy Court seeking approval of the terms of the IRS Settlement. On April 29, 2013, the Bankruptcy Court approved in all respects the IRS Settlement, which settled the IRS claim, and authorized and directed Ambac, in part, to effectuate the IRS Settlement and to take any other actions as may be reasonably necessary to consummate the settlement, including, without limitation, the execution of a closing agreement with the IRS, and entry of a stipulation dismissing the IRS adversary proceeding with prejudice. On April 30, 2013, Ambac paid to the United States Department of the Treasury $1,900 and the Segregated Account paid the United States Department of Treasury $100,000. Upon confirmation of payment, Ambac and the Internal Revenue Service entered into a closing agreement on April 30, 2013 which resolved with finality all federal income tax liability of Ambac for the 2003 through 2009 tax years and resolved with finality the federal income tax liability of Ambac for the 2010 tax year solely with respect to items of income, gain, deductions or loss related to the CDS contracts. Ambac relinquished its claim to all net operating loss carry forwards resulting from losses on credit default swap contracts arising on or before December 31, 2010 to the extent such net operating loss carry forwards exceed $3,400,000. The exact amount of the loss carryforward relinquishment was $1,059,988. The closing agreement does not resolve the tax treatment of CDS contracts for tax years subsequent to 2010.

Upon emergence from bankruptcy, approximately $816,380 of the Net Operating Loss (“NOL”) was reduced for cancellation of indebtedness income and reduction of interest expense pursuant to IRC Section 382(l)(5).

 

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(Dollar Amounts in Thousands, Except Share Amounts)

 

The tax effects of temporary differences that give rise to significant portions of the deferred tax liabilities and deferred tax assets at December 31, 2013 and December 31, 2012 are presented below:

 

     Successor Ambac –
December 31, 2013
     Predecessor Ambac –
December 31, 2012
 

Deferred tax liabilities:

     

Insurance intangible

   $ 559,288       $ —    

Variable interest entities

     131,137         22,015   

Investments

     168,653         —    

Deferred acquisition costs

     —          57,262   

Unearned premiums and credit fees

     38,826         22,714   

Other

     2,221         17,251   
  

 

 

    

 

 

 

Total deferred tax liabilities

     900,125         119,242   
  

 

 

    

 

 

 

Deferred tax assets:

     

Unrealized losses & impairments on investments

     —          12,605   

Net operating loss and capital carryforward

     2,177,029         2,857,926   

Loss reserves

     634,692         490,677   

Compensation

     8,724         7,184   

AMT Credits

     4,269         —    

Other

     58,581         5,687   
  

 

 

    

 

 

 

Sub-total deferred tax assets

     2,883,295         3,374,079   

Valuation allowance

     1,985,369         3,256,423   
  

 

 

    

 

 

 

Total deferred tax assets

     897,926         117,656   
  

 

 

    

 

 

 

Net deferred tax liability

   $ 2,199       $ 1,586   
  

 

 

    

 

 

 

In accordance with the Income Tax Topic of the ASC, a valuation allowance is recognized if, based on the weight of available evidence, it is more-likely-than-not that some or all of the deferred tax asset will not be realized. Recent cumulative losses are a significant piece of negative evidence in assessing whether a valuation allowance is required. As a result of Ambac’s history of operating losses as well as the risks and uncertainties associated with future operating results, management believes it is more likely than not that the Company will not generate sufficient taxable income to recover the deferred tax operating asset and therefore has a full valuation allowance.

Ambac’s provision for income taxes charged to income from continuing operations is comprised of the following:

 

     Successor Ambac      Predecessor Ambac  
     For the Eight Months Ended
December 31, 2013
     For the Four Months Ended
April 30, 2013
    For the Year Ended
December 31, 2012
 

Current taxes

   $         6,984       $         761      $         1,263   

Deferred taxes

     530         (6     1,586   
  

 

 

    

 

 

   

 

 

 
   $ 7,514       $ 755      $ 2,849   
  

 

 

    

 

 

   

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

The total effect of income taxes on net income and stockholders’ equity for the years ended December 31, 2013 and 2012 is as follows:

 

     Successor Ambac      Predecessor Ambac  
     For the Eight Months Ended
December 31, 2013
     For the Four Months Ended
April 30, 2013
    For the Year Ended
December 31, 2012
 

Total income taxes charged to net income

   $         7,514       $ 755      $ 2,849   

Income taxes charged (credited) to stockholders’ equity:

         

Unrealized gains (losses) on investment securities

     284         (204,145     18,448   

Valuation Allowance to Equity

     (284      204,145        (18,448
  

 

 

    

 

 

   

 

 

 

Other

     —          —         —    
  

 

 

    

 

 

   

 

 

 

Total charged to stockholders’ equity:

     —           —         —    
  

 

 

    

 

 

   

 

 

 

Total effect of income taxes

   $ 7,514       $ 755      $ 2,849   
  

 

 

    

 

 

   

 

 

 

The tax provisions in the accompanying Consolidated Statements of Total Comprehensive Loss reflect effective tax rates differing from prevailing Federal corporate income tax rates. The following is a reconciliation of these differences:

 

     Successor Ambac      Predecessor Ambac  
     For the Eight Months Ended
December 31, 2013
     For the Four Months  Ended
April 30, 2013
     For the Year Ended
December 31, 2012
 
     $      %      $      %      $      %  

Tax on income from continuing operations at statutory rate

   $ 179,311         35.0%       $ 1,171,812         35.0%       ($ 89,777)         35.0%   

Changes in expected tax resulting from:

                   

Reorganization income

     —           0.0%         (712,581)         (21.3)%         —           —  %   

Tax bankruptcy adjustments

     —           0.0%         285,734         8.5%         —           —  %   

IRS Settlement

     —           0.0%         370,996         11.1%         —           —  %   

Tax-exempt interest

     (11,988)         (2.3)%         (4,996)         (0.1)%         (17,795)         6.9%   

Valuation allowance

     (160,064)         (31.2)%         (1,110,230)         (33.2)%         107,502         (41.9)%   

Net addition to (release of) tax reserves

     —           —  %         —           —  %         —           —  %   

Other, net

     255         0.0%         20         0.0%         2,919         (1.1)%   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Tax expense on income from continuing operations

   $ 7,514         1.5%       $ 755         —  %       $ 2,849         (1.1)%   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

A reconciliation of the beginning and ending amount of unrecognized tax benefits for 2013 and 2012 is as follows:

 

     Successor Ambac            Predecessor Ambac  
     For the Eight
Months Ended
December 31, 2013
           For the
Four
Months
Ended
April 30,
2013
    For the Year
Ended
December 31,
2012
 

Balance at January 1,

   $ —             $ 96,900      $ 96,900   

Increases related to prior year tax positions

     —               —          —     

Decreases related to prior year tax positions (1)

     —               (96,900     —     
  

 

 

        

 

 

   

 

 

 

Balance at December 31,

     —             $ —        $ 96,900   
  

 

 

        

 

 

   

 

 

 

 

(1) Amount paid in connection with IRS settlement as noted above.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Included in these balances at December 31, 2013, April 30, 2013 and December 31, 2012 are $0, $0 and $96,900, respectively, of unrecognized tax benefits that, if recognized, would affect the effective tax rate. During the Successor period from May 1 to December 31, 2013, the Predecessor period January 1 to April 30, 2013 and December 31, 2012, Ambac recognized interest of approximately $0, $0 and $0, respectively. Ambac had approximately $0, $0 and $0 for the payment of interest accrued at December 31, 2013, April 30, 2013 and December 31, 2012, respectively.

Pursuant to the Amended TSA, to the extent Ambac Assurance generates taxable income after September 30, 2011, which is offset with NOLs (or the proportionate amount of AMT NOL (as defined below)), it is obligated to make payments (“Tolling Payments”), subject to certain credits, to Ambac in accordance with the following NOL usage table, where the “Applicable Percentage” is applied to the aggregate amount of federal income tax liability that would have been paid if the “Allocated NOLs” were not available:

NOL Usage Table

 

NOL Usage
Tier

 

Allocated NOLs

   Applicable
Percentage
 

A

  The first $479,000,000      15

B

  The next $1,057,000,000 after Tier A      40

C

  The next $1,057,000,000 Tier B      10

D

  The next $1,057,000,000 after Tier C      15

To the extent Ambac Assurance utilizes Allocated NOLs generated prior to September 30, 2011 greater than $3,650,000,000 it is obligated to pay Ambac 25% of the federal income tax liability that would have been paid if the NOLs were not available.

For the period from September 30, 2011 through December 31, 2013, Ambac Assurance has generated taxable losses of approximately $270,321. Future taxable income shall be offset against this amount prior to payments under the NOL usage table above.

The NOL allocable to AFG as of December 31, 2013 is $1,396,673.

17.        EMPLOYMENT BENEFIT PLANS

Postretirement Health Care and Other Benefits:

Ambac provides postretirement and postemployment benefits, including health and life benefits covering certain employees who meet certain age and service requirements. None of the plans are currently funded. Postretirement and postemployment benefits expense was $3,445 and $2,099 in 2013 and 2012, respectively.

Effective August 1, 2005, new employees were not eligible for postretirement benefits. In 2013, post retirement benefits offered to retirees was amended such that Ambac would no longer sponsor a health plan beginning in 2014. This requires retirees to purchase their own insurance policy with a portion of their premium being reimbursed by Ambac. The unfunded accumulated postretirement benefit obligation was $9,374 as of December 31, 2013. The assumed health care cost trend rates range from 8.5% in 2013, decreasing ratably to 5% in 2021. Increasing the assumed health care cost trend rate by one percentage point in each future year would increase the accumulated postretirement benefit obligation at December 31, 2013, by $1,712 and the 2013 benefit expense by $536. Decreasing the assumed health care cost trend rate by one percentage point in each future year

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

would decrease the accumulated postretirement benefit obligation at December 31, 2013 by $1,323 and the 2013 benefit expense by $399.

The following table sets forth projected benefit payments from Ambac’s postretirement plan over the next ten years for current retirees:

 

     Amount  

2014

     299   

2015

     327   

2016

     339   

2017

     337   

2018

     358   

All later years

     2,141   
  

 

 

 
   $ 3,801   
  

 

 

 

The discount rate used in determining the projected benefit obligations for the postretirement plan is selected by reference to the year-end Moody’s corporate AA rate, as well as other high-quality indices with similar duration to that of the benefit plans. The rate used for the projected plan benefit obligations at the measurement date for December 31, 2013 and 2012 was 4.75% and 4.00%, respectively.

Savings Incentive Plan:

Substantially all employees of Ambac are covered by a defined contribution plan (the “Savings Incentive Plan”). Ambac makes employer matching contributions equal 100% of the employees’ contributions, up to 3% of such participants’ base compensation plus 50% of contributions to an additional 2% of base compensation, subject to limits set by the Internal Revenue Code. The total cost of the Savings Incentive Plan was $1,130 and $1,058 in 2013 and 2012, respectively.

Stock Compensation:

Employees, directors and consultants of Ambac may be eligible to participate in Ambac’s 2013 Incentive Compensation Plan (“2013 Plan”) subject to the discretion of the compensation committee of Ambac’s Board of Directors. The 2013 Plan provides for incentives and rewards that are valued or determined by reference to Ambac common stock as traded on the NASDAQ exchange. There are 4,000,000 shares of Ambac’s common stock authorized for awards under the 2013 Plan of which 3,779,146 shares are available for future grant.

Employees of Ambac previously participated in Ambac Financial Group Inc.’s 1997 Equity Plan, which provided for the granting of stock options, stock appreciation rights, restricted stock units, performance units and other awards that were valued or determined by reference to its common stock. The 1997 Equity Plan was cancelled upon Ambac’s emergence from bankruptcy in 2013. No stock grants were made under the 1997 Equity Plan in 2013 or 2012.

Stock Options:

Stock options were awarded to directors under the 2013 Plan that will vest on April 30, 2014 and have a term of seven years from the grant date. Stock option awards to directors provide for accelerated vesting upon change in control, death or disability, or involuntary removal other than for cause (not including removal pursuant to a shareholder vote at a regularly scheduled annual meeting of shareholders). Upon voluntary resignation, the options shall vest as of the date of such resignation in an amount equal to the number of then

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

outstanding options multiplied by a fraction, the numerator of which shall be the number of calendar days which have lapsed since the grant date and the denominator of which shall be the number of calendar days from the grant date to the one-year anniversary of the grant date. No stock options have been awarded to employees or consultants under the 2013 Plan.

The Black-Scholes-Merton model was used to estimate the fair value of the service condition based stock options on the grant date. The assumptions for the 2013 stock option grant are as follows:

 

     2013  

Risk-free interest rate

     0.963

Expected volatility

     50.2

Dividend yield

     0.0

Expected life

     3.33 years   

The expected volatility is based on the implied volatilities from traded options on Ambac’s stock, the historical volatility of Ambac’s stock, and the historical volatilities of our peer industry group. Peer group historical volatilities were considered due to the fact that Ambac stock has been traded for a time period less than the expected life of the options. A zero dividend yield was assumed based on the uncertainty of Ambac making dividend payments over the expected life of these options. The risk-free interest rate reflects the U.S. Treasury yield curve in effect at the time of the grant. The expected life represents the period of time that options granted are expected to be outstanding and is based on certain factors we believe will influence exercise behavior.

A summary of option activity for the years ending December 31, 2013 and 2012 is as follows:

 

     Successor Ambac – 8 months Ended December 31, 2013  
     Shares      Weighted
Average
Exercise Price
     Aggregate
Intrinsic Value
     Weighted
Average
Remaining
Contractual
Life
 

Outstanding at beginning of period

     —         $ —           

Granted

     66,668         20.63       $ 262         6.98   

Exercised

     —           na.         

Forfeited or expired

     —           na.         
  

 

 

          

Outstanding at end of period

     66,668       $ 20.63       $ 262         6.98   
  

 

 

          

Exercisable

     —         $ —         $ —           na.   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

     Predecessor Ambac – 4 months Ended April 30, 2013  
     Shares      Weighted
Average
Exercise Price
     Aggregate
Intrinsic Value
     Weighted
Average
Remaining
Contractual
Life
 

Outstanding at beginning of period

     602,775         $41.17         

Granted

     —           na.         

Exercised

     —           na.         

Forfeited or expired

     (602,775)         $41.17         
  

 

 

          

Outstanding at end of period

     —           na.         $—           na.   
  

 

 

          

Exercisable

     —           $ —           $—           na.   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

     Predecessor Ambac – December 31, 2012  
     Shares      Weighted
Average
Exercise Price
     Aggregate
Intrinsic Value
     Weighted
Average
Remaining
Contractual
Life
 

Outstanding at beginning of year

     1,139,429         $45.15         

Granted

     —           na.         

Exercised

     —           na.         

Forfeited or expired

     (536,654)         $49.63         
  

 

 

          

Outstanding at end of year

     602,775         $41.17         $—           1.46   
  

 

 

          

Exercisable

     602,775         $41.17         $—           1.46   
  

 

 

    

 

 

    

 

 

    

 

 

 

As of December 31, 2013 and 2012 there were $444 and $0 of total unrecognized compensation costs related to unvested stock options granted, respectively. The 2013 costs are expected to be recognized over a weighted average period of 0.33 years. Gross stock option expense for 2013 and 2012 was $56 and $0, respectively. The net income effect from stock options for 2013 and 2012 was $56 and $0, respectively.

Restricted Stock Units (“RSUs”)

RSUs were awarded to employees under the 2013 Plan that will vest in two installments, 50% on the grant date and 50% on the first anniversary of the grant date. RSU awards to employees provide for accelerated vesting upon change in control or death or disability. Such employee RSUs will settle and convert into Ambac shares upon the earlier of (a) the employee’s termination of employment other than for cause and (b) the second anniversary of the applicable vesting date.

RSUs were awarded to directors under the 2013 Plan that will vest on April 30, 2014. These RSUs will not settle until the respective director’s termination from the board of directors or, if earlier, upon a change in control. All RSUs provide for accelerated vesting upon a change in control, death or disability or involuntary removal other than for cause (not including removal pursuant to a shareholder vote at a regularly scheduled annual meeting of shareholders). Upon voluntary resignation, the RSUs shall vest as of the date of such resignation in an amount equal to the number of then outstanding RSUs multiplied by a fraction, the numerator of which shall be the number of calendar days which have lapsed since the grant date and the denominator of which shall be the number of calendar days from the grant date to the one-year anniversary of the grant date.

As of December 31, 2013, 154,186 RSUs remained outstanding, of which (i) 113,921 units required future service as a condition to the delivery of the underlying shares of common stock and (ii) 40,265 units did not require future service. As of December 31, 2012, 104,389 RSUs remained outstanding, of which (i) 70,530 units required future service as a condition to the delivery of the underlying shares of common stock and (ii) 33,859 units did not require future service. Gross RSU expense for 2013 and 2012 was $1,051 and $0, respectively. The net income effect from RSUs for 2013 and 2012 was $1,051 and $0, respectively.

Ambac’s closing share price on the grant date was used to estimate the fair value of the service condition based RSU on the grant date.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

Information with respect to the RSU awards is as follows:

 

     2013  

RSUs and other stock awarded

     155,123   

Weighted average fair value per share

   $ 20.63   

Gross RSU expense

   $ 1,051   

Net income effect

   $ 1,051   

A summary of RSU activity for 2013 and 2012 is as follows:

 

     Successor Ambac –
8 Months Ended
December 31, 2013
 
     Shares     Weighted
Average
Grant Date
Fair Value
 

Outstanding at beginning of period

     —        $ —     

Granted

     155,123      $ 20.63   

Delivered

     (937   $ 20.63   

Forfeited

     —        $ —     
  

 

 

   

Outstanding at end of period

     154,186      $ 20.63   
  

 

 

   

 

     Predecessor Ambac –
4 Months Ended
April 30, 2013
 
     Shares     Weighted
Average
Grant Date
Fair Value
 

Outstanding at beginning of period

     104,389      $ 21.43   

Granted

     —        $ —     

Delivered

     (843   $ 74.43   

Forfeited

     (103,546   $ 20.40   
  

 

 

   

Outstanding at end of period

     —        $ —     
  

 

 

   

 

     Predecessor Ambac –
December 31, 2012
 
     Shares     Weighted
Average
Grant Date
Fair Value
 

Outstanding at beginning of year

     113,739      $ 23.96   

Granted

     —        $ —     

Delivered

     (9,350   $ 52.16   

Forfeited

     —        $ —     
  

 

 

   

Outstanding at end of year

     104,389      $ 21.43   
  

 

 

   

As of December 31, 2013 and 2012, there was $2,150 and $0 of total unrecognized compensation costs related to unvested RSUs granted. These costs are expected to be recognized over a weighted average period of 0.7 years. The fair value for RSUs vested during 2013 and 2012 was $19 and $0, respectively.

 

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Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands, Except Share Amounts)

 

18.        COMMITMENTS AND CONTINGENCIES

Ambac is responsible for leases on the rental of office space. The lease agreements, the initial terms of which expire periodically through December 2015, contain provisions for scheduled periodic rent increases and are accounted for as operating leases. An estimate of future net minimum lease payments in each of the next five years ending December 31, and the periods thereafter, is as follows:

 

     Amount  

2014

   $ 5,471   

2015

     5,374   

2016

     —     

2017

     —     

2018

     —     

All later years

     —     
  

 

 

 
   $ 10,845   
  

 

 

 

Rent expense for the aforementioned leases amounted to $5,293 and $4,685 for the years ended December 31, 2013 and 2012, respectively.

The Segregated Account and Wisconsin Rehabilitation Proceeding

On March 24, 2010, Ambac Assurance established a segregated account (the “Segregated Account”) and allocated to the Segregated Account certain financial guaranty insurance policies and other contingent liabilities, certain claims and other rights, and certain equity interests in subsidiaries. An insurance rehabilitation proceeding (the “Rehabilitation Proceeding”) was commenced with respect to the Segregated Account in the Wisconsin Circuit Court for Dane County (the “Rehabilitation Court”) on March 24, 2010 by the Commissioner of Insurance of the State of Wisconsin (the “Commissioner”) and the Rehabilitation Court entered an order of rehabilitation for the Segregated Account, appointing the Commissioner as Rehabilitator, and entered orders enjoining certain actions that could have an adverse effect on the financial condition of the Segregated Account.

Various third parties have filed motions or objections in the Rehabilitation Court and/or moved to intervene in the Segregated Account Rehabilitation Proceeding. On January 24, 2011, the Rehabilitation Court issued its Decision and Final Order Confirming the Rehabilitator’s Plan of Rehabilitation, with Findings of Fact and Conclusions of Law (the “Confirmation Order”). Notices of appeal from the Confirmation Order were filed by various parties, including policyholders. These appeals challenged various provisions of the Segregated Account Rehabilitation Plan and actions the Rehabilitator or the Wisconsin Commissioner of Insurance had taken in formulating the Segregated Account Rehabilitation Plan. These appeals from the Confirmation Order were consolidated with earlier-filed appeals challenging, among other things, the issuance of injunctive relief and a settlement between Ambac Assurance and various financial institutions. On October 24, 2013, the Wisconsin Court of Appeals affirmed the Confirmation Order and the Rehabilitation Court’s rejection of the objections filed by various third parties before entry of the Confirmation Order. On November 22, 2013, petitions seeking discretionary review of this ruling by the Wisconsin Supreme Court were filed by (1) Wells Fargo Bank, National Association, as trustee for certain insured bonds issued by the Las Vegas Monorail Co., and four Eaton Vance entities claiming to own some number of these bonds; and (2) Deutsche Bank National Trust Company, Deutsche Bank Trust Company Americas, and U.S. Bank National Association, all as trustees for certain insured bonds or obligations. Additionally, on December 6, 2013, the Customer Asset Protection Company (“CAPCO”) filed a Response to these two petitions for review in which CAPCO took no position on whether the Wisconsin Supreme Court should grant the petitions,

 

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but asked the court to allow further consideration of Wis. Stat. § 645.68 if it does grant the petitions for review. The Rehabilitator responded by opposing further review by the Wisconsin Supreme Court. The Wisconsin Supreme Court has not yet issued a determination on whether to grant the petitions for discretionary review.

On August 17, 2012, the Rehabilitator filed two motions with the Rehabilitation Court relating to policies allocated to the Segregated Account and issued in connection with residential mortgage-backed securities (“RMBS”). The first motion (the “Injunction Scope Motion”) sought to confirm the scope of the relief issued by the Rehabilitation Court under its March 24, 2010 Order for Temporary Injunctive Relief, as supplemented by its November 8, 2010 Order for Temporary Supplemental Injunctive Relief and made permanent by its January 24, 2011 Decision and Final Order Confirming the Rehabilitator’s Plan of Rehabilitation (the “Injunction”). On September 12, 2012, the Rehabilitation Court approved by order the Injunction Scope Motion, confirming that one of the effects of the Injunction is, among other things, to prevent Ambac Assurance and the Segregated Account from losing any rights to obtain relief for counterparties’ breaches of the transaction documents relating to RMBS and to prohibit counterparties to such transaction documents from taking any actions to prevent or attempt to prevent Ambac Assurance and/or the Segregated Account from exercising or enforcing any rights (including the right to demand repurchases of certain non-compliant loans), interests and/or claims pursuant to these transaction documents due to the existence of the rehabilitation proceedings and/or the occurrence of any acts taken or not taken or authorized to be taken pursuant thereto. The time to appeal the Court’s September 12th Order has expired and no appeals have been taken.

On January 17, 2014, the Rehabilitator filed a motion to obtain court approval to disburse settlement proceeds as permitted policy claim payments to specific policyholders as required by a settlement entered into with Residential Capital, LLC and related debtors in bankruptcy proceedings in the U.S. Bankruptcy Court for the Southern District of New York (the “ResCap Settlement”). In addition to seeking this approval with respect to the ResCap Settlement, the motion seeks the court’s confirmation of the Rehabilitator’s authority to distribute proceeds from settlements of RMBS Remediation Claims (as defined in the motion) as he deems appropriate and in the best interests of the Segregated Account and such distributions may include (i) paying claims by making payments in excess of the then applicable claims cash payment percentage, and/or (ii) paying all or portions of unpaid permitted policy claims. On February 7, 2014, three RMBS trustees jointly filed a partial objection to the motion. On February 13, 2014, the court heard argument on this motion and issued an order approving the Rehabilitator’s motion.

Litigation Filed Against Ambac

County of Alameda et al. v. Ambac Assurance Corporation et al. (Superior Court of the State of California, County of San Francisco, second amended complaint filed on or about August 23, 2011) (“Alameda Complaint”); Contra Costa County et al. v. Ambac Assurance Corporation et al. (Superior Court of the State of California, County of San Francisco, third amended complaint filed on or about October 21, 2011) (“Contra Costa Complaint”); The Olympic Club v. Ambac Assurance Corporation et al. (Superior Court of the State of California, County of San Francisco, fourth amended complaint filed on or about October 21, 2011) (“Olympic Club Complaint”). The Contra Costa Complaint is brought on behalf of five California municipal entities and the non-profit Jewish Community Center of San Francisco. The Alameda Complaint is brought on behalf of nineteen California municipal entities. The Olympic Club Complaint is brought on behalf of the non-profit Olympic Club. The three actions make similar allegations against Ambac Assurance, various other financial guarantee insurance companies and employees thereof (collectively with Ambac Assurance, the “Bond Insurer Defendants”), and, in the case of the Contra Costa Complaint and the Olympic Club Complaint, the major credit rating agencies (the “Rating Agencies”). The actions allege that (1) Ambac Assurance and the other Bond Insurer Defendants colluded with the Rating Agencies to perpetuate a “dual rating system” pursuant to which the Rating Agencies

 

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rated the debt obligations of municipal issuers differently from corporate debt obligations, thereby keeping municipal ratings artificially low relative to corporate ratings; (2) Ambac Assurance and the other Bond Insurer Defendants issued false and misleading financial statements and failed to disclose the extent of the insurers’ respective exposures to mortgage-backed securities and collateralized debt obligations; and (3) as a result of these actions, plaintiffs incurred higher interest costs and bond insurance premiums in respect of their respective bond issues. Ambac Financial Group was originally a defendant in each of these actions, but on November 22, 2010, Ambac Financial Group was dismissed without prejudice as a defendant by the plaintiffs in each of these actions. Ambac Assurance and the other Bond Insurer Defendants filed a demurrer seeking dismissal of the current amended complaints on September 21, 2011, which was denied on October 20, 2011. On December 2, 2011, Ambac Assurance and the other Bond Insurer Defendants filed a special motion to strike the current amended complaints under California’s Anti-SLAPP statute (Calif. Code of Civ. Proc. Section 425.16). A hearing on the motion was held on March 23, 2012. On May 1, 2012, the Court ruled that the complaints were governed by the Anti-SLAPP statute to the extent they alleged conspiracy to influence the rating agencies’ rating methodologies, but not to the extent that the complaints alleged false or misleading statements or nondisclosures. After oral argument on March 21, 2013, the court dismissed claims related to the conspiracy branch of the complaint under the California Antitrust Law (the Cartwright Act) and after oral argument on April 22, 2013 denied defendants’ motion to dismiss claims under the California Unfair Competition Law. The court entered an order to this effect on July 9, 2013. On September 9, 2013, plaintiffs filed a notice of appeal of the July 9 th Order and on September 30, 2013, Ambac Assurance filed a notice of cross-appeal. On September 9, 2013, the parties filed motions for attorneys’ fees in connection with defendants’ demurrers. The court denied plaintiffs’ motion for fees from the bench on November 8, 2013. Defendants’ motions remain pending.

NPS LLC v. Ambac Assurance Corporation (United States District Court, District of Massachusetts, filed on July 8, 2008). This action was brought by NPS LLC (“NPS”), the owner of Gillette Stadium, the home stadium of the New England Patriots, with respect to the termination of a financial guarantee insurance policy issued by Ambac Assurance relating to auction rate bonds issued by NPS in 2006. Due to well-documented disruption of the auction rate securities market, the interest rate on the bonds floated to high levels and NPS therefore refinanced the bonds in a fixed rate financing without Ambac Assurance’s involvement. Pursuant to the insurance agreement between NPS and Ambac Assurance, NPS is obligated to pay a “make whole” premium to Ambac Assurance equal to the present value of the installment premiums that Ambac Assurance would have earned through 2017 if the bonds had not been redeemed (approximately $2,700). NPS alleged that it is not liable to pay the “make whole” premium because Ambac Assurance misrepresented its financial condition at the time the bonds were issued and that the alleged misrepresentations induced NPS to enter into the insurance agreement, thereby causing NPS to incur additional interest costs in connection with the bonds. NPS also alleged that Ambac Assurance was liable to NPS for the additional interest costs incurred by NPS which resulted from the disruption of the auction rate securities market. On February 25, 2010, the court granted Ambac Assurance’s motion for summary judgment as to all of NPS’s claims and Ambac Assurance’s counterclaim for the “make whole” premium and interest and costs. The parties are awaiting a determination by the court of the amount of Ambac Assurance’s legal fees that NPS will be required to pay. NPS has stated that it intends to appeal the grant of summary judgment in favor of Ambac Assurance.

Water Works Board of the City of Birmingham v. Ambac Financial Group, Inc. and Ambac Assurance Corporation (United States District Court, Northern District of Alabama, Southern Division, filed on November 10, 2009). This action alleged breach of contract, misrepresentation, deceit, suppression of truth and negligence. Plaintiff claims that, in connection with plaintiff’s purchase of a debt service reserve fund surety bond from Ambac Assurance in March 2007 with respect to its bond issue, Ambac Assurance misrepresented the stability of its “AAA” financial strength ratings and subsequently breached a covenant to maintain its “AAA” ratings, thereby causing loss to plaintiff when it was required to replace the Ambac Assurance surety bond upon

 

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the downgrade of Ambac Assurance’s ratings. On April 1, 2010, the court granted defendants’ motion to dismiss all claims. The plaintiff appealed the dismissal to the U.S. Court of Appeals for the Eleventh Circuit. On August 5, 2013, the Court of Appeals affirmed the District Court’s dismissal of all claims. The time for plaintiff to appeal has expired.

Broadbill Partners LP et al. v. Ambac Assurance Corporation (Supreme Court of the State of New York, County of New York, filed November 8, 2012). Plaintiffs, alleged owners of Ambac Assurance preferred stock, commenced litigation against Ambac Assurance asserting claims for breach of contract, unjust enrichment, constructive trust, resulting trust and rescission related to Ambac Assurance’s exercise in or about December 2008 of rights under put option agreements with certain trusts. Plaintiffs allege that as a result of the improper exercise of such rights, Ambac Assurance received approximately $800,000 in trust assets from the trusts in exchange for nearly worthless shares of Ambac Assurance preferred stock, which were thereafter delivered to the holders of the securities issued by the trusts. Plaintiffs seek damages, the imposition of a constructive trust, rescission and attorney’s fees. Ambac Assurance filed a motion to dismiss on January 15, 2013, which the plaintiffs opposed. The Court held oral argument on September 11, 2013. The court has not yet decided the motion.

Ambac Assurance has periodically received various regulatory inquiries and requests for information with respect to investigations and inquiries that such regulators are conducting. Ambac Assurance has complied with all such inquiries and requests for information.

Ambac is involved from time to time in various routine legal proceedings, including proceedings related to litigation with present or former employees. Although Ambac’s litigation with present or former employees is routine and incidental to the conduct of its business, such litigation can result in large monetary awards when a civil jury is allowed to determine compensatory and/or punitive damages for, among other things, termination of employment that is wrongful or in violation of implied contracts.

It is not reasonably possible to predict whether additional suits will be filed or whether additional inquiries or requests for information will be made, and it is also not possible to predict the outcome of litigation, inquiries or requests for information. It is possible that there could be unfavorable outcomes in these or other proceedings. Legal accruals for certain litigation against Ambac which are probable and reasonably estimable, and management’s estimated range of loss for such matters, are not material to the operating results or financial position of the Company. For the remaining litigation matters Ambac is defending that do not meet the “probable and reasonably estimable” accrual threshold and where no loss estimates have been provided above, management is unable to make a meaningful estimate of the amount or range of loss that could result from unfavorable outcomes but, under some circumstances, adverse results in any such proceedings could be material to our business, operations, financial position, profitability or cash flows. The Company believes that it has substantial defenses to the claims filed against it in these lawsuits and, to the extent that these actions proceed, the Company intends to defend itself vigorously; however, the Company is not able to predict the outcomes of these actions.

Litigation Filed by Ambac

In the ordinary course of their businesses, certain of Ambac’s subsidiaries assert claims in legal proceedings against third parties to recover losses already paid and/or mitigate future losses. The amounts recovered and/or losses avoided which may result from these proceedings is uncertain, although recoveries and/or losses avoided in any one or more of these proceedings during any quarter or fiscal year could be material to Ambac’s results of operations in that quarter or fiscal year.

Ambac Assurance Corporation v. Adelanto Public Utility Authority (United States District Court, Southern District of New York, filed on June 1, 2009). Ambac Assurance commenced this action to recover from the

 

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defendant on account of Ambac Assurance’s payment under a swap termination surety bond. The defendant counterclaimed (as amended on June 12, 2010), alleging breach of contract, breach of the covenant of good faith and fair dealing, violations of California insurance statutes, fraud and promissory estoppel. Defendant claims that, in connection with defendant’s purchase of a bond insurance policy with respect to its variable rate bond issue in September 2005, Ambac Assurance misrepresented the stability of its “AAA” financial strength ratings and subsequently breached an implied covenant by underwriting risky structured obligations that ultimately led to the loss of the “AAA” ratings. On November 14, 2011, the court dismissed the defendant’s amended counterclaim in its entirety upon the motion of Ambac Assurance, and discovery commenced in December 2011. Both parties moved for summary judgment at the conclusion of discovery. On January 11, 2013 the court granted Ambac Assurance’s motion for summary judgment on all claims except Ambac Assurance’s claim for specific performance (as to which no summary judgment motion was made) and denied defendant’s motion. At a March 13, 2013 conference, the court requested that the parties prepare submissions regarding the amount of damages and fees Ambac Assurance is entitled to recover. Following a hearing on August 23, 2013, the court issued an order on August 29, 2013, awarding Ambac interest on the termination payment as well as legal fees and expenses as of March 31, 2013. In order to expedite the disposition of any appeals, Ambac Assurance filed a motion for the entry of final judgment for the claims upon which summary judgment was awarded and the defendant has moved for the entry of final judgment on the dismissal in 2011 of all its counterclaims against Ambac Assurance, with each party announcing that it did not oppose the motion of the other; the parties are awaiting action on their respective motions. Ambac Assurance Corporation v. City of Detroit, Michigan, Kevyn D. Orr, John Naglick, Michael Jamison and Cheryl Johnson (United States Bankruptcy Court, Eastern District of Michigan Southern Division, filed on November 8, 2013). Ambac Assurance commenced this litigation, which relates to certain ad valorem taxes that the City levies and collects, in connection with the City of Detroit’s bankruptcy proceeding. On December 9, 2013, defendants filed motions to dismiss the complaint. Ambac Assurance filed an amended complaint on December 23, 2013. In its amended complaint, Ambac Assurance seeks a declaratory judgment that, among other things, (i) under Michigan law, the defendants must segregate the ad valorem tax revenues pledged to pay the City’s general obligation bonds insured by Ambac Assurance and not commingle them with City funds, and such ad valorem tax revenues are restricted funds and cannot be used for any purpose other than to satisfy the City’s payment obligations with respect to its general obligation bonds; (ii) the City lacks any equitable or beneficial property interest in such ad valorem tax revenues and the bondholders have equitable and beneficial property interests therein; (iii) the City’s general obligation bonds insured by Ambac Assurance are secured by, and the bondholders have, a statutory lien on such ad valorem tax revenues, or in the alternative, a security interest therein; (iv) a portion of the ad valorem tax revenues are “special revenues” under the United States Bankruptcy Code and must be applied in accordance therewith; and (v) the City’s diversion of the ad valorem tax revenues or a grant of any post-petition interest therein to any other person without just compensation is an unlawful taking under the Takings Clause of the Fifth Amendment to the United States Constitution. On January 17, 2014, the defendants filed a renewed motion to dismiss. Ambac Assurance opposed the motion. The court heard oral argument on February 19, 2014. The court has not yet decided the motion.

In connection with Ambac Assurance’s efforts to seek redress for breaches of representations and warranties and fraud related to the information provided by both the underwriters and the sponsors of various transactions and for failure to comply with the obligation by the sponsors to repurchase ineligible loans, Ambac Assurance has filed various lawsuits:

 

   

Ambac Assurance Corporation v. EMC Mortgage LLC (formerly known as EMC Mortgage Corporation), J.P. Morgan Securities, Inc. (formerly known as Bear, Stearns & Co. Inc.), and JP Morgan Chase Bank, N.A. (Supreme Court of the State of New York, County of New York, filed February 17, 2011). This case is the continuation of a case that was originally filed on November 5,

 

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2008 in the U.S. District Court for the Southern District of New York but that was dismissed from federal court after Ambac Assurance was granted leave to amend its complaint to add certain new claims (but not others) and a new party, which deprived the federal court of jurisdiction over the litigation. After the decision by the federal judge, dated February 8, 2011, Ambac Assurance re-filed the suit in New York state court on February 17, 2011. On July 18, 2011, Ambac Assurance filed a First Amended Complaint in its state-court litigation. In its state-court action, Ambac Assurance asserts claims for breach of contract, indemnification and reimbursement against EMC, as well as claims of fraudulent conduct by EMC and J. P. Morgan Securities Inc. In its First Amended Complaint, Ambac Assurance asserts an additional claim for breach of contract against EMC and a claim for successor liability against a new defendant, JP Morgan Chase Bank, N.A. The Defendants filed their answer to the First Amended Complaint on August 30, 2011, and the parties are currently engaged in discovery.

 

   

Ambac Assurance Corporation and The Segregated Account of Ambac Assurance Corporation v. EMC Mortgage LLC (formerly known as EMC Mortgage Corporation), J.P. Morgan Securities, Inc. (formerly known as Bear, Stearns & Co. Inc.), and JP Morgan Chase Bank, N.A. (Supreme Court of the State of New York, County of New York, filed March 30, 2012 and amended on August 14, 2012). Ambac Assurance alleges claims for fraudulent inducement and breaches of contract against EMC and J.P. Morgan Securities Inc., as well as claims against JP Morgan Chase Bank, N.A. as EMC’s successor in interest, arising from the defendants’ misrepresentations and breaches of contractual warranties regarding certain transactions that are not the subject of Ambac Assurance’s previously filed lawsuit against the same defendants (described above). Defendants filed a motion to dismiss the amended complaint on September 28, 2012, which Ambac Assurance opposed on October 26, 2012. Oral argument was held on February 21, 2013. On June 13, 2013, the court dismissed Ambac Assurance’s contractual claims but not its claims for fraudulent inducement or successor liability. On July 8, 2013, Ambac Assurance filed its notice of appeal. In the interim, fact discovery is ongoing.

 

   

Ambac Assurance Corporation and The Segregated Account of Ambac Assurance Corporation v. First Franklin Financial Corporation, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Inc., Merrill Lynch Mortgage Lending, Inc., and Merrill Lynch Mortgage Investors, Inc. (Supreme Court of the State of New York, County of New York, filed April 16, 2012). Ambac Assurance alleges breach of contract, fraudulent inducement, indemnification, reimbursement and requested the repurchase of loans that breach representations and warranties as required under the contracts, as well as damages. Defendants filed a motion to dismiss on July 13, 2012, which Ambac opposed on September 21, 2012. Oral argument was held on May 6, 2013. On July 18, 2013 the court dismissed Ambac Assurance’s claims for indemnification and limited Ambac Assurance’s claim for breach of loan-level warranties to the repurchase protocol, but did not dismiss Ambac Assurance’s other contractual claims or fraudulent inducement claim. On August 21, 2013, defendants filed a notice of appeal, and on August 30, 2013, Ambac Assurance filed a notice of cross-appeal. Discovery is ongoing. No trial date has been set.

 

   

Ambac Assurance Corporation and The Segregated Account of Ambac Assurance Corporation v. Countrywide Securities Corp., Countrywide Financial Corp. (a.k.a. Bank of America Home Loans) and Bank of America Corp. (Supreme Court of the State of New York, County of New York, filed on September 28, 2010). Ambac Assurance filed an Amended Complaint on September 8, 2011. Ambac Assurance alleged breach of contract, fraudulent inducement, indemnification and reimbursement, and breach of representations and warranties, requested the repurchase of loans that breach representations and warranties as required under the contracts, as well as damages, and asserted a successor liability claim against Bank of America. On May 28, 2013, Ambac Assurance filed a Second Amended Complaint adding an alter ego claim against Bank of America alleging that, because Bank of America and Countrywide are alter egos of one another, Bank of America is responsible for Countrywide’s

 

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liabilities to Ambac. The defendants served their answers on July 31, 2013. Discovery is ongoing. No trial date has been set.

 

   

Ambac Assurance Corporation and The Segregated Account of Ambac Assurance Corporation v. Capital One, N.A., as successor by merger to Chevy Chase Bank, F.S.B. (United States District Court for the Southern District of New York, filed on October 24, 2012). Ambac Assurance alleges claims for breach of contract, indemnification, reimbursement and requested the repurchase of loans that breach representations and warranties as required under the contracts, as well as damages. Defendants filed a motion to dismiss on February 6, 2013, which Ambac Assurance opposed in a brief filed on February 20, 2013. The motion was fully briefed and filed on March 5, 2013. The court held oral argument on March 7, 2013 and has not yet decided the motion.

 

   

Ambac Assurance Corporation and The Segregated Account of Ambac Assurance Corporation v. Nomura Credit & Capital, Inc. and Nomura Holding America Inc. (Supreme Court of the State of New York, County of New York, filed on April 15, 2013). Ambac Assurance alleges claims for material breach of contract and for the repurchase of loans that breach representations and warranties under the contracts, as well as damages. Ambac Assurance has also asserted alter ego claims against Nomura Holding America, Inc. Defendants filed a motion to dismiss on July 12, 2013, which Ambac Assurance opposed. The court held oral argument on November 13, 2013. The court has not yet decided the motion. Discovery has been stayed pending a decision on the motion to dismiss.

19.        SEGMENT INFORMATION

Ambac has two reportable segments, as follows: (i) Financial Guarantee, which provides financial guarantees (including credit derivatives) for public finance, structured finance and other obligations; and (ii) Financial Services, which provides investment agreements, funding conduits, interest rate and currency swaps, principally to clients of the financial guarantee business. Ambac’s reportable segments were strategic business units that offer different products and services. They are managed separately because each business required different marketing strategies, personnel skill sets and technology.

Ambac Assurance guarantees the swap and investment agreement obligations of its Financial Services affiliates. Additionally, Ambac Assurance provides loans to the Financial Services businesses. Inter-segment revenues include the premiums and investment income earned under those agreements. Such premiums are determined as if they were premiums paid by third parties, that is, at current market prices.

Information provided below for “Corporate and Other” primarily relates to (i) Fresh Start items, including the discharge of liabilities subject to compromise and fair value adjustments to assets and liabilities (ii) amounts received by Ambac under the Mediation Agreement and related documents (as more fully described in Note 1); and (iii) other corporate activities, including interest income on the investment portfolio and accrual of interest on the Junior Surplus Notes issued by the Segregated Account. Corporate and Other intersegment revenue relates to receipts under the Mediation Agreement and related documents. The following table is a summary of financial information by reportable segment for the affected periods:

 

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     Financial
Guarantee (3)
    Financial
Services
    Corporate
and Other
    Inter-segment
Eliminations
    Consolidated  

Successor Ambac–Period from May 1 through December 31, 2013

      

Revenues:

      

Unaffiliated customers (1)

   $ 464,701      $ 116,177      $ 170      $ —       $ 581,048   

Inter-segment

     1,837        (1,210     22,126        (22,753     —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total revenues

   $ 466,538      $ 114,967      $ 22,296      $ (22,753   $ 581,048   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations:

      

Unaffiliated customers (1) (2) (3)

   $ 402,651      $ 113,019      $ (3,354   $ —       $ 512,316   

Inter-segment

     (23,163     (1,644     24,807        —         —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations

   $ 379,488      $ 111,375      $ 21,453      $ —       $ 512,316   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total assets as of December 31, 2013

   $ 26,597,097      $ 472,886      $ 36,956      $ —       $ 27,106,939   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net investment income

   $ 145,269      $ 1,115      $ 62      $ —       $ 146,446   

Insurance intangible amortization

   $ 99,658      $ —       $ —       $ —       $ 99,658   

Interest expense

   $ 83,595      $ 1,355      $ —       $ —       $ 84,950   

Reorganization items (4)

   $ —       $ —       $ 493      $ —       $ 493   

 

     Financial
Guarantee 
    Financial
Services
    Corporate
and Other
    Inter-segment
Eliminations
    Consolidated  

Predecessor Ambac–Period from January 1 through April 30, 2013

      

Revenues:

      

Unaffiliated customers (1)

   $ 633,010      $ 7,339      $ 39      $ —       $ 640,388   

Inter-segment

     940        (882     197,055        (197,113     —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total revenues

   $ 633,950      $ 6,457      $ 197,094      $ (197,113   $ 640,388   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations:

          

Unaffiliated customers (1) (2)

   $ 1,830,165      $ 3,233      $ 1,514,635      $ —       $ 3,348,033   

Inter-segment

     (197,187     (1,101     198,288        —         —    
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations

   $ 1,632,978      $ 2,132      $ 1,712,923      $ —       $ 3,348,033   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total assets as of April 30, 2013

   $ 28,287,321      $ 536,711      $ 29,403      $ —       $ 28,853,435   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net investment income

   $ 115,129      $ 1,572      $ 39      $ —       $ 116,740   

Interest expense

   $ 29,718      $ 1,307      $ —       $ —       $ 31,025   

Reorganization items (4)

   $ (1,231,550   $ 1,505      $ (1,515,135   $ —       $ (2,745,180

 

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     Financial
Guarantee 
    Financial
Services
    Corporate
and Other
    Inter-segment
Eliminations
    Consolidated  

Predecessor Ambac – Year Ended December 31, 2012

      

Revenues:

      

Unaffiliated customers (1)

   $ 758,331      ($ 72,977   $ 335      $ —        $ 685,689   

Inter-segment

     5,189        (4,992     645        (842     —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total revenues

   $ 763,520      ($ 77,969   $ 980      ($ 842   $ 685,689   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations:

          

Unaffiliated customers (1) (2)

   ($ 166,761   ($ 83,015   ($ 6,729   $ —        ($ 256,505

Inter-segment

     580        (5,775     5,195        —          —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Pre-tax income (loss) from continuing operations

   ($ 166,181   ($ 88,790   ($ 1,534   $ —        ($ 256,505
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total assets as of December 31, 2012

   $ 26,519,480      $ 533,528      $ 32,257      $ —        $ 27,085,265   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net investment income

   $ 365,912      $ 16,769      $ 221      $ —       $ 382,902   

Interest expense

   $ 105,973      $ 6,347      $ —       $ —       $ 112,320   

Reorganization items (4)

   $ —       $ —       $ 7,215      $ —       $ 7,215   

 

(1) Included in both revenues from unaffiliated customers and in pre-tax income (loss) from continuing operations from unaffiliated customers is net investment income.
(2) Included in pre-tax income (loss) from continuing operations from unaffiliated customers is interest expense.
(3) Included in pre-tax income from (loss) continuing operations from unaffiliated customers is amortization of intangible asset arising from financial guarantee contracts that were set to fair value upon adoption of Fresh Start. See “Note 8: Financial Guarantee Insurance Contracts,” for additional information.
(4) Refer to Note 3: Fresh Start Financial Statement Reporting, for a further discussion of Reorganization items.

The following table summarizes gross premiums written, net premiums earned and the net change in fair value of credit derivatives included in the Financial Guarantee segment by location of risk for the affected periods:

 

    Successor Ambac–Period from May
through December 31, 2013
   

 

  Predecessor Ambac–Period from
January 1 through April 30, 2013
    Predecessor Ambac–Year
Ended December 31, 2012
 
    Gross
Premiums
Written
    Net
Premiums
Earned
    Net Change
In Fair Value
Of Credit
Derivatives
   

 

  Gross
Premiums
Written
    Net
Premiums
Earned
    Net Change
In Fair Value
Of Credit
Derivatives
    Gross
Premiums
Written
    Net
Premiums
Earned
    Net Change in
Fair Value of
Credit
Derivatives
 

United States

  $ (61,255   $ 165,099      $ 122,696          $ (16,102   $ 104,594      $ (31,134   $ (260,517   $ 315,367      $ (8,496

United Kingdom

    (7,368     35,387        22,548            10,673        18,071        (5,861     10,785        73,955        (5,709

Other international

    (11,686     13,032        47,625            (8,696     7,335        (23,389     (27,776     25,282        4,986   
 

 

 

   

 

 

   

 

 

   

 

 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ (80,309   $ 213,518      $ 192,869          $ (14,125   $ 130,000      $ (60,384   $ (277,508   $ 414,604      $ (9,219
 

 

 

   

 

 

   

 

 

   

 

 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

None.

 

Item 9A. Controls and Procedures.

(a) Evaluation of Disclosure Controls and Procedures . Ambac’s management, with the participation of Ambac’s Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of Ambac’s disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), as of the end of the period covered by this report.

Disclosure controls and procedures are designed to ensure that information required to be disclosed by Ambac (including its consolidated subsidiaries) in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to Ambac’s management, including its Chief Executive Officer and Chief Financial officer, to allow timely decisions regarding required disclosure.

Based on this evaluation, Ambac’s Chief Executive Officer and Chief Financial Officer have concluded that, as of December 31, 2013, Ambac’s disclosure controls and procedures were effective at the reasonable assurance level.

There were no changes in Ambac’s internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during Ambac’s fiscal year ended December 31, 2013 that have materially affected, or are reasonably likely to materially affect, Ambac’s internal control over financial reporting.

(b) Management’s Report on Internal Control Over Financial Reporting . Management of Ambac is responsible for establishing and maintaining adequate internal control over financial reporting. Ambac’s internal control over financial reporting is a process designed under the supervision of the Chief Executive Officer and Chief Financial Officer and effected by Ambac’s Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of Ambac’s financial statements for external reporting purposes in accordance with U.S. generally accepted accounting principles. Ambac’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets of Ambac; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of Ambac; and (iii) provide reasonable assurance regarding the prevention or timely detection and remediation of unauthorized acquisition, use or disposition of Ambac’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Management conducted an assessment of the effectiveness of the Corporation’s internal control over financial reporting as of December 31, 2013. In making this assessment, management used the framework set forth in Internal Control – Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, management has determined that, as of December 31, 2013, the Corporation’s internal control over financial reporting is effective.

 

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The Corporation’s internal control over financial reporting as of December 31, 2013 has been audited by KPMG, LLP, the independent registered public accounting firm who also audited the Corporation’s consolidated financial statements. Their attestation report on the Corporation’s internal control over financial reporting is shown in Item 8.

 

Item 9B. Other Information.

Amendments to Bylaws

On February 28, 2014, the Board of Directors of the Company amended the Company’s By-laws (the “By-Laws”), effective as of that date, primarily to (i) revise the advance notice provisions for stockholders proposing business or nominating directors; (ii) add procedural and disclosure requirements for stockholders proposing business or nominating directors, calling special meetings or taking action by written consent; and (iii) update other bylaw provisions, including revisions related to the use of electronic communication technologies.

The Board deemed it advisable to adopt specific advance-notice requirements for stockholder proposals to nominate directors for election or to propose other action at any annual or special meeting of the Company’s stockholders. These provisions enhance both the Board’s and stockholders’ ability to consider stockholder proposals on a timely and informed basis.

In particular, the changes to the By-Laws include:

 

  1. Establishment of new advance notice and related procedural and disclosure requirements, which (i) require advance notice of a stockholder or beneficial owner (a “proposing person”) proposing business or nominating directors in connection with annual or special meetings of stockholders, along with compliance with procedural and informational requirements regarding the proposing person or proposed business, the proposing person’s ownership of referenced securities of the Company and related information and (ii) clarify that if the proposing person (or a qualified representative of such proposing person) does not appear at the meeting to present a nomination or proposed business, the nominee or proposal will not be considered.

 

  2. Aligning provisions pertaining to directors, Board committees and officers to more closely conform to current practice.

 

  3. Updating of provisions on notice, record dates, consents, proxies, voting procedures, conduct of meetings and meeting participation to accommodate use of modern electronic communication technologies.

 

  4. Addition of a forum selection clause specifying state or federal courts located in the State of Delaware as the sole and exclusive forum for proceedings which, among other things, are brought on behalf of the Company, claim breaches of fiduciary duty, arise under the Company’s governing documents or the Delaware General Corporation Law, or are governed by the internal affairs doctrine.

Additional minor amendments and conforming changes were made that do not materially affect the substance of the By-Laws.

The foregoing is only a summary of certain changes contained in the Company’s Amended By-Laws. Such summary is qualified in its entirety by reference to the Company’s Amended By-Laws, a copy of which is filed as Exhibit 3.2 to this Annual Report on Form 10-K, and incorporated herein by reference.

 

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Table of Contents

Part III

 

Item 10. Directors, Executive Officers and Corporate Governance.

Information relating to the Registrant’s executive officers and directors, including its audit committee and audit committee financial experts will be in the Registrant’s definitive Proxy Statement for its 2014 Annual Meeting of Stockholders to be held on May 22, 2014, which will be filed within 120 days of the end of our fiscal year ended December 31, 2013 (the “2014 Proxy Statement”) and is incorporated herein by reference. Information relating to the Registrant’s Code of Business Conduct is included in Part I, Item 1 of this Annual Report on Form 10-K.

 

Item 11. Executive Compensation.

Information relating to the Registrant’s executive officer and director compensation will be in the 2014 Proxy Statement and is incorporated herein by reference.

 

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

Information relating to security ownership of certain beneficial owners of the Registrant’s common stock and information relating to the security ownership of the Registrant’s management will be in the 2014 Proxy Statement and is incorporated herein by reference.

Information relating to compensation plans under which equity securities of the Registrant are authorized for issuance will be in the 2014 Proxy Statement and is incorporated herein by reference.

 

Item 13. Certain Relationships and Related Transactions, and Director Independence.

Information relating to the Registrant with respect to certain relationships and related transactions and director independence will be in the 2014 Proxy Statement and is incorporated herein by reference.

 

Item 14. Principal Accountant Fees and Services.

Information relating to principal accountant fees and services will be in the 2014 Proxy Statement and is incorporated herein by reference.

Part IV

 

Item 15. Exhibits, Financial Statement Schedules.

 

  (a) Documents filed as a part of this report:

 

  1. Financial Statements

The consolidated financial statements included in Item 8 above are filed as part of this Annual Report on Form 10-K.

 

  2. Financial Statement Schedules

The financial statement schedules filed herein, which are the only schedules required to be filed, are as follows:

 

Schedule I—Summary of Investments Other Than Investments in Related Parties

     226   

Schedule II—Condensed Financial Information of Registrant (Parent Company Only)

     227-235   

Schedule IV—Reinsurance

     236   

 

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Table of Contents
  3. Exhibits

The following items are annexed as exhibits:

 

Exhibit

Number

  

Description

    3.1    Amended and Restated Certificate of Incorporation of Ambac Financial Group, Inc. (incorporated by reference to Exhibit 3.1 to Form 8-A, filed on May 1, 2013)
    3.2+    Amended By-laws of Ambac Financial Group, Inc.
    4.1    Specimen form of common stock certificate (incorporated by reference to Exhibit 4.1 to Form 8-A, filed on May 1, 2013)
    4.2    Warrant Agreement between Ambac Financial Group, Inc. and Computershare Inc. (incorporated by reference to Exhibit 4.2 to Form 8-A, filed on May 1, 2013)
    4.3    Specimen form of warrant certificate (included in Exhibit 4.2)
    4.4    Fiscal Agency Agreement, dated as of June 7, 2010, by and between Ambac Assurance Corporation and The Bank of New York Mellon, as fiscal agent (filed as Exhibit 10.2 to Ambac Financial Group, Inc.’s Current Report on Form 8-K filed June 8, 2010 and incorporated herein by reference)
    4.5+    Junior Note Fiscal Agency Agreement, dated as of April 30, 2013, by and between the Segregated Account of Ambac Assurance Corporation and The Bank of New York Mellon, as fiscal agent
    4.6+    5.1% Junior Surplus Note due June 7, 2020 in the aggregate amount of $350 million issued by the Segregated Account of Ambac Assurance Corporation pursuant to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013.
    4.7+    Form of 5.1% Non-Reducing Junior Surplus Note due June 7, 2020 issued by the Segregated Account of Ambac Assurance Corporation.
    4.8+    Form of 5.1% Bankruptcy Reducing Junior Surplus Note due June 7, 2020 issued by the Segregated Account of Ambac Assurance Corporation.
    4.9+    Form of 5.1% Reducing Junior Surplus Note due June 7, 2020, issued by the Segregated Account of Ambac Assurance Corporation.
    4.10+    Fiscal Agency Agreement, dated as of July 19, 2010, by and between the Segregated Account of Ambac Assurance Corporation and The Bank of New York Mellon, as fiscal agent
    4.11    Form of Surplus Note due June 7, 2020 issued by the Segregated Account of Ambac Assurance Corporation.(included in Exhibit 4.10)
  10.1    Amendment No. 1, dated April 29 2013, to the Amended and Restated Tax Sharing Agreement among Ambac Financial Group, Inc. and certain of its affiliates (filed as Exhibit 10.1 to Ambac Financial Group, Inc.’s Current Report on Form 8-K, filed on May 3, 2013 and incorporated herein by reference)
  10.2    Closing Agreement between Ambac Financial, Group, Inc. and Commissioner of Internal Revenue, dated April 30, 2013 (filed as Exhibit 10.2 to Ambac Financial Group, Inc.’s Current Report on Form 8-K, filed on May 3, 2013 and incorporated herein by reference)
  10.3    Ambac Financial, Group, Inc.’s Incentive Compensation Plan (incorporated by reference as Appendix A to Ambac Financial Group’s 2013 Definitive Proxy Statement on Schedule 14A filed on November 8, 2013)

 

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Table of Contents

Exhibit

Number

  

Description

  10.4+    Form of Amended and Restated Restricted Stock Unit Award Letter for executive officers
  10.5+    Form of Equity Award Letter for directors
  10.6    Ambac Financial Group, Inc. Severance Pay Plan (Applicable to termination on or after January 1, 2010) (filed as Exhibit 10.26 to Ambac Financial Group, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010 and incorporated herein by reference)
  10.7    Lease, dated as of March 1, 2011, by and between One State Street, LLC and Ambac Assurance Corporation (filed as Exhibit 10.34 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2010 and incorporated herein by reference)
  10.8    Management Services Agreement, dated as of March 24, 2010, by and between the Segregated Account of Ambac Assurance Corporation and Ambac Assurance Corporation (filed as Exhibit 10.22 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2010 and incorporated herein by reference)
  10.9    Cooperation Agreement, dated as of March 24, 2010, by and between the Segregated Account of Ambac Assurance Corporation and Ambac Assurance Corporation (filed as Exhibit 10.23 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2010 and incorporated herein by reference)
  10.10    Form of Amendment No. 1 to Cooperation Agreement between the Segregated Account of Ambac Assurance Corporation and Ambac Assurance Corporation (filed as Exhibit 10.3 to Ambac Financial Group, Inc.’s Current Report on Form 8-K filed September 27, 2011 and incorporated herein by reference)
  10.10    Aggregate Excess of Loss Reinsurance Agreement, dated as of March 24, 2010, by and between the Segregated Account of Ambac Assurance Corporation and Ambac Assurance Corporation (filed as Exhibit 10.24 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2010 and incorporated herein by reference)
  10.11    Secured Note, dated as of March 24, 2010, from Ambac Assurance Corporation to the Segregated Account of Ambac Assurance Corporation (filed as Exhibit 10.25 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2010 and incorporated herein by reference)
  10.12+    Tax Sharing Agreement dated March 14, 2012 among Ambac Financial Group, Inc. and certain of its affiliates
  10.13    Settlement Agreement, dated as of June 7, 2010, by and among Ambac Assurance Corporation, Ambac Credit Products LLC, Ambac Financial Group, Inc. and the parties listed on Schedule A thereto (filed as Exhibit 10.1 to Ambac Financial Group, Inc.’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2010 and incorporated herein by reference)
  10.14    Settlement, Discontinuance and Release Agreement, dated as of March 1, 2011, by and among One State Street, LLC, Ambac Financial Group, Inc., Ambac Assurance Corporation and the Segregated Account of Ambac Assurance Corporation (filed as Exhibit 10.33 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2010 and incorporated herein by reference)
  10.15    Mediation Agreement dated September 21, 2011 among Ambac Financial Group, Inc., Ambac Assurance Corporation, the statutory committee of creditors appointed by the United States Trustee on November 17, 2010, the Segregated Account of Ambac Assurance Corporation, the Rehabilitator of the Segregated Account, and OCI (filed as Exhibit 10.1 to Ambac Financial Group, Inc.’s Current Report on Form 8-K filed September 27, 2011 and incorporated herein by reference)

 

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Table of Contents

Exhibit

Number

  

Description

  10.16    Form of Expense Sharing and Cost Allocation Agreement among Ambac Assurance Corporation, Ambac Financial Group, Inc. and their respective subsidiaries and affiliates (filed as Exhibit 10.2 to Ambac Financial Group, Inc.’s Current Report on Form 8-K filed September 27, 2011 and incorporated herein by reference)
  21.01+    List of Subsidiaries of Ambac Financial Group, Inc.
  24.01+    Power of Attorney for directors of Ambac Financial Group, Inc.
  31.1+    Certification of Chief Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) Promulgated under the Securities Exchange Act of 1934, as amended.
  31.2+    Certification of Chief Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) Promulgated under the Securities Exchange Act of 1934, as amended.
  32.1++    Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
  32.2++    Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
  99.1    Plan of Operation of the Segregated Account of Ambac Assurance Corporation (Filed as Exhibit 99.1 to Ambac Financial Group, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2010 and incorporated herein by reference.)
  99.2    Plan of Rehabilitation of the Segregated Account of Ambac Assurance Corporation. (Filed as Exhibit 99.2 to Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2010 and incorporated herein by reference.)
  99.3+    Second Modified Fifth Amended Plan of Reorganization of Ambac Financial Group, Inc., effective as of May 1, 2013.
101.INS    XBRL Instance Document.
101.SCH    XBRL Taxonomy Extension Schema Document.
101.CAL    XBRL Taxonomy Extension Calculation Linkbase Document.
101.LAB    XBRL Taxonomy Extension Label Linkbase Document.
101.PRE    XBRL Taxonomy Extension Presentation Linkbase Document.
101.DEF    XBRL Taxonomy Extension Definition Linkbase Document.

 

+ Filed herewith.
++ Furnished herewith.

 

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AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

SCHEDULE I - SUMMARY OF INVESTMENTS

Other Than Investments in Related Parties

Successor Ambac - December 31, 2013

(Dollar Amounts in Thousands)

 

Type of Investment

   Amortized
Cost
     Estimated
Fair Value
     Amount at which
shown in the
balance sheet
 

U.S. government obligations

   $ 254,611       $ 252,471       $ 252,471   

U.S. agency obligations

     32,214         32,154         32,154   

Municipal obligations

     1,405,293         1,377,723         1,377,723   

Residential mortgage-backed securities

     1,516,877         1,558,625         1,558,625   

Collateralized debt obligations

     184,118         183,872         183,872   

Other asset-backed securities

     1,020,251         992,448         992,448   

Corporate obligations

     1,508,377         1,489,369         1,489,369   

Foreign obligations

     131,709         124,877         124,877   

Short-term

     271,118         271,119         271,119   

Other

     241,069         241,069         241,069   
  

 

 

    

 

 

    

 

 

 

Total

   $ 6,565,637       $ 6,523,727       $ 6,523,727   
  

 

 

    

 

 

    

 

 

 

 

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Table of Contents

AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Condensed Balance Sheets

(Dollar Amounts in Thousands Except Share Data)

 

     Successor Ambac           Predecessor Ambac  
     2013           2012  

ASSETS

        

Assets:

        

Fixed income securities, at fair value (amortized cost of $28,149 for 2013)

   $ 28,145          $ —     

Junior surplus note of Ambac Assurance Segregated Account

     177,194            —    

Short-term investments, at cost (approximates fair value)

     8,319            30,316   

Cash

     43            41   

Investment in subsidiaries

     473,215            (2,220,724

Investment income due and accrued

     11,959            11   

Other assets

     4,936            6,441   
  

 

 

       

 

 

 

Total assets

   $ 703,811          $ (2,183,915
  

 

 

       

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

        

Liabilities:

        

Liabilities subject to compromise

   $ —            $ 1,704,939   

Current taxes

     —              1,900   

Accounts payable and other liabilities

     828            16,773   
  

 

 

       

 

 

 

Total liabilities

     828            1,723,612   
  

 

 

       

 

 

 

Stockholders’ equity (deficit):

        

Successor preferred stock, par value $0.01 per share; authorized shares—20,000,000; issued and outstanding shares—none at December 31, 2013

     —             —    

Predecessor preferred stock, par value $0.01 per share; authorized shares—4,000,000; issued and outstanding shares—none at December 31, 2012

     —             —    

Successor common stock, par value $0.01 per share; authorized shares—130,000,000; issued and outstanding shares—45,003,461 at December 31, 2013

     450            —    

Predecessor common stock, par value $0.01 per share; authorized shares—650,000,000; issued and outstanding shares—308,016,674 at December 31, 2012

     —             3,080   

Additional paid-in capital

     185,672            2,172,027   

Accumulated other comprehensive income

     11,661            625,385   

Retained earnings (accumulated deficit)

     505,219            (6,297,264

Successor common stock held in treasury at cost, 937 shares at December 31, 2013

     (19         —    

Predecessor common stock held in treasury at cost, 5,580,657 shares at December 31, 2012

     —             (410,755
  

 

 

       

 

 

 

Total Ambac Financial Group, Inc. stockholders’ equity (deficit)

     702,983            (3,907,527
  

 

 

       

 

 

 

Total liabilities and stockholders’ equity (deficit)

   $ 703,811          $ (2,183,915
  

 

 

       

 

 

 

 

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AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Condensed Statements of Total Comprehensive Income

(Dollar Amounts in Thousands)

 

     Successor Ambac            Predecessor Ambac  
     Period from May  1
through

December 31, 2013
           Period from January 1
through

April 30, 2013
           Year Ended
December 31,
2012
 

Revenues:

                

Interest income

   $ 22,227           $ 39           $ 221   

Other income

     197,122             —               758   

Net realized gains

     2             —               —     
  

 

 

        

 

 

        

 

 

 

Total revenues

     219,351             39             979   
  

 

 

        

 

 

        

 

 

 

Expenses:

                

Operating expenses

     3,018             539             (151
  

 

 

        

 

 

        

 

 

 

Total expenses

     3,018             539             (151
  

 

 

        

 

 

        

 

 

 

Income (loss) before income taxes, reorganization costs and equity in undistributed net loss of subsidiaries

     216,333             (500          1,130   

Reorganization items

     493             (2,745,180          7,215   
  

 

 

        

 

 

        

 

 

 

Income (loss) before income taxes and equity in undistributed net loss of subsidiaries

     215,840             2,744,680             (6,085

Federal income tax benefit

     —               (703          (136
  

 

 

        

 

 

        

 

 

 

Income (loss) before equity in undistributed net income (loss) of subsidiaries

     215,840             2,745,383             (5,949

Equity in undistributed net income (loss) of subsidiaries

     289,379             603,666             (250,729
  

 

 

        

 

 

        

 

 

 

Net income (loss)

   $ 505,219           $ 3,349,049           $ (256,678
  

 

 

        

 

 

        

 

 

 

Other comprehensive income, after tax:

              

Net income (loss)

   $ 505,219           $ 3,349,049           $ (256,678
  

 

 

        

 

 

        

 

 

 

Unrealized gains (losses) on securities, net of deferred income taxes of $0

     (41,910          175,347             166,252   

Gain (loss) gain on foreign currency translation, net of deferred income taxes of $0.

     42,724             (657          (334

Changes to postretirement benefit, net of tax

     10,847             185             (3,792
  

 

 

        

 

 

        

 

 

 

Total other comprehensive income

     11,661             174,875             162,126   
  

 

 

        

 

 

        

 

 

 

Total comprehensive income (loss) attributable to Ambac Financial Group, Inc.

   $ 516,880           $ 3,523,924           $ (94,552
  

 

 

        

 

 

        

 

 

 

 

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AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Condensed Statements of Stockholders’ Equity

(Dollar Amounts in Thousands)

 

          Ambac Financial Group, Inc.        
(Dollars in Thousands)   Total     Retained
Earnings
    Accumulated
Other
Comprehensive
Income
    Preferred
Stock
    Common
Stock
    Paid-in
Capital
    Common
Stock Held
in Treasury,
at Cost
 

Successor Ambac

             

Balance at May 1, 2013

  $ —        $ —        $ —        $ —        $  —        $ —       

Issuance of new equity in connection with emergence from Chapter 11

    185,000        —          —          —          450        184,550        —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at May 1, 2013

    185,000        —          —          —          450        184,550        —     

Total comprehensive income

    516,880        505,219        11,661           

Warrants exercised

    16                16        —     

Cost of shares acquired

    (19               (19 )

Stock based compensation

    1,106                1,106        —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2013

  $ 702,983      $ 505,219      $ 11,661      $  —        $ 450      $ 185,672      $ (19 )
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
          Ambac Financial Group, Inc.        
(Dollars in Thousands)   Total     Accumulated
Deficit
    Accumulated
Other
Comprehensive
Income
    Preferred
Stock
    Common
Stock
    Paid-in
Capital
    Common
Stock Held
in Treasury,
at Cost
 

Predecessor Ambac

             

Balance at January 1, 2013

  ($ 3,907,527   ($ 6,297,264   $ 625,385      $  —        $ 3,080      $ 2,172,027      ($ 410,755

Total comprehensive income

    3,523,924        3,349,049        174,875           

Stock-based compensation

    (60     (60          

Shares issued under equity plans

    60                  60   

Elimination of Predecessor Ambac Shareholder equity accounts

    383,603       2,948,275        (800,260       (3,080     (2,172,027     410,695   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at April 30, 2013

  $ —        $ —        $ —        $ —        $ —        $ —        $ —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
          Ambac Financial Group, Inc.        
(Dollars in Thousands)   Total     Accumulated
Deficit
    Accumulated
Other
Comprehensive
Income
    Preferred
Stock
    Common
Stock
    Paid-in
Capital
    Common
Stock Held
in Treasury,
at Cost
 

Predecessor Ambac

             

Balance at January 1, 2012

  ($ 3,812,975   ($ 6,039,922   $ 463,259      $  —        $ 3,080      $ 2,172,027      ($ 411,419

Total comprehensive loss

    (94,552     (256,678     162,126           

Stock-based compensation

    (664     (664          

Shares issued under equity plans

    664                  664   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2012

  ($ 3,907,527   ($ 6,297,264   $ 625,385      $  —        $ 3,080      $ 2,172,027      ($ 410,755
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

229


Table of Contents

AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Condensed Statements of Cash Flows

(Dollar Amounts in Thousands)

 

     Successor Ambac            Successor Ambac  
     Period from May  1
through

December 31, 2013
           Period from January 1
through

April 30, 2013
           Year Ended
December 31,
2013
 

Cash flows from operating activities:

                

Net income (loss)

   $ 505,219           $ 3,349,049           $ (256,678

Adjustments to reconcile net income loss to net cash used in operating activities:

                

Equity in undistributed net (income) loss of non-debtor subsidiaries

     (289,379          (603,666          250,729   

Reorganization items

     493             (2,745,180          7,215   

Junior surplus notes received from Ambac Assurance Corporation Segregated Account

     (167,020          —               —     

Net realized gains

     (2          —               —     

Decrease in current income taxes payable

     —               (1,900          —     

Share-based compensation

     1,106             —               —     

Investment income due and accrued

     (11,942          (6          9   

Decrease in other assets

     (1,677          3,182             21   

Other, net

     (28,030          (4,107          (6,334
  

 

 

        

 

 

        

 

 

 

Net cash provided by (used in) operating activities

     8,768             (2,628          (5,038
  

 

 

        

 

 

        

 

 

 

Cash flows from investing activities:

                

Proceeds from matured bonds

     14,355             —               —     

Purchases of bonds

     (42,506          —               —     

Change in short-term investments

     19,360             2,637             4,583   
  

 

 

        

 

 

        

 

 

 

Net cash (used in) provided by investing activities

     (8,791          2,637             4,583   
  

 

 

        

 

 

        

 

 

 

Cash flows from financing activities:

                

Proceeds from warrant exercise

     16             —               —     
  

 

 

        

 

 

        

 

 

 

Net cash provided by financing activities

     16             —               —     
  

 

 

        

 

 

        

 

 

 

Net cash flow

     (7          9             (455

Cash at beginning of period

     50             41             496   
  

 

 

        

 

 

        

 

 

 

Cash at end of period

   $ 43           $ 50           $ 41   
  

 

 

        

 

 

        

 

 

 

Supplemental disclosure of cash flow information:

                

Cash paid during the period for:

                

Income taxes

   $ —             $ 1,900           $ —     

 

 

230


Table of Contents

AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Note to Condensed Financial Information

(Dollar Amounts in Thousands)

The condensed financial information of Ambac Financial Group, Inc. (“Ambac” or the “Company”) for the years ended December 31, 2013 and 2012 should be read in conjunction with the consolidated financial statements of Ambac Financial Group, Inc. and Subsidiaries and the notes thereto. Investments in subsidiaries are accounted for using the equity method of accounting.

Ambac, headquartered in New York City, is a financial services holding company incorporated in the state of Delaware on April 29, 1991. On May 1, 2013 (the “Effective Date”), Ambac emerged from Chapter 11 bankruptcy protection when the Second Modified Fifth Amended Plan of Reorganization of Ambac Financial Group, Inc. (the “Reorganization Plan”) became effective. On December 26, 2013, the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) entered an order of final decree closing Ambac’s Chapter 11 case. Ambac filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court on November 8, 2010 as a result of losses incurred since the beginning of the financial crisis in 2007.

Chapter 11 Reorganization of Ambac:

The Reorganization Plan reflects a resolution of certain issues (the “Amended Plan Settlement”) among the Company, the statutory committee of creditors appointed by the United States Trustee on November 17, 2010 (the “Creditors’ Committee”), Ambac Assurance, the Segregated Account and OCI related to (i) the net operating loss carry forwards (“NOLs”) of the consolidated tax group of which the Company is the parent and Ambac Assurance is a member, (ii) certain tax refunds received in respect thereof and (iii) the sharing of expenses between the Company and Ambac Assurance. The terms of the Amended Plan Settlement are memorialized in that certain Mediation Agreement dated September 21, 2011 (the “Mediation Agreement”) among such parties. In accordance with the Amended Plan Settlement, the Company shall retain ownership of Ambac Assurance, and except as otherwise approved by OCI, the Company shall use its best efforts to preserve the use of NOLs as contemplated by the Amended Plan Settlement.

Pursuant to the Amended Plan Settlement, (i) the Company, Ambac Assurance and certain affiliates entered into an amended and restated tax sharing agreement (the “Amended TSA”), (ii) the Company, Ambac Assurance and certain affiliates entered into an expense sharing and cost allocation agreement (the “Cost Allocation Agreement”) and (iii) the Company, Ambac Assurance, the Segregated Account and OCI entered into an amendment of the Cooperation Agreement (the “Cooperation Agreement Amendment”).

The Amended TSA amended and restated the existing tax sharing agreement among the Company and its affiliates. The Amended TSA addresses certain issues including, but not limited to, the allocation and use of NOLs by the Company, Ambac Assurance and their respective subsidiaries.

The Cost Allocation Agreement provides for the allocation of costs and expenses among the Company, Ambac Assurance and certain affiliates. Additionally, the Cost Allocation Agreement requires Ambac Assurance to reimburse reasonable operating expenses incurred by the Company, subject to an annual $5,000 cap, which, during 2017, shall be reduced to a $4,000 per year cap, only with the approval by the Rehabilitator.

The Cooperation Agreement Amendment provides for the Rehabilitator to have certain rights with respect to (a) the tax positions taken by the Company in its consolidated tax return; (b) the acceptance by Ambac Assurance of the repayment of intercompany loans or the modification of the terms thereof; (c) changes by Ambac Assurance in the assumptions or vendors utilized in determining loss reserves determined in accordance

 

231


Table of Contents

AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands)

 

with Statutory Accounting Principles; and (d) changes to Ambac Assurance’s investment policy and transfer of the investment management function for Ambac Assurance’s investment portfolio.

As provided for in the Reorganization Plan, Ambac’s Amended and Restated Certificate of Incorporation and revised Bylaws became effective on the Effective Date. Pursuant to the Amended and Restated Certificate of Incorporation of Ambac, Ambac is authorized to issue 150,000,000 shares of capital stock, consisting of 130,000,000 shares of common stock, par value $0.01 per share and 20,000,000 shares of preferred stock, par value $0.01 per share. In accordance with the Reorganization Plan and the bylaws of the reorganized Company, the Board of Directors of Ambac now consists of Ambac’s Chief Executive Officer and four other Directors. Pursuant to the Reorganization Plan, Ambac distributed 45,000,000 shares of new common stock on May 1, 2013. Under the Reorganization Plan Ambac also distributed warrants to holders of allowed general unsecured claims and subordinated debt securities, which entitle such holders to acquire an additional 5,047,138 shares of new common stock of the Company at an exercise price of $16.67 per share at any time on or prior to April 30, 2023. As of December 31, 2013, 6,312 warrants were exercised, resulting in an issuance of 2,524 shares of common stock. The new common stock and warrants are listed on NASDAQ and trade under the symbols “AMBC” and “AMBCW,” respectively. All such common stock and warrants were issued without registration under the Securities Act of 1933, as amended or state securities laws, in reliance on Section 1145 of the United States Bankruptcy Code. The common stock of the Company in existence prior to the Effective Date was cancelled on the Effective Date and the holders of such stock did not receive, and will not receive, any distributions under the Reorganization Plan.

Pursuant to the Mediation Agreement, Ambac Assurance transferred $30,000 (plus accrued interest) from an escrow account to Ambac on the Effective Date. Additionally, the Segregated Account issued a Junior Surplus Note in the amount of $350,000 (recorded at the fair value of $167,020) to Ambac on the Effective Date in accordance with the Mediation Agreement. Ambac recorded such amounts received as Other income in the Condensed Statements of Total Comprehensive Income. No payment of interest on or principal of a Segregated Account Junior Surplus Note may be made until all existing and future indebtedness of the Segregated Account, including Segregated Account Surplus Notes, policy claims and claims having statutory priority have been paid in full. All payments of principal and interest on Segregated Account Junior Surplus Notes are subject to the prior approval of the OCI. If the OCI does not approve the payment of interest on the Segregated Account Junior Surplus Notes, such interest will accrue and compound annually until paid.

Also as provided for in the Reorganization Plan, Ambac’s Amended and Restated Certificate of Incorporation and revised Bylaws became effective on the Effective Date. Ambac’s Amended and Restated Certificate of Incorporation limits voting and transfer rights of stockholders in significant ways. Article IV contains voting restrictions applicable to any person owning at least 10% of Ambac’s common stock so that such person (including any group consisting of such person and any other person with whom such person or any affiliate or associate of such person has any agreement, contract, arrangement or understanding with respect to acquiring, voting, holding or disposing of Ambac’s common stock) shall not be entitled to cast votes in excess of one vote less than 10% of the votes entitled to be cast by all common stock holders, except as otherwise approved by OCI.

There are substantial restrictions on the ability to transfer Ambac’s common stock set forth in Article XII of Ambac’s Amended and Restated Certificate of Incorporation. In order to preserve certain tax benefits, subject to limited exceptions, any attempted transfer of common stock shall be prohibited and void to the extent that, as a result of such transfer (or any series of transfers of which such transfer is a part), either (i) any person or group of

 

232


Table of Contents

AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands)

 

persons shall become a holder of 5% or more of the Company’s common stock or (ii) the percentage stock ownership interest in Ambac of any holder of 5% or more of the Company’s common stock shall be increased (a “Prohibited Transfer”). These restrictions shall not apply to an attempted transfer if the transferor or the transferee obtains the written approval of Ambac’s Board of Directors to such transfer. A purported transferee of a Prohibited Transfer shall not be recognized as a stockholder of Ambac for any purpose whatsoever in respect of the securities which are the subject of the Prohibited Transfer (the “Excess Securities”). Until the Excess Securities are acquired by another person in a transfer that is not a Prohibited Transfer, the purported transferee of a Prohibited Transfer shall not be entitled with respect to such Excess Securities to any rights of stockholders of Ambac, including, without limitation, the right to vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any. Once the Excess Securities have been acquired in a transfer that is not a Prohibited Transfer, the securities shall cease to be Excess Securities. If the Board determines that a transfer of securities constitutes a Prohibited Transfer then, upon written demand by Ambac, the purported transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the purported transferee’s possession or control, together with any distributions paid by Ambac with respect to such Excess Securities, to an agent designated by Ambac. Such agent shall thereafter sell such Excess Securities and the proceeds of such sale shall be distributed as set forth in the Amended and Restated Certificate of Incorporation. If the purported transferee of a Prohibited Transfer has resold the Excess Securities before receiving such demand, such person shall be deemed to have sold the Excess Securities for Ambac’s agent and shall be required to transfer to such agent the proceeds of such sale, which shall be distributed as set forth in the Amended and Restated Certificate of Incorporation.

As of the Effective Date, the Company was generally discharged and released from all pre-Effective Date debts, liabilities, claims, causes of action and interests in accordance with the provisions of the Reorganization Plan. Holders of claims and equity interests are also generally barred from commencing or continuing any action or proceeding relating to such claims, causes of action or interests. The Reorganization Plan also provides for broad exculpation and releases of the Company, Ambac Assurance, the Segregated Account, OCI, the Rehabilitator, the board of directors and board committees of the Company and Ambac Assurance, all individual directors, officers and employees of the Company and Ambac Assurance, the Creditors’ Committee and the individual members thereof, and each of the respective representatives of such parties, for actions or omissions that occurred on or prior to the Effective Date.

Reorganization:

Entities operating in bankruptcy and expecting to reorganize under Chapter 11 of the Bankruptcy Code are subject to the additional accounting and financial reporting guidance under the Reorganization Topic of the Accounting Standards Codification (the “ASC”). While the Reorganization Topic of the ASC provides specific guidance for certain matters, other portions of US GAAP continue to apply so long as the guidance does not conflict with the Reorganization Topic of the ASC. This accounting literature provides guidance for periods subsequent to a Chapter 11 filing, among other things, the presentation of liabilities that are and are not subject to compromise by the Bankruptcy Court proceedings, as well as the treatment of interest expense and presentation of costs associated with the proceedings. For the purpose of presenting an entity’s financial condition, the financial statements for periods including and after filing the Chapter 11 petition shall distinguish transactions and events that are directly associated with the reorganization from the ongoing operations of the business. As described below, the accompanying consolidated financial statements present Ambac’s pre-petition debt within Liabilities subject to compromise.

 

233


Table of Contents

AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands)

 

Under the Reorganization Topic of the ASC, the Company determined that fresh start financial statement reporting was to be applied upon our emergence from Chapter 11 because (i) the reorganization value of the emerging entity was less than total post-petition liabilities and allowed claims, and (ii) the holders of existing voting shares immediately before the confirmation of the Reorganization Plan received less than 50% of the voting shares of the emerging entity. Specifically, fresh start reporting was applied upon confirmation of the Reorganization Plan by the Bankruptcy Court and the satisfaction of the remaining material contingencies necessary to complete implementation of the Reorganization Plan. All conditions required for the adoption of fresh start reporting were satisfied by the Company on April 30, 2013 (“Fresh Start Reporting Date”). Adopting fresh start reporting results in a new reporting entity with no beginning retained earnings or accumulated deficit. For periods after the Fresh Start Reporting Date the Company will be referred to as Successor Ambac, whereas for all periods as of and preceding the Fresh Start Reporting Date the Company will be referred to as Predecessor Ambac. Presentation of information for Successor Ambac represents the financial position and results of operations of Successor Ambac and is not comparable to our previously issued financial statements. The implementation of fresh start reporting is further described in Note 3 to the Consolidated Financial Statements located in Part II, Item 8 of this Form 10-K.

Reorganization items:

Professional advisory fees and other costs directly associated with our reorganization are reported separately as reorganization items. Reorganization items also include adjustments to reflect the carrying value of certain pre-petition liabilities at their allowable claim amounts, gain on the settlement of liabilities subject to compromise and fresh start reporting adjustments. The reorganization items in the Consolidated Statements of Total Comprehensive Income consisted of the following items:

 

     Successor Ambac      Predecessor Ambac  
     Eight Months Ended
December 31, 2013
     Four Months Ended
April 30, 2013
    Year Ended
December 31, 2012
 

U.S. Trustee fees

   $ 33       $ 23      $ 50   

Professional fees

         460         4,483        7,165   

Gain from cancellation and satisfaction of Predecessor Ambac debt

     —          (1,521,435     —    

Fresh start reporting adjustments

     —          (1,228,251     —    
  

 

 

    

 

 

   

 

 

 

Total reorganization items

   $ 493       ($ 2,745,180   $ 7,215   
  

 

 

    

 

 

   

 

 

 

Liabilities Subject to Compromise:

In accordance with the Reorganizations Topic of the ASC, following the date Ambac filed its Chapter 11 petition, we discontinued recording interest expense on debt classified as Liabilities subject to compromise, which amounted to $239,468 through April 30, 2013. The stated contractual interest on debt classified as Liabilities subject to compromise amounted to $27,572 for the four months ended April 30, 2013 and $85,371 for the year ended December 31, 2012. As required by the Reorganizations Topic of the ASC, the amount of the Liabilities subject to compromise represented our estimate of known or potential pre-petition claims to be addressed in connection with the bankruptcy.

 

234


Table of Contents

AMBAC FINANCIAL GROUP, INC.

SCHEDULE II - CONDENSED FINANCIAL INFORMATION

OF REGISTRANT (PARENT COMPANY ONLY)

Notes to Consolidated Financial Statements

(Dollar Amounts in Thousands)

 

At the Effective Date, all liabilities subject to compromise were settled through the issuance of common stock or warrants to purchase common stock. As such, as of the Effective Date, no liabilities remain subject to compromise. The liabilities subject to compromise at December 31, 2012 consisted of the following:

 

     Predecessor Ambac –
December 31, 2012
 

Debt obligations and accrued interest payable

   $ 1,690,312   

Other

     14,592 (1)  
  

 

 

 

Consolidated liabilities subject to compromise

     1,704,904   

Payable to non-debtor subsidiaries

     35   
  

 

 

 

Debtor’s Liabilities subject to compromise

   $ 1,704,939   
  

 

 

 

 

(1) Primarily comprises an allowed general unsecured claim of $14,007 provided to Ambac’s landlord in connection with a settlement agreement relating to claims under its headquarters lease.

 

235


Table of Contents

AMBAC FINANCIAL GROUP, INC. AND SUBSIDIARIES

SCHEDULE IV - REINSURANCE

Eight Months Ended December 31, 2013, Four Months Ended April 30, 2013 and Year Ended December 31, 2012

(Dollar Amounts in Thousands)

 

Insurance Premiums Written

   Gross
Amount
    Ceded to Other
Companies
    Assumed from
Other
Companies
     Net
Amount
    Percentage of
Amount
Assumed to
Net
 

Successor Ambac —Eight months ended December 31, 2013

   ($ 80,309   ($ 7,810   $ —         ($ 72,499     n.m.   

Predecessor Ambac —Four months ended April 30, 2013

   ($ 14,125   ($ 1,098   $ —         ($ 13,027     n.m.   

Predecessor Ambac —Year ended December 31, 2012

   ($ 277,508   ($ 23,371   $ —         ($ 254,137     n.m.   

 

236


Table of Contents

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  AMBAC FINANCIAL GROUP, INC.
Dated: March 3, 2014   By:  

/ S /    D AVID T RICK        

  Name:   David Trick
  Title:   Chief Financial Officer and Treasurer

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

/ S /    D IANA N. A DAMS

  President
and Chief Executive Officer
and Director (Principal
Executive Officer)
  March 3, 2014

/ S /    D AVID T RICK

  Senior Managing Director and
Chief Financial Officer
(Principal Financial Officer)
  March 3, 2014

/ S /    R OBERT B. E ISMAN

  Senior Managing Director and
Chief Accounting Officer
(Principal Accounting Officer)
  March 3, 2014

/ S /    E UGENE M. B ULLIS *

  Director   March 3, 2014

/ S /    V ICTOR M ANDEL *

  Director   March 3, 2014

/ S /    J EFFREY S. S TEIN *

  Director   March 3, 2014

/ S /    N ADER T AVAKOLI *

  Director   March 3, 2014
*B Y     / S /    S TEPHEN M. K SENAK   Attorney-in-fact   March 3, 2014

 

237

Exhibit 3.2

A MENDED B Y -L AWS

O F

A MBAC F INANCIAL G ROUP , I NC .

ARTICLE I

O FFICES

Section 1.01. Registered Office . The registered office of Ambac Financial Group, Inc. (the “ Corporation ”) in the State of Delaware shall be at the principal office of The Corporation Trust Company in the City of Wilmington, County of New Castle, and the registered agent in charge thereof shall be The Corporation Trust Company.

Section 1.02. Other Offices . The Corporation may also have an office or offices at any other place or places within or without the State of Delaware as the Board of Directors of the Corporation (the Board ”) may from time to time determine or the business of the Corporation may from time to time require.

ARTICLE II

M EETINGS O F S TOCKHOLDERS

Section 2.01. Place of Meetings. Meetings of stockholders shall be held at any place within or outside the State of Delaware as designated by the Board. The Board may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the DGCL ”). In the absence of any such designation or determination, stockholders' meetings shall be held at the Corporation's principal executive office.

Section 2.02. Annual Meetings . The annual meeting of stockholders of the Corporation for the election of directors of the Corporation ( Directors ”), and for the transaction of such other business as may properly come before such meeting, shall be held at such place, if any, on a date and at a time as shall be fixed by the Board and designated in the notice or waiver of notice of such annual meeting. At the annual meeting, the stockholders shall elect Directors and transact such other business as may properly be brought at the meeting. Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only as provided in Section 2.14.


Section 2.03. Special Meetings .

 

  (a) Special meetings of stockholders for any purpose or purposes may be called only by (i) the Board or the Chairman of the Board, the Chief Executive Officer of the Corporation, the President of the Corporation, or (ii) the Secretary of the Corporation (the " Secretary ") upon the written request or requests submitted in accordance with, and in the form and containing the information required by, this Section 2.03 (a Proper Special Meeting Request ”), by one or more holders of record of shares of common stock of the Corporation (“ Shares ”) representing, collectively, 25% or more of the voting power of the then issued and outstanding Shares (the Requisite Percentage ”). Any such meeting shall be held on a date, place, if any, and at a time as shall be designated by the Board.

 

  (b) Holders of record of Shares representing, collectively, the Requisite Percentage shall have the right to request that the Secretary call a special meeting of stockholders for the election of Directors or Other Business only if the item or items of business to be transacted at the requested special meeting are a proper subject for stockholder action at a special meeting of stockholders under applicable law and only upon compliance by the requesting stockholders with the provisions of this Section 2.03. In the case of a special meeting of stockholders called by the Secretary following receipt of a written request or requests from holders of record holding, collectively, the Requisite Percentage in accordance with Section 2.03(a)(ii), the date of such special meeting, as fixed by the Board, shall not be fewer than 45 days nor more than 90 days after the first date by which Proper Special Meeting Request(s) by holders of record holding, collectively, the Requisite Percentage have been received by the Secretary at the Corporation's principal executive office in accordance with this Section 2.03. Nothing in this Section 2.03 shall be deemed or construed to give any stockholder a right to fix the date, time, or place of, or to fix any record date for, any special meeting of stockholders.

 

  (c) To be in proper form and constitute a Proper Special Meeting Request, a special meeting request from any stockholder or stockholders pursuant to Section 2(a)(ii) shall be in writing, shall be submitted by a holder of record of Shares, and shall set forth and describe in fair, accurate, and material detail:

 

  (i) the purpose or purposes for which the meeting is to be called; and

 

  (ii) (A) all Stockholder Information as to (x) each stockholder of record making a special meeting request pursuant to Section 2.03(a)(ii), (y) the Beneficial Owner or Beneficial Owners, if different, on whose behalf such request is given, and (z) any affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act, or its successor provision) of such stockholder(s) of record or Beneficial Owner(s) (in each case, a “ Requesting Person ”);

(B) all Disclosable Interests as to each Requesting Person;

 

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(C) all Proposed Nomination Information as to each Proposed Nominee, if a purpose of the special meeting is to elect Directors and the Requesting Person is proposing any Proposed Nominee(s);

(D) all Proposed Business Information, if a purpose of the special meeting is the consideration of any Other Business;

(E) a Holder of Record Representation;

(F) a Proxy Solicitation Representation by or on behalf of each Requesting Person.

The Corporation may require any Proposed Nominee to furnish such other information as it may reasonably require to determine (1) the eligibility of any Proposed Nominee to serve as a Director, and (2) whether such Proposed Nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly disclosed corporate governance guideline or committee charter of the Corporation.

For purposes of this Section 2.03, capitalized terms used herein but not otherwise defined in this Section 2.03 shall have such meanings as defined in Section 2.14(d); provided, however, that for purposes of this Section 2.03, (x) the term “ Requesting Person ” shall be substituted for the term “ Proposing Person ” in all places it appears in Section 2.14(d), (y) references to the date or dates as of which updated or supplemental information is required to be true and correct pursuant to Section 2.14 shall refer to the date or dates as of which updated or supplemental information is required to be true and correct pursuant to Section 2.03(d), and (z) references to the stockholder's notice required by Section 2.14(a) or Section 2.14(b) shall refer to special meeting requests pursuant to Section 2.03(a)(ii).

 

  (d) In the case of a special meeting of stockholders called pursuant to Section 2.03(a)(ii), each Requesting Person shall further update and supplement such Requesting Person’s special meeting request(s) so that:

 

  (i) the information provided or required to be provided in such special meeting request(s) pursuant to Section 2.03(c) shall be updated and supplemented to be true and correct as of:

 

  (A) the record date for the determination of stockholders entitled to notice of the special meeting;

 

  (B) if such record date is more than 15 Business Days before the special meeting, as of the date that is 10 Business Days before the special meeting; and

 

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  (C) as of the date that is 10 Business Days before the date scheduled for the convening of any postponed special meeting or the reconvening of any adjourned special meeting.

 

  (ii) The time that such updated and supplemental information must be delivered to, or mailed to and received by, the Secretary at the Corporation's principal executive office is as follows:

 

  (A) in the case of information that is required to be updated and supplemented pursuant to Section 2.03(d)(i)(A) to be true and correct as of the record date for the determination of stockholders entitled to notice of the special meeting, not later than the later of (x) 5 Business Days after such record date or (y) 5 Business Days after the Public Announcement of such record date;

 

  (B) in the case of information that is required to be updated and supplemented pursuant to Section 2.03(d)(i)(B) to be true and correct as of the date that is 10 Business Days before the special meeting, not later than 8 Business Days before the special meeting; and

 

  (C) in the case of information that is required to be updated and supplemented pursuant to Section 2.03(d)(i)(C) to be true and correct as of the date that is 10 Business Days before the date scheduled for the convening of any postponed special meeting or the reconvening of any adjourned special meeting, not later than 8 Business Days before the date scheduled for such convening or reconvening of the special meeting; provided, however, if it is not practicable to provide such updated and supplemental information not later than 8 Business Days before the date scheduled for such convening or reconvening, on the first practicable date before any such convening or reconvening.

 

  (e)

The Secretary shall not accept, and shall consider ineffective, a special meeting request from a stockholder (i) that does not comply with this Section 2.03, (ii) that relates to an item of business to be transacted at the requested special meeting that is not a proper subject for stockholder action under applicable law, or (iii) if the business proposed to be conducted at the requested special meeting as set forth in such special meeting request is identical to or substantially similar to an item of business that will be submitted for stockholder approval or consideration at any meeting of stockholders to be held on or before the 90th day after the first date by which Proper Special Meeting Request(s) by holders of record of Shares representing, collectively, the Requisite Percentage have been received by the Secretary at the Corporation's principal executive office in accordance with this Section 2.03. The Board shall have the power, if the facts warrant, to determine whether or not a written request or requests have or have not been submitted in accordance with, and in the form and containing the information required by, this

 

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  Section 2.03, and if such written request or requests have not been submitted in accordance with, and in the form and containing the information required by, this Section 2.03, to determine that such written request or requests do not constitute Proper Special Meeting Requests as required by this Section 2.03. In addition to the requirements of this Section 2.03, each Requesting Person shall comply with all requirements of applicable law, including all requirements of the Exchange Act, with respect to any special meeting request.

 

  (f) Anything in Section 2.14 to the contrary notwithstanding, in the case of a special meeting of stockholders called pursuant to Section 2.03(a)(ii), if a purpose of such special meeting is to elect Directors to the Board, and a Requesting Person has included in such Requesting Person’s Proper Special Meeting Request the name of each Proposed Nominee the Requesting Person proposes to nominate at the requested special meeting for election to the Board, together with all other information required by Section 2.03(c), and so long as the Requesting Person has otherwise complied with this Section 2.03, then the Requesting Person’s Proper Special Meeting Request shall be deemed to be, and shall substitute for, the notice contemplated by Section 2.14(b) and such Requesting Person shall be deemed to have given timely notice of such nominations in the proper form for purposes of Section 2.14(b) and otherwise to have complied with the notice procedures set forth in Section 2.14(b)(ii), so long as such Requesting Person provides any updates or supplements to such Proper Special Meeting Request at such times and in the forms required by Section 2.03(d).

 

  (g) Except as expressly provided in, and in accordance with, this Section 2.03, stockholders shall not be permitted to call or cause any officer of the Corporation to call a special meeting of stockholders for the election of Directors or any Other Business. As provided in Section 2.05, the election of Directors and any Other Business may be conducted at a special meeting of stockholders only if such business is brought before the meeting pursuant to the Corporation’s notice of meeting pursuant to Section 2.05. Anything in this Section 2.03 to the contrary notwithstanding, in the case of a special meeting of stockholders called pursuant Section 2.03(a)(ii), the Board may submit its own proposal or proposals, including nominations of persons for election to the Board if election of Directors is a purpose of the special meeting, for consideration at such special meeting. At the direction of the Board, such proposal or proposals shall be included in the notice for the special meeting as a purpose or purposes for which the meeting is called. In the case of a special meeting of stockholders called pursuant to this Section 2.03 (whether by the Board, the Chairman of the Board, the Chief Executive Officer, or the President or by the Secretary following receipt of a written request or requests from holders of record of Shares representing, collectively, the Requisite Percentage in accordance with Section 2.03(a)(ii)), if a purpose of such special meeting is to elect Directors to the Board, then stockholders (other than the requesting stockholders who have properly made nominations pursuant to Section 2.03(f) by including such nominations in a Proper Special Meeting Request) may nominate additional candidates for election as Directors only in accordance and subject to compliance with the procedures set forth in Section 2.14(b).

 

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  (h) A stockholder may revoke a special meeting request by submitting a written revocation of a special meeting request delivered to, or mailed to and received by, the Secretary at the Corporation's principal executive office at any time before the special meeting (a “ Demand Revocation ”). The Board shall have the sole discretion to determine whether or not to proceed with the special meeting if after the Secretary's receipt of Proper Special Meeting Request(s) from the holders of record holding, collectively, the Requisite Percentage (i) any Demand Revocation(s) are delivered to or received by the Secretary, or (ii) at any time before the record date for the determination of stockholders entitled to vote at the special meeting, a Requesting Person updates or supplements such Requesting Person's special meeting request as required by Section 2.03(d), which updated or supplemented request evidences or indicates a reduction in the voting power of the Shares held of record by such Requesting Person, and as a result of such Demand Revocation(s), update, or supplementation, there no longer are unrevoked Proper Special Meeting Requests by holders of record holding, collectively, the Requisite Percentage as required by this Section 2.03.

Section 2.04. Fixing Date for Determination of Stockholders of Record .

 

  (a) Meetings of Stockholders . In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 60 days nor less than 10 days before the date of such meeting. If the Board so fixes a record date for determining the stockholders entitled to notice of any meeting of stockholders, such date shall also be the record date for determining the stockholders entitled to vote at such meeting, unless the Board determines, at the time it fixes the record date for determining the stockholders entitled to notice of such meeting, that a later date on or before the date of the meeting shall be the record date for determining the stockholders entitled to vote at such meeting. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of and to vote at any meeting of stockholders or any adjournment thereof shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to receive notice of such adjourned meeting the same or an earlier date as that fixed for determining the stockholders entitled to vote at such adjourned meeting in accordance with the foregoing provisions of this subsection (a) of this Section 2.04.

 

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  (b) Dividends and Distributions . In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix, in advance, a record date. Such record date shall not precede the date upon which the resolution fixing such record date is adopted, and shall not be more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be the close of business on the day on which the Board adopts the resolution relating thereto.

Section 2.05. Notice of Stockholder Meetings .

 

  (a) General . Except as otherwise provided by law, written notice of each annual or special meeting of stockholders, stating the place, if any, date, and time of such meeting, as well as the record date for determining stockholders entitled to vote at the meeting (if such record date is different from the record date for determining stockholders entitled to notice of the meeting), and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given to each stockholder entitled to notice of such meeting, not less than 10 days nor more than 60 days before the date of the meeting. Notice of special meetings of stockholders shall also include the purpose or purposes for which the meeting is called. Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice. The Board, acting by resolution, may postpone and reschedule any previously scheduled annual or special meeting of stockholders. Written notice of any meeting may be given to stockholders by personal delivery, mail, or, with the consent of the stockholder entitled to receive notice, by means of electronic transmission as provided in this Section 2.05(a). If mailed, such notice shall be delivered by postage prepaid envelope directed to each stockholder at such stockholder's address as it appears in the records of the Corporation and shall be deemed given when deposited in the United States mail. Notice given by electronic transmission pursuant to this Section 2.05(a) shall be deemed given: (i) if by facsimile telecommunication, when directed to a facsimile telecommunication number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder. An affidavit of the Secretary or an assistant secretary, or of the transfer agent or other agent, of the Corporation that the notice has been given by personal delivery, by mail, or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

 

  (b)

Adjournments . When any meeting is convened, the presiding officer of the meeting may adjourn or recess the meeting if (i) no quorum is present for the transaction of business, (ii) the Board determines that adjournment is necessary or

 

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  appropriate to enable the stockholders to consider fully information which the Board determines has not been made sufficiently or timely available to stockholders, or (iii) the Board or presiding officer determines that adjournment is otherwise in the best interests of the Corporation. Whenever a meeting of stockholders, annual or special, is adjourned to another date, time or place, notice need not be given of the adjourned meeting if the date, time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote thereat. At the meeting following the recess or adjournment of the original meeting, any business may be transacted which might have been transacted at such original meeting.

Section 2.06. Waiver of Notice . Notice of any annual or special meeting of stockholders need not be given to any stockholder who files a written waiver of notice with the Secretary, signed by the person entitled to notice whether before or after such meeting, or by electronic transmission that either sets forth or is submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. Neither the business to be transacted at, nor the purpose of, any meetings of stockholders need to be specified in any written waiver of notice thereof. Attendance of a stockholder at a meeting, in person or by proxy, shall constitute a waiver of notice of such meeting, except when such stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the grounds that the notice of such meeting was inadequate or improperly given.

Section 2.07. Postponement or Cancellation of Meeting. Any previously scheduled meeting of the stockholders may be postponed and rescheduled, and, unless the Certificate of Incorporation of the Corporation (the “ Certificate of Incorporation ”) otherwise provides, any special meeting of stockholders, other than special meetings called pursuant to Section 2.03(a)(ii), may be canceled by resolution of the Board upon public notice given prior to the date previously scheduled for such meeting.

Section 2.08. Quorum . Except as otherwise required by law or the Certificate of Incorporation, the holders of record of a majority of the voting power of the Shares entitled to vote thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders, whether annual or special. If, however, such quorum shall not be present in person or by proxy at any meeting of stockholders, the presiding officer at the meeting in accordance with Section 2.05(b) hereof or the stockholders entitled to vote thereat may adjourn the meeting from time to time until a quorum shall be present in person or by proxy. To the fullest extent permitted by law, when a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any stockholder.

Section 2.09. Voting . Except as otherwise provided in the Certificate of Incorporation, each stockholder shall be entitled to one vote for each Share held of record by such stockholder. Unless a greater number of affirmative votes is required by the Certificate of Incorporation, these By-laws, the rules or regulations of any stock exchange upon which the equity securities of the Corporation are listed for trading, or as otherwise required by law, if a quorum exists at any

 

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meeting of stockholders, stockholders shall have approved any matter, other than the election of Directors, if the votes cast by stockholders present in person or represented by proxy at the meeting and entitled to vote on the matter in favor of such matter exceed the votes cast by such stockholders against such matter. Directors shall be elected by a plurality of the votes cast. If any holders of any class or series of the Corporation's capital stock shall be entitled to more or less than one vote for any share of capital stock, on any matter for which such holders are entitled to vote, every reference in these By-laws to a majority or other proportion of stock shall refer to such majority or other proportion of the votes of such stock.

Section 2.10. Proxies . Each stockholder entitled to vote at a meeting of stockholders or to express, in writing, consent to or dissent from any action of stockholders without a meeting may authorize another person or persons to act for such stockholder by proxy. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, the following shall constitute valid means by which a stockholder may grant such authority: (a) a stockholder may authorize another person or persons to act for such stockholder as proxy by the stockholder or his or her authorized officer, director, employee or agent signing a writing or causing such person's signature to be affixed to such a writing by any reasonable means including, but not limited to, by facsimile signature; and (b) a stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing an electronic transmission to the person or persons who will be the holder of the proxy or to an agent of the proxyholder(s) duly authorized by such proxyholder(s) to receive such transmission; provided, however, that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. If it is determined that any such electronic transmission is valid, the inspectors or, if there are no inspectors, such other persons making that determination, shall specify the information upon which they relied. No proxy shall be voted or acted upon more than three years from its date, unless the proxy provides for a longer period. Each proxy shall be delivered to the inspectors of election prior to or at the meeting. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing a subsequent duly executed proxy with the Secretary. Any copy, facsimile telecommunication, or other reliable reproduction of a writing or electronic transmission authorizing a person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or electronic transmission for any and all purposes for which the original writing or electronic transmission could be used; provided, however, that such copy, facsimile telecommunication, or other reproduction shall be a complete reproduction of the entire original writing or electronic transmission.

Section 2.11. Presiding Officer and Secretary at Meetings . At any meeting of stockholders, the Chairman, or in his absence, the President, or if neither such person is available, then a person designated by the Board, shall preside at and act as the presiding officer of the meeting. The Secretary, or in his or her absence a person designated by the presiding officer, shall act as secretary of the meeting. The presiding officer of any meeting of stockholders shall determine the order of business and the procedures at the meeting, including regulation of the manner of voting, the conduct of discussion, and the propriety of any proposal brought before the meeting. The Board may adopt by resolution rules, regulations, and

 

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procedures for the conduct of any meeting of stockholders. Except to the extent inconsistent with any such rules, regulations, and procedures, the presiding officer of the meeting shall have the right and authority to prescribe such rules, regulations, and procedures for the conduct of the meeting (which need not be in writing) and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the polls for each matter upon which stockholders will vote at the meeting.

Section 2.12. Inspectors of Election . The votes at each meeting of stockholders shall be supervised by not less than two inspectors of election who shall decide all questions respecting the qualification of voters, the validity of the proxies and the acceptance or rejection of votes. The Board shall, in advance of any meeting of stockholders, appoint two or more inspectors of election to act at the meeting and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that there are less than two inspectors present and acting at any meeting, the presiding officer shall appoint an additional inspector or inspectors so that there shall always be at least two inspectors to act at the meeting. Each inspector, before entering upon the discharge of this or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. Notwithstanding the foregoing, the presiding officer may review all determinations made by the inspectors, and in so doing the presiding officer shall be entitled to exercise his or her sole judgment and discretion and he or she shall not be bound by any determinations made by the inspectors. All determinations by the inspectors and, if applicable, the presiding officer, shall be subject to further review by any court of competent jurisdiction.

Section 2.13. List of Stockholders . The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list will reflect the stockholders entitled to vote as of the 10th day before the meeting date, arranged in alphabetical order, and showing the address of each stockholder and the number of Shares registered in the name of each stockholder. Nothing contained in this Section shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least 10 days prior to the meeting at the Corporation's discretion, either (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then such list shall also be open

 

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to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. The stock ledger shall be the only evidence of the identity of the stockholders entitled to examine such list.

Section 2.14. Submission of Nominations and Proposed Business For Consideration at Meetings of Stockholders .

 

  (a) Annual Meetings of Stockholders .

 

  (i) Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders may be made for consideration and voting at an annual meeting of stockholders only (A) pursuant to the Corporation's notice of meeting (or any supplement thereto), (B) by or at the direction of the Board, or (C) by any stockholder (x) who was a stockholder of record (and, with respect to any Beneficial Owner, if different, on whose behalf such business is proposed or such nomination or nominations are made, only if such Beneficial Owner was the Beneficial Owner of Shares) both at the time the notice provided for in Section 2.14(a)(ii) and Section 2.14(a)(iii) is delivered to the Secretary and on the record date for the determination of stockholders entitled to vote at the meeting; (y) who is entitled to vote at the meeting upon such election of Directors or upon such business, as the case may be; and (z) who complies with the notice procedures set forth in Section 2.14(a)(ii) and Section 2.14(a)(iii). The foregoing provisions of clause (C) provide the exclusive means by which a stockholder may make nominations of persons for election to the Board to be considered and voted upon by the stockholders at an annual meeting of stockholders. Except for proposals properly made in accordance with Rule 14a-8 under the Exchange Act, and the rules and regulations thereunder, and included in the notice of meeting given by or at the direction of the Board, the foregoing provisions of clause (C) provide the exclusive means by which a stockholder may propose business to be brought before an annual meeting of stockholders. In addition, for business (other than the nomination of persons for election to the Board) to be properly brought before an annual meeting by a stockholder, such business must be a proper matter for stockholder action pursuant to the Certificate of Incorporation, these By-laws, and applicable law.

 

  (ii)

For nominations or other business to be properly brought before an annual meeting of stockholders by a stockholder, the stockholder (A) must have given timely notice thereof in writing and in proper form to the Secretary at the Corporation's principal executive office, and (B) must provide any updates or supplements to such notice at such times and in the forms required by this Section 2.14. To be timely, a stockholder's notice relating to an annual meeting shall be delivered to, or mailed to and received by, the Secretary at the Corporation's principal executive office not later than

 

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  the close of business on the 60th day, and not earlier than the close of business on the 90th day, before the date of the one-year anniversary of the immediately preceding year's annual meeting; provided, however, that if the date of the annual meeting is more than 30 days before, or more than 30 days after, such anniversary date, notice by the stockholder must be so delivered, or mailed and received, not earlier than the close of business on the 90th day before such annual meeting and not later than the close of business on the later of (x) the 60th day before such annual meeting or (y) the 15th day following the day on which Public Announcement of the date of such meeting is first made by the Corporation. In no event shall the Public Announcement of an adjournment or postponement of an annual meeting of stockholders commence a new time period (or extend any time period) for the giving of a stockholder's notice as described in this Section 2.14(a)(ii).

 

  (iii) To be in proper form for purposes of this Section 2.14, a stockholder's notice to the Secretary (whether pursuant to this Section 2.14(a) or Section 2.14(b)) must be submitted by a holder of record of Shares and set forth and describe in fair, accurate, and material detail:

 

  (A) all Stockholder Information as to each Proposing Person;

 

  (B) all Disclosable Interests as to each Proposing Person;

 

  (C) all Proposed Nomination Information as to each Proposed Nominee, if the notice pertains to a Proposed Nominee;

 

  (D) all Proposed Business Information, if the notice relates to any Other Business;

 

  (E) a Holder of Record Representation; and

 

  (F) a Proxy Solicitation Representation by or on behalf of each Proposing Person.

 

  (iv) Notwithstanding anything in the second sentence of Section 2.14(a)(ii) to the contrary, if (A) the number of Directors to be elected to the Board at an annual meeting is increased after the Corporation has made Public Announcement of the number of Directors to be elected at such meeting or the size of the Board is increased, and (B) there is no Public Announcement by the Corporation naming all persons the Board nominated for Director or specifying the size of the increased Board at least 75 days before the one-year anniversary of the preceding year's annual meeting, then a stockholder's notice required by this Section 2.14 shall also be considered timely, but only with respect to Proposed Nominees for any new positions created by such increase, if it shall be delivered to, or mailed to and received by, the Secretary at the Corporation's principal executive office not later than the close of business on the 15th day following the day on which Public Announcement of such increase is first made by the Corporation.

 

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  (v) Only such persons who are nominated in accordance with the procedures and other provisions set forth in Section 2.14(a) (expressly including those persons nominated by or at the direction of the Board) shall be eligible to be elected at an annual meeting of stockholders to serve as Directors. Only such business shall be conducted at an annual meeting of stockholders as shall have been brought before the meeting in accordance with the procedures and other provisions set forth or referred to in Section 2.14(a). Except as otherwise provided by applicable law, the presiding officer of an annual meeting of stockholders shall have the power and duty (A) if the facts warrant, to determine that a nomination or any business proposed to be brought before the annual meeting was not made or was not proposed, as the case may be, in accordance with the procedures set forth in this Section 2.14(a), and (B) if any proposed nomination or business was not made or was not proposed, as the case may be, in compliance with this Section 2.14(a), to declare that such nomination shall be disregarded or that such proposed business shall not be transacted.

 

  (b) Additional Nominations In Connection With Special Meetings Of Stockholders At Which Directors Are To Be Elected .

 

  (i) Nominations of persons for election to the Board may be made for consideration and voting at a special meeting of stockholders at which Directors are to be elected pursuant to the Corporation's notice of meeting only (A) by or at the direction of the Board or (B) if a purpose for such meeting as stated in the Corporation's notice for such meeting is the election of one or more Directors, by any stockholder (x) who was a stockholder of record (and, with respect to any Beneficial Owner, if different, on whose behalf such nomination or nominations are made, only if such Beneficial Owner was the Beneficial Owner of Shares) both at the time the notice provided for in Section 2.14(b)(ii) is delivered to the Secretary and on the record date for the determination of stockholders entitled to vote at the special meeting; (y) who is entitled to vote at the meeting in such election; and (z) who complies with the notice procedures set forth in Section 2.14(b)(ii); provided, however, that a stockholder may nominate persons for election at a special meeting of stockholders only to such position(s) as specified in the Corporation's notice of the meeting.

 

  (ii)

If a special meeting of stockholders has been called in accordance with Section 2.03 for the purpose of electing one or more Directors to the Board, then for nominations of Proposed Nominees for election to the Board to be properly brought before such special meeting by a stockholder pursuant to Section 2.14(b)(i)(B), the stockholder (A) must have given timely notice thereof in writing and in the proper form to the Secretary at the Corporation's principal executive office, and (B) must provide any

 

13


  updates or supplements to such notice at such times and in the forms required by this Section 2.14. To be timely, a stockholder’s notice relating to a special meeting of stockholders shall be delivered to, or mailed to and received by, the Secretary at the Corporation's principal executive office not earlier than the close of business on the 90th day before such special meeting and not later than the close of business on the later of (x) the 60th day before such special meeting or (y) the 15th day following the day on which Public Announcement is first made by the Corporation of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall the Public Announcement of an adjournment or postponement of a special meeting of stockholders commence a new time period (or extend any time period) for the giving of a stockholder's notice as described in this Section 2.14(b)(ii). To be in proper form for purposes of this Section 2.14(b), such notice shall set forth the information required by clauses (A), (B), (C), (E), and (F) of Section 2.14(a)(iii). For the avoidance of doubt, notice of Proposed Nominees for election to the Board included in a stockholder request for a special meeting of stockholders submitted in accordance with Sections 2.03(a)(ii) and 2.03(c) shall be deemed timely and in proper form as set forth in Section 2.03(f).

 

  (iii) Only such persons who are nominated in accordance with the procedures and other provisions set forth in this Section 2.14(b) (expressly including those persons nominated by or at the direction of the Board) shall be eligible to be elected at a special meeting of stockholders to serve as Directors. Except as otherwise provided by applicable law, the presiding officer of a special meeting of stockholders shall have the power and duty (A) if the facts warrant, to determine that a nomination proposed to be made at the special meeting was not made in accordance with the procedures set forth in this Section 2.14(b), and (B) if any proposed nomination was not made in compliance with this Section 2.14(b), to declare that such nomination shall be disregarded.

 

  (c) General .

 

  (i) A stockholder providing notice of nominations of Proposed Nominees for election to the Board at an annual or special meeting of stockholders or notice of business proposed to be brought before an annual meeting of stockholders shall further update and supplement such notice so that all the information required to be provided in such notice pursuant to Section 2.14(a)(iii) (including, in the case of notice of nominations of Proposed Nominees in connection with a special meeting of stockholders, the information required to be provided in such notice pursuant to Section 2.14(b)(i)) shall be true and correct as of:

 

  (A) the record date for the determination of stockholders entitled to notice of the meeting;

 

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  (B) if such record date is more than 15 Business Days before the meeting, then as of the date that is 10 Business Days before the meeting; and

 

  (C) as of the date that is 10 Business Days before the date scheduled for the convening of any postponed meeting or the reconvening of any adjourned meeting.

 

  (ii) The time that such updated and supplemental information must be delivered to, or mailed to and received by, the Secretary at the Corporation's principal executive office is as follows:

 

  (A) in the case of information that is required to be updated and supplemented pursuant to Section 2.14(c)(i)(A) to be true and correct as of the record date for the determination of stockholders entitled to notice of the meeting, not later than the later of (x) 5 Business Days after such record date or (y) 5 Business Days after the Public Announcement of such record date; and

 

  (B) in the case of information that is required to be updated and supplemented pursuant to Section 2.14(c)(i)(B) to be true and correct as of the date that is 10 Business Days before the meeting, not later than 8 Business Days before the meeting; and

 

  (C) in the case of information that is required to be updated and supplemented pursuant to Section 2.14(c)(i)(C) to be true and correct as of the date that is 10 Business Days before the date scheduled for the convening of any postponed meeting or the reconvening of any adjourned meeting, not later than 8 Business Days before the date scheduled for such convening or reconvening of the meeting; provided, however, if it is not practicable to provide such updated and supplemental information not later than 8 Business Days before the date scheduled for such convening or reconvening, on the first practicable date before any such convening or reconvening.

 

  (iii) The Corporation may require any Proposed Nominee to furnish such other information as it may reasonably require to determine (A) the eligibility of such Proposed Nominee to serve as a Director, and (B) whether such Proposed Nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly disclosed corporate governance guideline or committee charter of the Corporation.

 

  (iv)

Notwithstanding the foregoing provisions of this Section 2.14, unless otherwise required by applicable law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special

 

15


  meeting of stockholders to present a nomination or proposed business that such stockholder has proposed in accordance with this Section 2.14, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.14, to be considered a qualified representative of the stockholder, a Person must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such Person must produce to the Secretary or inspector of elections such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

 

  (v) Section 2.14(a) is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders other than any proposal made pursuant to Rule 14a-8 under the Exchange Act. Nothing in this Section 2.14 shall be deemed to (A) affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 (or any successor thereto) promulgated under the Exchange Act, (B) confer upon any stockholder a right to have a nominee or any proposed business included in the Corporation's proxy statement, or (C) affect the rights of the holders of any class or series of shares of capital stock of the Corporation having a preference over the common stock of the Corporation, as to dividends or upon liquidation, to nominate and elect Directors pursuant to and to the extent provided in any applicable provisions of the Certificate of Incorporation.

 

  (d) Definitions . As used in these By-laws, the following capitalized terms shall have the following meanings:

 

  (i)

A Person shall be deemed to be the “ Beneficial Owner ” of, to “ Beneficially Own ” or to have “ Beneficial Ownership ” of any Referenced Securities of the Corporation (A) that such Person or any of such Person's affiliates or associates beneficially owns, directly or indirectly, for purposes of Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation); (B) that such Person or any of such Person's affiliates or associates has (x) the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in writing), or upon the exercise of conversion, exchange purchase rights, warrants or options, or otherwise; (y) the right to vote or to direct the vote of, pursuant to any agreement, arrangement or understanding, whether or not in writing; or (z) the right to dispose, direct, or cause the disposition of, pursuant to any agreement, arrangement or understanding, whether or not in writing; or (C) that are beneficially owned, directly or indirectly, by any other Person or any affiliate or associate thereof with which such Person or any of such

 

16


  Person's affiliates or associates has any agreement, arrangement or understanding, whether or not in writing for the purpose of acquiring, holding, voting or disposing of any such Referenced Securities of the Corporation.

 

  (ii) Business Day ” shall mean a day, other than Saturday, Sunday, or public holidays in the United States of America.

 

  (iii) Derivative Instrument ” shall mean any option, warrant, convertible security, stock appreciation right, future, forward, swap, borrowing or financing agreement or arrangement, synthetic arrangement or similar right, agreement or arrangement (whether or not currently exercisable and whether written or oral) with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any Referenced Securities of an entity, or with a value derived in whole or in part from the value of any Referenced Securities of an entity, including by reference to the market price, volatility, dividend, or interest rate or other attribute, whether or not such instrument or right shall be subject to settlement through delivery of (or otherwise with respect to) the underlying Referenced Securities, and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of Referenced Securities of an entity, including by reference to the market price, volatility, dividend or interest rate or other attribute, including but not limited to "derivative securities" as defined under Rule 16a-1 under the Exchange Act; provided, however, that Derivative Instrument shall not include interests in broad-based index options, broad-based index futures, and broad-based publicly traded market baskets of stocks approved for trading by the appropriate federal governmental authority.

 

  (iv)

Disclosable Interests ” shall mean with respect to each Proposing Person: (A) (i) all Long Interests, (ii) all Short Interests, (iii) all indebtedness and other obligations of the Corporation or any of the Corporation’s Subsidiaries, and (iv) all Synthetic Interests with respect to any Referenced Securities of the Corporation or any of its Subsidiaries, in each case (i) through (iv), in which that Proposing Person, directly or indirectly, holds an interest; (B) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has or shares a right to, directly or indirectly, vote or direct or cause any third party to vote any Shares; (C) any rights to dividends or other distributions on or with respect to Shares, directly or indirectly, Beneficially Owned by such Proposing Person that are separated or separable from the underlying Shares; (D) any carried interest, profits interest or other performance-related fees (other than an asset based fee) to which such Proposing Person, directly or indirectly, is entitled based on

 

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  any past, present or future increase or decrease in the value of any Referenced Securities of the Corporation or any of its Subsidiaries and/or Synthetic Interest with respect to any Referenced Security of the Corporation or any of its Subsidiaries; (E) any significant interest in any shares of capital stock, other securities, obligations or indebtedness of or Synthetic Interest in any one or more of the principal competitors or members of the peer group of the Corporation or any of its Subsidiaries (as set forth in the most recent annual report or annual meeting proxy statement, as the case may be, of the Corporation) directly or indirectly held or beneficially owned by such Proposing Person and the class, series, number and, if applicable, principal amount of shares of capital stock, other securities, obligations or indebtedness relating to any such interest; (F) any significant interest, direct or indirect (including, without limitation, any existing or prospective commercial, business or contractual relationship), by security holdings or otherwise, of such Proposing Person, in the Corporation or any Subsidiary thereof, or in their respective obligations, other than an interest arising from ownership of any Referenced Securities where such Proposing Person receives no additional or special benefit not shared on a pro rata basis by all other holders of the same class or series of such securities; and (G) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the nominations or business proposed to be brought before the meeting pursuant to Regulation 14A under the Exchange Act, including without limitation, for purposes of clauses (A) through (G) of this Section 2.14(d)(iv), any of the foregoing held by or otherwise applicable to any member of such Proposing Person's immediate family sharing the same household. With respect to the interests described in clauses (A)(i) through (A)(iv) of this Section 2.14(d)(iv), Disclosable Interests shall also include, without limitation, (x) the date on which the Proposing Person acquired an interest, directly or indirectly, in any Referenced Securities of the Corporation or any of its Subsidiaries and/or Synthetic Interest with respect to any Referenced Securities of the Corporation or any of its Subsidiaries, as applicable, and (y) the initial and present investment intent as to such interests. With respect to any Synthetic Interest, Disclosable Interests shall also include, without limitation, the identification of the counterparty to and any other participant in each such Synthetic Interest and whether (1) such Synthetic Interest conveys to such Proposing Person any voting rights, directly or indirectly, in any Referenced Securities of the Corporation or any of its Subsidiaries, (2) such Synthetic Interest is required to be, or is capable of being, settled through delivery of (or otherwise with respect to) Referenced Securities of the Corporation or any of its Subsidiaries, and (3) such Proposing Person, counterparty, or any other participant in such Synthetic Interest has entered into other transactions, agreements, arrangements, understandings, or relationships

 

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  that hedge, mitigate, or otherwise alter or affect the economic effect of such Synthetic Interest. Notwithstanding anything to the contrary in this Section 2.14(d)(iv), Disclosable Interests shall not include any such disclosures with respect to the ordinary course of business activities of any broker, dealer, commercial bank, or trust company (or nominee for any of them) who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these By-laws on behalf of a Beneficial Owner.

 

  (v) Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

 

  (vi) Holder of Record Representation ” shall mean a representation by each Proposing Person who is a holder of record of Shares and is giving the required notice to the Secretary pursuant to Section 2.14(a) or Section 2.14(b): (A) that the notice the Proposing Person is giving to the Secretary is being given on behalf of (x) such holder of record and/or (y) if different than such holder of record, one or more Beneficial Owners of Shares held of record by such holder of record, (B) as to each such Beneficial Owner, the number of Shares held of record by such holder of record that are Beneficially Owned by such Beneficial Owner, with documentary evidence of such Beneficial Ownership, and (C) that such holder of record is entitled to vote at such meeting and intends to appear (or have a qualified representative appear in accordance with Section 2.14(c)(iv)) at the meeting to propose such business or nomination.

 

  (vii) Long Interest ” shall mean all securities, including securities that are not equity securities, of the Corporation that are Beneficially Owned, other than a Synthetic Long Interest.

 

  (viii) Other Business ” shall mean business other than the nomination of persons for election to the Board that the stockholder proposes to bring at a meeting.

 

  (ix) Person ” shall mean a natural person, corporation, partnership (general or limited), limited liability company, firm, estate, trust, common or collective fund, association, unincorporated organization, private foundation, joint stock company, or other organization or entity.

 

  (x)

Proposed Business Information ” shall mean with respect to any Other Business: (A) a reasonably brief description of the business desired to be brought at the meeting; (B) the text of the proposal or business (including the text of any resolutions proposed for consideration and if such business includes a proposal to amend these By-laws, the language of the proposed amendment); (C) the reasons for conducting such business at the meeting; (D) any present or prospective material interest in such business of each Proposing Person; and (E) a summary of any material agreements,

 

19


  arrangements, and understandings regarding the business proposed to be brought at the meeting (x) between or among any of the Proposing Persons or (y) between or among any Proposing Person and any other record or Beneficial Owner of any Referenced Securities of the Corporation and/or Synthetic Interest or any other Person or Persons (including their names).

 

  (xi) Proposed Nomination Information ” shall mean with respect to any Proposed Nominee: (A) the name, age, business and residence address, and principal occupation or employment, of the Proposed Nominee; (B) all other information relating to the Proposed Nominee that would be required to be disclosed about such Proposed Nominee if proxies were being solicited for the election of the Proposed Nominee as a Director in an election contest (whether or not such proxies are or will be solicited), or that is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act; (C) such Proposed Nominee's written consent to being named in the proxy statement, if any, as a Proposed Nominee and to serving as a Director if elected; and (D) all information with respect to such Proposed Nominee that would be required to be set forth in a stockholder's notice pursuant to this Section 2.14 if such Proposed Nominee were a Proposing Person.

 

  (xii) Proposed Nominee ” shall mean a person or persons nominated by a stockholder or stockholders for election to the Board in accordance with these By-laws.

 

  (xiii) Proposing Person ” shall mean (A) the stockholder or stockholders of record giving the notice required by Section 2.14(a) or Section 2.14(b), (B) the Beneficial Owner or Beneficial Owners, if different, on whose behalf such notice is given, and (C) any affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act, or its successor provision) of such stockholder(s) of record or Beneficial Owner(s).

 

  (xiv) Proxy Solicitation Representation ” shall mean a representation whether any Proposing Person intends or is part of a group that intends (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of outstanding Shares required to approve or adopt the proposed business or elect the Proposed Nominee and/or (B) otherwise to solicit proxies from stockholders in support of such proposed business or Proposed Nominee.

 

  (xv) Public Announcement ” shall mean disclosure by the Corporation in a press release reported by the Dow Jones News Service, Associated Press, Bloomberg, or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14, or 15(d) of the Exchange Act.

 

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  (xvi) Referenced Securities ” shall mean shares of any class or series of capital stock, other securities, obligations, indebtedness of, or any other legal or beneficial interest in, an entity, whether or not such instrument or right constitutes a “security” under the Exchange Act.

 

  (xvii) Short Interest ” shall mean any short sale within the meaning of Rule 200 of the Exchange Act, any sale of borrowed securities, “naked short sale” or any other short interest in any security (including a security that is not an equity security) of the Corporation, other than a Synthetic Short Interest.

 

  (xviii) Stockholder Information ” shall mean as to each Proposing Person (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Corporation's books and records); and (B) the class or series and number of shares of capital stock of the Corporation or any of its Subsidiaries that are, directly or indirectly, owned of record or Beneficially Owned by such Proposing Person.

 

  (xix) Subsidiary ” or “Subsidiaries ” shall mean any corporation, limited liability company, partnership, or other business organization in which the Corporation controls more than 50% of the voting power.

 

  (xx) Synthetic Interest ” shall mean any Synthetic Long Interest or Synthetic Short Interest.

 

  (xxi) Synthetic Long Interest ” shall mean any Derivative Instrument that represents an opportunity to profit or share in any profit derived from any increase in the value of Referenced Securities of an entity, other than a Long Interest.

 

  (xxii) Synthetic Short Interest ” shall mean any Derivative Instrument that represents an opportunity to profit or share in any profit derived from any decrease in the value of Referenced Securities of an entity, other than any Short Interest.

Section 2.15. Stockholders’ Consent in Lieu of Meeting .

 

  (a)

Consents to Corporate Action . Unless otherwise provided by the Certificate of Incorporation, any action which is required to be or may be taken at any annual or special meeting of stockholders, subject to the provisions of paragraphs (b) and (c) of this Section 2.15, may be taken without a meeting, without prior notice and without a vote if consents in writing, setting forth the action so taken, shall have been signed by the holders of the outstanding Shares having not less than the minimum number of votes that would be necessary to authorize or to take such action at a meeting at which all Shares entitled to vote thereon were present and voted; provided, however, that prompt notice of the taking of the corporate action without a meeting and by less than unanimous written consent shall be given to those stockholders who have not consented in writing. The writing or writings

 

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  shall be delivered to the Corporation by delivery to its registered office in the State of Delaware or its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested.

 

  (b) Determination of Record Date of Action by Written Consent . In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting (including by electronic transmission as permitted by law), the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board. Any stockholder of record seeking to have the stockholders authorize or take corporate action by written consent shall, by written notice to the Secretary, request that the Board fix a record date. The Board shall promptly adopt a resolution fixing the record date; provided, however, if no record date has been fixed by the Board within 10 days of the date on which such request is received, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware or its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery shall occur as set forth in Section 2.15(a). If no record date has been fixed by the Board and prior action by the Board is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board adopts the resolution taking such prior action.

 

  (c)

Electronic Transmission . An electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section 2.15; provided, however, that any such electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder, and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such electronic transmission. The date on which such electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware or its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of

 

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  stockholders are recorded. Delivery made to the Corporation's registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by electronic transmission may be otherwise delivered to the principal place of business of the Corporation or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded, to the extent and in the manner provided by resolutions of the Board.

 

  (d) Copy, Facsimile, or Other Reproduction . Any copy, facsimile, or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided, however, that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

 

  (e) Procedures for Written Consent . In the event of the delivery to the Corporation of a written consent or consents purporting to represent the requisite voting power to authorize or take corporate action and/or related revocations, the Secretary shall provide for safekeeping of such consents and revocations and shall, as promptly as practicable, engage nationally recognized independent judges of election for the purpose of promptly performing a ministerial review of the validity of the consents and revocations. No action by written consent and without a meeting shall be effective until such judges have completed their review, determined that the requisite number of valid and unrevoked consents has been obtained to authorize or take action specified in the consents, and certified such determination for entry in the records of the Corporation kept for the purpose of recording the proceedings of meetings of stockholders.

Section 2.16. Remote Communication .

 

  (a) In lieu of holding an annual or special meeting of stockholders at a designated place as set forth in Section 2.01, the Board may, in its sole discretion, determine that any annual or special meeting of stockholders may be held solely by means of remote communication.

 

  (b) If authorized by the Board, in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders may, by means of remote communication:

 

  (i) participate in a meeting of stockholders, whether such meeting is held at a designated place or solely by means of remote communication; and

 

  (ii)

be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication; provided, however, that (A) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (B) the

 

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  Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxyholder votes or takes action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

ARTICLE III

B OARD O F D IRECTORS

Section 3.01. General Powers . The business and affairs of the Corporation shall be managed by the Board or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, the Certificate of Incorporation or these By-laws directed or required to be exercised or done by stockholders.

Section 3.02. Number and Term of Office . The Board shall consist of five Directors, or such other number as shall be fixed from time to time by resolution of the Board. Directors need not be stockholders. Directors shall be elected at the annual meeting of stockholders, and each Director shall hold office until his successor is elected and qualified, or until his earlier death or resignation or removal in the manner hereinafter provided.

Section 3.03. Resignation . Any Director may resign at any time by giving notice in writing or by electronic transmission to the Board, the Chairman or the Secretary; provided, however, that if such notice is given by electronic transmission, such electronic transmission must set forth (or be submitted with) information from which it can be determined by the Board that the electronic transmission was authorized by the director. Such resignation shall take effect at the time specified in such notice or, if the time is not specified, upon receipt thereof by the Board, the Chairman or the Secretary, as the case may be. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.

Section 3.04. Removal . Any or all of the Directors may be removed, with or without cause, at any time by vote of the holders of record of a majority of the Shares then entitled to vote at an election of Directors, or by written consent of the holders of record of voting Shares pursuant to Section 2.14 hereof.

Section 3.05. Vacancies and Newly Created Directorships . Vacancies occurring on the Board as a result of the removal of Directors without cause may be filled only by vote of the holders of record of a majority of the Shares then entitled to vote at an election of Directors, or by written consent of such holders of record pursuant to Section 2.14 hereof. Vacancies occurring on the Board for any other reason, including, without limitation, vacancies occurring as a result of the creation of new directorships that increase the number of Directors, may be filled only by a majority of the Directors then in office, even if less than a quorum. Unless earlier removed pursuant to Section 3.04 hereof, each Director chosen in accordance with this Section 3.05 shall hold office until the next annual election of Directors by the stockholders and until his successor shall be elected and qualified.

 

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Section 3.06. Chairman or Co-Chairmen . A Chairman or Co-Chairman of the Board may also be the Chief Executive Officer or any other officer of the Corporation. A Chairman or Co-Chairmen shall be appointed by a majority of the Directors of the Board and each shall be designated by the Board as either a Non-Executive Chairman or, in accordance with the provisions of Section 4.01 of these By-laws, an Executive Chairman of the Board. (References in these By-laws to the Chairman ” shall mean either a Chairman or the Co-Chairmen of the Board, as applicable, whether they singly or collectively are a Non-Executive Chairman or Executive Chairman, as designated by the Board). The Chairman shall have the power to call special meetings of stockholders, to call special meetings of the Board and, if present, to preside at all meetings of stockholders and all meetings of the Board. The Chairman shall perform all duties incident to the office of Chairman and all such other duties as may from time to time be assigned by the Board or these By-laws.

Section 3.07. Meetings .

 

  (a) Annual Meetings . As soon as practicable after each annual election of Directors by the stockholders, the Board shall meet for the purpose of organization and the transaction of other business, unless it shall have transacted all such business by written consent pursuant to Section 3.08 hereof.

 

  (b) Regular Meetings . The Board may provide for regular stated meetings of the Board.

 

  (c) Special Meetings . Special meetings of the Board shall be held at such times as determined by the Chairman, Chief Executive Officer, the President or the Secretary acting under instructions from the Chairman, Chief Executive Officer or President or shall be held upon the call of a majority of the Board. Special meetings of the Board may be held at any date, time and place, if any.

 

  (d) Notice of Meetings . No notice need be given of any organization or regular stated meeting of the Board for which the date, hour and place have been fixed by the Board. The Secretary shall give written notice to each Director of each other organization and stated meeting and of all special meetings of the Board, which notice shall state the place, date, time and purpose of such meeting. Notice of each such meeting shall be given to each Director at least twenty-four hours before the time at which such meeting is to be held. Such notice may be communicated, without limitation, in person; by telephone, by facsimile or other form of electronic transmission, or by mail or private carrier. Written notice of a meeting is effective at the earliest of the following:

 

  (i) when received;

 

  (ii) upon its deposit in the United States mail, as evidenced by the postmark, if mailed with postage thereon prepaid and correctly addressed;

 

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  (iii) if by facsimile or other electronic transmission, on the date such facsimile or other electronic transmission is sent, if by facsimile, to the facsimile transmission number at which the Director has consented to receive notice, or if by other form electronic transmission, in the manner pursuant to which the Director has consented to receive notice; or

 

  (iv) on the date shown on the confirmation of delivery issued by a private carrier, if sent by private carrier to the address of the Director last known to the Corporation.

Oral notice is effective when actually communicated to the Director. Notice of an adjourned meeting of Directors need not be given if the time and place are fixed at the meeting being adjourned. The notice of any meeting of Directors need not describe the purpose of the meeting unless otherwise required by the DGCL.

A written waiver of notice, signed by the Director entitled to notice, whether before or after the time of the meeting referred to in such waiver, shall be deemed equivalent to notice. Neither the business to be transacted at, nor the purpose of any meeting of the Board need be specified in any written waiver of notice thereof. Attendance of a Director at a meeting of the Board shall constitute a waiver of notice of such meeting, except as provided by law.

 

  (e) Place of Meetings . The Board may hold its meetings at such place or places within or without the State of Delaware as the Board or the Chairman may from time to time determine, or as shall be designated in the respective notices or waivers of notice of such meetings.

 

  (f) Quorum and Manner of Acting . A majority of the total number of Directors then in office (but in no event less than three Directors) shall be present in person at any meeting of the Board in order to constitute a quorum for the transaction of business at such meeting, and the vote of a majority of those Directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board, except as otherwise expressly required by law, the Certificate of Incorporation or these By-laws. In the absence of a quorum for any such meeting, a majority of the Directors present thereat may adjourn such meeting from time to time until a quorum shall be present.

 

  (g) Conduct of Meetings . At each meeting of the Board, one of the following shall act as the presiding officer of the meeting and preside, in the following order of precedence:

 

  (i) the Chairman;

 

  (ii) the Chief Executive Officer;

 

  (iii) any Director chosen by a majority of the Directors present.

 

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The Secretary or, in the case of his or her absence, any person (who shall be an Assistant Secretary, if an Assistant Secretary is present) whom the presiding officer shall appoint shall act as secretary of such meeting and keep the minutes thereof.

 

  (h) The Board may adopt such rules and regulations not inconsistent with the Certificate of Incorporation, these By-laws, or applicable law for the conduct of its meetings and management of the affairs of the Corporation as the Board may deem proper.

Section 3.08. Directors' Consent in Lieu of Meeting . Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed, including by electronic signature, by all the members of the Board or such committee and such consent is filed with the minutes of the proceedings of the Board or such committee.

Section 3.09. Action by Means of Telephone or Other Communications Equipment . Anyone or more members of the Board, or of any committee thereof, may participate in a meeting of the Board or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.

Section 3.10. Compensation . Unless otherwise restricted by the Certificate of Incorporation, the Board may determine the compensation of Directors. In addition, as determined by the Board, Directors may be reimbursed by the Corporation for their expenses, if any, in the performance of their duties as Directors. No such compensation or reimbursement shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.

Section 3.11. Committees of the Board . The Board may designate one or more committees, and appoint one or more members of the Board to serve on each committee at the pleasure of the Board. The Board shall have the power at any time to create additional committees, to change the membership of, to increase or decrease the membership of, to fill all vacancies in and to discharge any such committee, or any member thereof, either with or without cause. The Board shall periodically approve a charter describing the duties of each committee. Meetings of any committee may be held at such times and places (if any) as shall be fixed by the chairman of the committee or by resolution adopted by a majority of the members thereof, or in such other manner as provided by the Board in the committee’s charter, unless the Board otherwise provides. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. A majority of the members of any committee of the Board shall be present in person at any meeting of the committee in order to constitute a quorum for the transaction of business at such meeting, and the act of a majority of the members present at any such meeting at which a quorum is present shall be the act of the committee. In the absence of a quorum for any such meeting, a majority of the members present thereat may adjourn such meeting from time to time

 

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until a quorum shall be present. Any committee of the Board, to the extent provided in the resolution of the Board designating such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however , that no such committee shall have such power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of Directors) expressly required by the DGCL to be submitted to stockholders for approval or (ii) adopting, amending or repealing these By-laws. In addition, each committee of the Board so appointed may appoint a sub-committee of the Board in furtherance of the duties delegated to it by the Board. Each committee of the Board shall keep regular minutes of its proceedings and report the same to the Board when so requested by the Board.

ARTICLE IV

O FFICERS

Section 4.01. Section 4.01. Officers . The officers of the Corporation may include an Executive Chairman, Chief Executive Officer, a President, Chief Financial Officer, one or more Senior Managing Directors, Managing Directors, First Vice Presidents, Vice Presidents, a Secretary, a Treasurer, and such other officers, assistant or otherwise as may be elected or appointed from time to time by the Board or under the authority of the Board. Any two or more offices may be held by the same person provided that the office of President and Secretary shall not be held by the same person. Without limiting the generality of the foregoing, the Board may designate the Chairman of the Board, as an Executive Chairman, in which case such person shall be an officer of the Corporation and shall have, in addition to the duties set forth in these By-laws, such powers and authority as determined by the Board. If the Chief Executive Officer is absent or incapacitated, the Board or any committee designated by the Board for such purpose shall determine the person who shall have all the power and authority of the Chief Executive Officer.

Section 4.02. Authority and Duties . All officers shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-laws or, to the extent not so provided, by resolution of the Board. The Board, by resolution from time to time, may confer like powers upon any other person or persons. Subject to applicable law, compensation of all officers shall be fixed by the Board.

Section 4.03. Term of Office, Resignation and Removal .

 

  (a) Term . Each officer shall be appointed by the Board and shall hold office for such term as may be determined by the Board. Each officer shall hold office until his successor has been appointed and qualified or his earlier death or resignation or removal in the manner hereinafter provided. The Board may require any officer to give security for the faithful performance of his duties.

 

  (b)

Resignation . Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board, the President or the Secretary; provided,

 

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  however, that if such notice is given by electronic transmission, such electronic transmission must set forth (or be submitted with) information from which it can be determined by the Board that the electronic transmission was authorized by the officer. Such resignation shall take effect at the time specified in such notice or, if the time be not specified, upon receipt thereof by the Board, the President or the Secretary, as the case may be. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.

 

  (c) Removal . All officers and agents appointed by the Board shall be subject to removal, with or without cause, at any time by the Board or by the action of the holders of record of a majority of the Shares entitled to vote thereon.

Section 4.04. Vacancies . Any vacancy occurring in any office of the Corporation, for any reason, shall be filled by action of the Board. Unless earlier removed pursuant to Section 4.03 hereof, any officer appointed by the Board to fill any such vacancy shall serve only until such time as the unexpired term of his predecessor expires unless reappointed by the Board.

Section 4.05. Chief Executive Officer . The Chief Executive Officer shall supervise and control the business and affairs of the Corporation, subject to the direction and control of the Board, and shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer and all such other duties as may from time to time be assigned to him by the Board or these By-laws.

Section 4.06. The President . The President shall be the chief operating officer of the Corporation and shall perform the duties and exercise the powers of that office and, in addition, the President shall have such other duties and shall have such other authority as may be prescribed by the Board or these By-laws.

Section 4.07. Vice Chairmen, Senior Managing Directors, Managing Directors, First Vice Presidents and Vice Presidents . The Board may appoint one or more Vice Chairmen, Senior Managing Directors, Managing Directors, First Vice Presidents or Vice Presidents and create categories of same. Each Vice Chairman, Senior Managing Director, Managing Director, First Vice Presidents and Vice President shall have such duties and authorities as may be described by the Board or by the officer to whom such officers reports.

Section 4.08. Chief Financial Officer. The Chief Financial Officer shall be the principal financial officer of the Corporation. He or she shall render such accounts and reports as may be required by the Board or any committee of the Board. The financial records, books and accounts of the Corporation shall be maintained subject to his or her direct or indirect supervision.

Section 4.09. Secretary . The Secretary shall, to the extent practicable, attend all meetings of the Board and all meetings of stockholders and shall record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform the same duties for any committee of the Board when so requested by such committee. The Secretary shall give or cause to be given notice of all meetings of stockholders and of the Board, shall perform such other duties as may be prescribed by the Board, the Chairman or the President and shall act under the

 

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supervision of the Chairman and the President. He or she shall keep in safe custody the seal of the Corporation and affix the same to any instrument that requires that the seal be affixed to it and which shall have been duly authorized for signature in the name of the Corporation and, when so affixed, the seal shall be attested by his or her signature or by the signature of the Treasurer of the Corporation (the “ Treasurer ”) or an Assistant Secretary of the Corporation. The Secretary shall keep in safe custody such books and records of the Corporation as the Board, the Chairman or the President may direct and shall perform all other duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the Board, the Chairman or the President.

Section 4.10. Assistant Secretaries . Assistant Secretaries of the Corporation ( Assistant Secretaries ”), if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Secretary and perform such other duties as the Board or the Secretary shall prescribe, and, in the absence or disability of the Secretary, shall perform the duties and exercise the powers of the Secretary.

Section 4.11. Treasurer . The Treasurer shall have the care and custody of all the funds and securities of the Corporation and shall deposit such funds and securities in such banks or other depositories as the Board, or any officer or officers, or any officer and agent jointly, duly authorized by the Board, shall, from time to time, direct or approve. The Treasurer shall disburse the funds of the Corporation under the direction of the Board and the President. The Treasurer shall keep a full and accurate account of all moneys received and paid on account of the Corporation and shall render a statement of his accounts whenever the Board, the Chairman or the President shall so request. The Treasurer shall perform all other necessary actions and duties in connection with the administration of the financial affairs of the Corporation and shall generally perform all the duties usually appertaining to the office of treasurer of a corporation. When required by the Board, the Treasurer shall give bonds for the faithful discharge of his duties in such sums and with such sureties as the Board shall approve.

Section 4.12. Assistant Treasurers . Assistant Treasurers of the Corporation ( Assistant Treasurers ”), if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Treasurer and perform such other duties as the Board or the Treasurer shall prescribe, and, in the absence or disability of the Treasurer, shall perform the duties and exercise the powers of the Treasurer.

ARTICLE V

S HARES A ND T RANSFERS O F S HARES

Section 5.01. Certificates Evidencing Shares . Shares of the Corporation may but need not be evidenced by certificates. Upon request, every holder of uncertificated shares shall be entitled to have a duly executed certificate of stock. If certificates of stock are issued, the Corporation shall issue such certificates in such form as shall be required by the DGCL and as determined by the Board, to every stockholder for the fully paid shares owned by such stockholder. Each certificate representing the number of shares registered in certificate form shall be signed by the Chairman, the President or any Vice Chairman or Vice President and by the Secretary, any Assistant Secretary, or the Treasurer. No certificate for a fractional share of common stock of the Corporation shall be issued. Any or all signatures on the certificate may be a facsimile.

 

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Section 5.02. Transfers of Shares . Subject to Article XII of the Certificate of Incorporation, Transfers (as such term is defined in Article XII of the Certificate of Incorporation) of shares shall be made upon the books of the Corporation: (i) upon presentation of the certificates by the registered holder in person or by duly authorized attorney, or upon presentation of proper evidence of succession, assignment or authority to transfer the stock, and upon surrender of the appropriate certificate(s); or (ii) in the case of uncertificated shares, upon receipt of proper transfer instructions from the registered owner of such uncertificated shares, or from a duly authorized attorney or from an individual presenting proper evidence of succession, assignment or authority to transfer the stock. All certificates surrendered for transfer shall be cancelled before new certificates for the transferred shares shall be issued. The Corporation may impose such additional conditions to the transfer of its shares as may be necessary or appropriate for compliance with applicable law or to protect the Corporation, a transfer agent or the registrar from liability with respect to such transfer.

Section 5.03. Holder of Record . The Corporation shall be entitled to treat the holder of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or on the part of any other person whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware.

Section 5.04. Addresses of Stockholders . Each stockholder shall designate to the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to such stockholder, and, if any stockholder shall fail to so designate such an address, corporate notices may be served upon such stockholder by mail directed to the mailing address, if any, as the same appears in the stock ledger of the Corporation or at the last known mailing address of such stockholder.

Section 5.05. Lost, Destroyed and Mutilated Certificates . Each holder of record of shares shall promptly notify the Corporation of any loss, destruction or mutilation of any certificate or certificates evidencing any share or shares of which he is the holder of record. The Board, in its discretion, or any transfer agent thereunto duly authorized by the Board, may authorize the issue of a new certificate in place of any certificate theretofore issued and alleged to have been mutilated, lost, stolen or destroyed, upon the surrender of the mutilated certificate or, in the case of loss, theft or destruction of the certificate, upon receipt of an affidavit of such fact from the person claiming such loss, theft or destruction, and any other documentation satisfactory to the Board. In addition, the Board may, in its discretion, require, and its transfer agents and registrars may so require, the holder of record of the shares evidenced by the lost, stolen or destroyed certificate or his legal representative to give the Corporation a bond sufficient to indemnify the Corporation against any claim made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 5.06. Regulations . The Board may make such other rules and regulations as it may deem expedient, not inconsistent with these By-laws, concerning the issue, transfer and registration of certificates evidencing shares.

 

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ARTICLE VI

I NDEMNIFICATION O F D IRECTORS , O FFICERS A ND O THERS , A ND I NSURANCE

Section 6.01. Indemnification .

 

  (a) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a Director, officer or employee of the Corporation, or is or was serving at the request of the Corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person seeking indemnification did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Notwithstanding the foregoing, except as provided in Section 6.01(d) with respect to proceedings to enforce rights to indemnification or advancement, the Corporation shall indemnify any person in connection with an action, suit or proceeding (or part thereof) initiated by such person only if such action, suit or proceeding (or part thereof) was authorized by the Board.

 

  (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, officer or employee of the Corporation, or is or was serving at the request of the Corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

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  (c) Notwithstanding, and without limitation of, any other provision of this Article VI, to the extent that a Director, officer or employee of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 6.01(a) and (b) of these By-laws, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.

 

  (d) If a claim for indemnification or advancement under Sections 6.01(a), 6.01(b), 6.01(c), or 6.01(f) is not paid in full by the Corporation within 60 days after a written claim has been received by the Corporation, the person who has made such claim (the “ indemnitee ”) may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. To the fullest extent permitted by law, if the indemnitee is successful in whole or in part in any such suit, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In any suit brought by the indemnitee to enforce a right to indemnification hereunder it shall be a defense that the indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its Directors who are not parties to such action, a committee of such Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Directors who are not parties to such action, a committee of such Directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification hereunder, the burden of proving that the indemnitee is not entitled to be indemnified under this Article VI or otherwise shall be on the Corporation.

 

  (e) Any indemnification under Section 6.01(a) and (b) of these By-laws (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer or employee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 6.01(a) and (b) of these By-laws. Such determination shall be made with respect to a person who is a Director or officer of the Corporation at the time of such determination (i) by the Board by a majority vote of Directors who were not parties to such action, suit or proceeding, even though less than a quorum, or (ii) a committee of such directors designated by a majority vote of such Directors, even though less than a quorum, or (iii) if there are no such Directors or if such Directors so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Corporation.

 

  (f)

Expenses (including attorneys’ fees) incurred by a current or former Director or officer of the Corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in

 

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  advance of the final disposition of such action, suit or proceeding; provided, however, that if the DGCL requires, an advancement of expenses incurred by such a person in his capacity as a Director or officer of the Corporation shall only be made upon receipt of an undertaking by or on behalf of such Director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. The Corporation may grant rights to the advancement of expenses (including attorneys' fees) to other persons upon such terms and conditions, if any, as the Corporation deems appropriate.

 

  (g) The indemnification and advancement of expenses provided by, or granted pursuant to, other Sections of this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, provision of the Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office.

 

  (h) For purposes of this Article, references to the Corporation ” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers or employees so that any person who is or was a director, officer or employee of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

 

  (i) For purposes of this Article, references to “ other enterprises ” shall include employee benefit plans, references to “ fines ” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “ serving at the request of the Corporation ” shall include any service as a Director, officer or employee of the Corporation which imposes duties on, or involves service by, such Director, officer or employee with respect to any employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the Corporation ” as referred to in this Article.

 

  (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer or employee and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

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Section 6.02. Insurance . The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any expense, liability or loss and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such expense, liability or loss under the provisions of Section 145 of the DGCL.

ARTICLE VII

M ISCELLANEOUS

Section 7.01. Seal . The Board may approve and adopt a corporate seal, which shall be in the form of a circle and shall bear the full name of the Corporation, the year of its incorporation and the words “Corporate Seal Delaware.”

Section 7.02. Fiscal Year . The fiscal year of the Corporation shall end on the thirty-first day of December of each year unless changed by resolution of the Board.

Section 7.03. Checks, Drafts and Notes . All checks, drafts and other orders for the payment of money, notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall be determined from time to time, by resolution of the Board.

Section 7.04. Amendments. Any By-law may be adopted, amended or repealed by vote of the Board or by a written consent of Directors pursuant to Section 3.08 hereof. The stockholders, at a meeting at which a quorum of stockholders is present, may also adopt, amend or repeal any By-law, whether adopted by them or otherwise, but only upon the affirmative vote of the holders of record of a majority of the voting power of the Shares, present at such meeting in person or represented by proxy.

Section 7.05. Forum Selection. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation against one or more Directors or officers of the Corporation alleging breaches of fiduciary duty or other wrongdoing by such Directors or officers, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director or officer of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation or any Director or officer of the Corporation arising pursuant to, or seeking to enforce any right or remedy under, any provision of the DGCL, the Certificate of Incorporation, or these By-laws, (iv) any action to interpret, apply, enforce, or determine the validity of the Certificate of Incorporation or the By-laws, or (v) any action asserting a claim against the Corporation or any Director or officer of the Corporation governed by the internal affairs doctrine shall be a state or federal court located within the State of Delaware, in all cases subject to the court’s having personal jurisdiction over the indispensible parties named as defendants. The provisions of this Section 7.05 shall be in effect from and after March 4, 2014. Any person or entity purchasing, otherwise acquiring, or continuing to own any interest in shares of capital stock of the Corporation from or after March 4, 2014, shall be deemed to have notice of and consented to the provisions of this Section 7.05.

 

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Section 7.06. Electronic Transmission. For purposes of these By-laws, “ electronic transmission ” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

 

February 28, 2014   

/s/ William White

   Secretary

 

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Exhibit 4.5

EXECUTION VERSION

 

 

JUNIOR NOTE FISCAL AGENCY AGREEMENT

between

THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION

Issuer

and

THE BANK OF NEW YORK MELLON

Fiscal Agent

Dated as of April 30, 2013

5.1% Junior Surplus Notes scheduled to mature on June 7, 2020

 

 


TABLE OF CONTENTS

 

         Page  
1.   THE JUNIOR NOTES      1   
  (a)    General      1   
  (b)    Forms of Junior Notes      1   
  (c)    Book-Entry Provisions      3   
  (d)    Persons Deemed Owners      4   
  (e)    Denominations      4   
2.   FISCAL AGENT; OTHER AGENTS      4   
3.   AUTHENTICATION      5   
4.   PAYMENT AND CANCELLATION      6   
  (a)    Payment      6   
  (b)    Cancellation      7   
5.   GLOBAL NOTES      7   
  (a)    Exchange for Certificated Notes      7   
  (b)    Junior Notes Issued in Exchange for Global Notes      8   
  (c)    Authorization by Registered Holder      8   
  (d)    Certificated Notes Made Available      8   
6.   REGISTRATION, TRANSFER AND EXCHANGE OF JUNIOR NOTES      8   
  (a)    General      8   
  (b)    Transfers of Restricted Certificated Notes      9   
  (c)    Transfers of Global Notes and Interests Therein      10   
  (d)    Registration of Transfers and Exchanges      13   
  (e)    Information from Transfer Agent      13   
  (f)    Periods of Non-registration      13   
  (g)    Legend      13   
  (h)    Repurchases by Issuer      14   
7.   REDEMPTION      14   
  (a)    Notice to Fiscal Agent      14   
  (b)    Selection of Junior Notes to be Redeemed      14   
  (c)    Notice of Redemption; Effect of Notice      15   
  (d)    Junior Notes Redeemed in Part      15   
8.   DELIVERY OF CERTAIN INFORMATION      15   

 

i


TABLE OF CONTENTS

(continued)

 

         Page  
9.   CONDITIONS OF FISCAL AGENT’S OBLIGATIONS      15   
  (a)    Compensation and Indemnity      15   
  (b)    Agency      16   
  (c)    Advice of Counsel      16   
  (d)    Reliance      16   
  (e)    Interest in Junior Notes, etc      17   
  (f)    Non-Liability for Interest      17   
  (g)    Certifications      17   
  (h)    No Implied Obligations      17   
  (i)    Enforceability of Rights      17   
  (j)    Agents      17   
  (k)    Damages      17   
  (l)    Recitals      18   
  (m)    Occurrences Beyond Reasonable Control      18   
  (n)    Default of the Issuer      18   
10.   RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR      18   
  (a)    Fiscal Agent and Paying Agent      18   
  (b)    Resignation and Removal      18   
  (c)    Successors      19   
  (d)    Acknowledgement      20   
  (e)    Merger, Consolidation, etc      20   
11.   MEETINGS AND AMENDMENTS      20   
  (a)    Calling of Meeting, Notice and Quorum      20   
  (b)    Approval      21   
  (c)    Binding Nature of Amendments, Notices, Notations, etc      22   
  (d)    “Outstanding” Defined      23   
12.   REMEDIES      24   
  (a)    Acceleration of Maturity      24   
  (b)    Failure to Pay or Perform Other Obligations      24   
  (c)    Rights of Holders      24   

 

ii


TABLE OF CONTENTS

(continued)

 

         Page  
13.   GOVERNING LAW      25   
14.   NOTICES      25   
15.   SEVERABILITY      25   
16.   HEADINGS      25   
17.   COUNTERPARTS      26   
18.   INTERPRETATION      26   
19.   WAIVER OF JURY TRIAL      26   
20.   USA PATRIOT ACT      26   

 

EXHIBIT A

   FORM OF CERTIFICATED NOTE      A-1   

EXHIBIT B

   FORM OF GLOBAL NOTE      B-1   

EXHIBIT C-1

   FORM OF CERTIFICATE FOR EXCHANGE OF RESTRICTED CERTIFICATED NOTE      C-1-1   

EXHIBIT C-2

   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED CERTIFICATED NOTE TO PERMANENT REGULATION S GLOBAL NOTE      C-2-1   

EXHIBIT C-3

   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED CERTIFICATED NOTE TO RESTRICTED GLOBAL SECURITY      C-3-1   

EXHIBIT D

   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED GLOBAL NOTE TO TEMPORARY REGULATION S GLOBAL NOTE      D-1   

EXHIBIT E

   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED GLOBAL NOTE TO PERMANENT REGULATION S GLOBAL NOTE      E-1   

EXHIBIT F

   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM TEMPORARY REGULATION S GLOBAL NOTE TO RESTRICTED GLOBAL NOTE      F-1   

EXHIBIT G

   FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP      G-1   

EXHIBIT H

   FORM OF RULE 144 CERTIFICATE      H-1   

 

iii


Index of Defined Terms

 

Defined Term

  

Section

Act

   1(b)(i)

Agent Members

   1(c)

Applicable Procedures

   6(c)(ii)

Authorized Officers

   1(b)(ii)

Certificate of Beneficial Ownership

   1(b)(ii)(B)

Certificated Note

   5(a)

Clearstream Banking

   1(b)(ii)(A)

Commissioner

   4(a)

Corporate Trust Office

   2

Euroclear

   1(b)(ii)(A)

Exchange Act

   5(a)

Excluded Order

   1(a)

Fiscal Agent

   2

Global Notes

   1(c)

Institutional Accredited Investor

   1(b)(i)

Issuer

   Preamble

Junior Notes

   1(a)

Legend

   6(g)

Outstanding

   11(d)

Paying Agent

   2

Payment Restrictions

   1(a)

Permanent Regulation S Global Note

   1(b)(ii)(A)

Proceeding

   1(a)

registered holders

   4(a)

Regulation S

   1(b)(ii)(A)

Rehabilitator

   1(b)

Restricted Certificated Notes

   6(b)

Restricted Global Notes

   1(b)(i)

Restricted Notes

   6(g)

Restricted Period

   1(b)(ii)(A)

Rule 144A

   6(b)(i)(2)

Rule 144A Information

   8

Scheduled Maturity Date

   1(a)

Temporary Regulation S Global Note

   1(b)(ii)(A)

Transfer Agent

   2

U.S. Depositary

   1(b)(i)

USA Patriot Act

   20

 

iv


JUNIOR NOTE FISCAL AGENCY AGREEMENT (this “ Agreement ”), dated as of April 30, 2013, between THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”) and THE BANK OF NEW YORK MELLON, a New York banking corporation, as Fiscal Agent (as defined herein). The Exhibits attached hereto shall be deemed to be a part of this Agreement.

1. The Junior Notes .

(a) General . The aggregate principal amount of 5.1% Junior Surplus Notes of the Issuer (the “ Junior Notes ”) that may be authenticated and delivered under this Agreement from time to time is unlimited. Claims based upon the Junior Notes will rank below all Indebtedness, Policy Claims and Prior Claims (each as defined in the Junior Notes). The payment by the Issuer of principal and interest on the Junior Notes shall be conditioned upon the payment restrictions set forth in paragraphs 4 and 8 of the Junior Notes (the “ Payment Restrictions ”). The Junior Notes are scheduled to mature on June 7, 2020 (the “ Scheduled Maturity Date ”). Any reference herein to the term “ scheduled maturity date ” or other date for the payment of principal of the Junior Notes shall include (i) the date, if any, fixed for redemption in accordance with paragraph 13 of the Junior Notes and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the general account of Ambac Assurance Corporation (the “ General Account ”), excluding, for the avoidance of doubt, any Excluded Order. “ Excluded Order ” means any order or approval of the type described in clause (ii) above entered or granted prior to the date hereof or any such order or approval entered or granted on or after the date hereof in the rehabilitation proceeding under Chapter 645 of the Wisconsin Statutes pending with respect to the Issuer as of the date hereof (the “ Proceeding ”), except to the extent that any such order or approval by its express terms provides for the acceleration of the maturity of the Junior Notes or otherwise designates the scheduled maturity date or other maturity date or date for the payment of principal of the Junior Notes.

(b) Forms of Junior Notes . The Junior Notes are being issued by the Issuer from time to time as set forth below.

(i) Junior Notes offered and sold to “ institutional accredited investors ” (each, an “ Institutional Accredited Investor ”) within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “ Act ”), shall be issued in the form of Global Notes (as defined below) (the “ Restricted Global Notes ”) in definitive, fully registered form without interest coupons, substantially in the form attached as Exhibit B hereto, with such applicable legends as are provided for in Exhibit B. Each such Global Note shall be registered in the name of a nominee of The Depository Trust Company (the “ U.S. Depositary ”) and deposited with the Fiscal Agent, at its New York City office, as custodian for the U.S. Depositary, duly executed by the Issuer and authenticated by the Fiscal Agent as hereinafter provided. The aggregate principal amount of each Restricted Global Note may from time to time be increased or decreased by adjustments made on the records of the Fiscal Agent, as custodian for the U.S. Depositary, as hereinafter provided.


(ii) (A) Junior Notes offered and sold in reliance on Regulation S (“ Regulation S ”) under the Act shall be issued initially in the form of temporary Global Notes in definitive, fully registered form without interest coupons, substantially in the form of Junior Note attached as Exhibit B hereto, with such applicable legends as are provided for in Exhibit B. Each such Global Note shall be registered in the name of a nominee of the U.S. Depositary and deposited with the Fiscal Agent, at its New York City office, as custodian for the U.S. Depositary, duly executed by the Issuer and authenticated by the Fiscal Agent as hereinafter provided, for credit to the respective accounts of Euroclear Bank S.A./N.V. (“ Euroclear ”) or Clearstream Banking, société anonyme , Luxembourg (“ Clearstream Banking ”). Until such time as the Restricted Period (as defined below) shall have terminated, each such Global Note shall be referred to herein as a “ Temporary Regulation S Global Note. ” After the Restricted Period shall have terminated, interests in each such Global Note shall be exchangeable for equivalent interests in a like Global Note, referred to herein as a “ Permanent Regulation S Global Note. ” The aggregate principal amount of each Temporary Regulation S Global Note and each Permanent Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Fiscal Agent, as custodian for the U.S. Depositary, as hereinafter provided. As used herein, the term ” means the period of 40 consecutive days beginning on and including the issue date of the Temporary Regulation S Global Note.

(B) An owner of a beneficial interest in a Temporary Regulation S Global Note (or a person acting on behalf of such an owner) may provide to Euroclear or Clearstream Banking, as applicable, (and Euroclear or Clearstream Banking will accept) a duly completed certificate in substantially the form of Exhibit G (a “ Certificate of Beneficial Ownership ”) at any time after the termination of the Restricted Period (it being understood that Euroclear or Clearstream Banking, as applicable, will not accept any such certificate during the Restricted Period). Promptly after receipt by the Fiscal Agent of a Certificate of Beneficial Ownership from the U.S. Depositary on behalf of Euroclear or Clearstream Banking, as applicable (or other appropriate confirmation to such effect in accordance with the Applicable Procedures (as defined below)), with respect to such a beneficial interest, the Fiscal Agent will cause such beneficial interest to be exchanged for an equivalent beneficial interest in a Permanent Regulation S Global Note, and will (x) permanently reduce the principal amount of such Temporary Regulation S Global Note by the amount of the beneficial interest certified in such Certificate of Beneficial Ownership and (y) increase the principal amount of such Permanent Regulation S Global Note by the amount of the beneficial interest certified in such Certificate of Beneficial Ownership, in each case subject to the Applicable Procedures.

(iii) Notwithstanding the other provisions of this Section 1(b), Junior Notes may be issued as certificated securities in definitive, fully registered form without interest coupons, substantially in the form attached as Exhibit A hereto, with such applicable legends as are provided in Exhibit A (“ Certificated Notes ”).

 

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All Junior Notes shall be issued substantially in the form attached hereto as either Exhibit A or B, as applicable, and shall be executed manually, in facsimile or portable document format on behalf of the Issuer by any of, (i) while the Issuer is subject to the Proceeding, the rehabilitator of the Issuer under the Proceeding appointed by the rehabilitation court and such rehabilitator’s successors (the “ Rehabilitator ”) or a designee of such Rehabilitator (including any management service provider) and, (ii) while the Issuer is not subject to the Proceeding, the Issuer’s Chief Executive Officer, President, Executive Vice President or Chief Financial Officer (the persons specified in the foregoing (i) and (ii), as applicable, the “ Authorized Officers ”), notwithstanding that such officers, or any of them, shall have ceased, for any reason, to hold such offices prior to the authentication and delivery of such Junior Notes or did not hold such offices at the date of any such Junior Note. The Junior Notes also may have such (A) additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement and (B) letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with this Agreement, any law or with any rules made pursuant thereto or with the rules of any securities exchange, insurance regulatory or other governmental agency or depositary therefor or as may, consistently herewith, be determined by the Authorized Officer executing such Junior Notes, in the case of both (A) and (B), as conclusively evidenced by the proper execution of such Junior Notes by any such Authorized Officer. All Junior Notes shall be otherwise identical except as to denomination and as otherwise provided herein.

(c) Book-Entry Provisions . This Section 1(c) shall apply to all Junior Notes evidencing all or part of the Junior Notes that are registered in the name of the U.S. Depositary or a nominee thereof (“ Global Notes ”).

The Issuer shall execute and the Fiscal Agent shall, in accordance with this Section 1(c) and with Section 3, authenticate and deliver one or more Global Notes as required to be issued pursuant to Section 1(b) hereof, which (A) shall be registered in the name of the U.S. Depositary or its nominee, (B) shall be retained by the Fiscal Agent as custodian for the U.S. Depositary and (C) shall bear legends substantially to the following effect:

“UNLESS THIS JUNIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“ DTC ”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY JUNIOR NOTE ISSUED IN EXCHANGE FOR THIS JUNIOR NOTE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

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“THIS JUNIOR NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A JUNIOR NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 6(c) OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT. BENEFICIAL INTERESTS IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 6(c) OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT.”

Neither any members of, or participants in, the U.S. Depositary (“ Agent Members ”) nor any other persons on whose behalf Agent Members may act (including, without limitation, Euroclear and Clearstream Banking and account holders and participants therein) shall have any rights under this Junior Note Fiscal Agency Agreement with respect to any Global Note registered in the name of the U.S. Depositary or any nominee thereof, or under any such Global Note, and the U.S. Depositary or such nominee, as the case may be, may be treated by the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Fiscal Agent or any agent of the Issuer or the Fiscal Agent from giving effect to any written certification, proxy or other authorization furnished by the U.S. Depositary or such nominee, as the case may be, or impair, as between the U.S. Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such persons governing the exercise of the rights of a holder of any Junior Note.

(d) Persons Deemed Owners . The Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name a Junior Note is registered as the absolute owner and holder of such Junior Note for all purposes whatsoever, and none of the Issuer, the Fiscal Agent and any agent of any of them shall be affected by notice to the contrary. Any reference herein and in any Junior Note to the term “ holder ” of a Junior Note or “ registered holder ” shall be to the person in whose name a Junior Note is registered in the register maintained for such purposes pursuant to Section 6 hereof.

(e) Denominations . The Junior Notes shall be issuable in minimum denominations of $1 and integral multiples of $1 in excess thereof.

2. Fiscal Agent; Other Agents . The Issuer hereby appoints The Bank of New York Mellon, acting through its corporate trust office at 101 Barclay Street, New York, New York 10286, Attention: Corporate Finance Group (the “ Corporate Trust Office ”), as fiscal agent of the Issuer in respect of the Junior Notes upon the terms and subject to the conditions herein set forth, and The Bank of New York Mellon hereby accepts such appointment. The Bank of New York

 

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Mellon, and any successor or successors as such fiscal agent qualified and appointed in accordance with Section 10 hereof, are herein called the “ Fiscal Agent. ” The Fiscal Agent shall have the powers and authority granted to and conferred upon it in the Junior Notes and hereby and such further powers and authority to act on behalf of the Issuer as may be mutually agreed upon by the Issuer and the Fiscal Agent. The Fiscal Agent shall keep a copy of this Agreement available for inspection during normal business hours at its Corporate Trust Office. The Fiscal Agent or any Paying Agent (as defined below) shall also act as Transfer Agent (as defined below). All of the terms and provisions with respect to such powers and authority contained in the Junior Notes are subject to and governed by the terms and provisions hereof.

The Issuer may, at its discretion, appoint one or more agents (a “ Paying Agent ” or “ Paying Agents ”) for the payment, to the extent permitted under the Payment Restrictions, of the principal of and any interest on the Junior Notes, and one or more agents (a “ Transfer Agent ” or “ Transfer Agents ”) for the transfer and exchange of Junior Notes, at such place or places as the Issuer may determine; provided , however , that the Issuer shall at all times maintain a Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New York (which Paying Agent and Transfer Agent may be the Fiscal Agent). The Issuer hereby initially appoints the Fiscal Agent at its Corporate Trust Office as Paying Agent, Transfer Agent, authenticating agent and securities registrar, and the Fiscal Agent hereby accepts such appointments. The Transfer Agent shall act as a securities registrar and there shall be kept at the office of the Transfer Agent a register in which, subject to such reasonable regulations as the Issuer may prescribe, the Issuer shall provide for the registration of Junior Notes and the registration of transfers or exchanges of Junior Notes. The Issuer shall promptly notify the Fiscal Agent of the name and address of any other Paying Agent or Transfer Agent appointed by it and of the country or countries in which a Paying Agent or Transfer Agent may act in that capacity, and will notify the Fiscal Agent of the resignation or termination of any such Paying Agent or Transfer Agent. Subject to the provisions of Section 10(c) hereof, the Issuer may vary or terminate the appointment of any such Paying Agent or Transfer Agent at any time and from time to time upon giving not less than 90 days’ notice to such Paying Agent or Transfer Agent, as the case may be, and to the Fiscal Agent. The Issuer shall cause written notice of any resignation, termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent will act to be provided to holders of Junior Notes as soon as reasonably practicable following the Issuer’s receipt of notice thereof.

3. Authentication . The Fiscal Agent is authorized from time to time, upon receipt of Junior Notes duly executed on behalf of the Issuer and in accordance with the written order or orders of the Issuer signed on its behalf by an Authorized Officer, which order or orders shall include confirmation that all conditions precedent to the authentication of such Junior Notes have been met and that authentication of such Junior Notes is authorized and permitted by this Agreement, to manually authenticate and deliver Junior Notes in accordance with the provisions therein and hereinafter set forth.

The Fiscal Agent may, with the consent of the Issuer, appoint by an instrument or instruments in writing, one or more agents (which may include itself) for the authentication of the Junior Notes and, with such consent, vary or terminate any such appointment upon written notice and approve any change in the office through which any authenticating agent acts. The Issuer (by written notice to the Fiscal Agent and the authenticating agent whose appointment is

 

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to be terminated) may also terminate any such appointment at any time. The Fiscal Agent hereby agrees to solicit written acceptances from the entities concerned (in form and substance satisfactory to the Issuer) of such appointments. In its acceptance of such appointment, each such authenticating agent shall agree to act as an authenticating agent pursuant to the terms and conditions of this Agreement.

4. Payment and Cancellation .

(a) Payment . For so long as the Fiscal Agent is acting as a Paying Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, or such other Paying Agent if the Fiscal Agent is no longer acting as a Paying Agent, in immediately available funds on or prior to 11:00 a.m., New York time, on each date on which a payment of principal of or any interest on the Junior Notes shall be payable, as set forth in the text of the Junior Notes, such amounts, in U.S. dollars, as are necessary (with any amounts then held by the Fiscal Agent and available for the purpose) to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on the Junior Notes in the manner, at the times and for the purposes set forth herein and in the text of said Junior Notes; provided that the Issuer will not provide any such funds to the Fiscal Agent prior to such time as the relevant payment of principal or interest is approved by the Commissioner of Insurance of the State of Wisconsin or any successor thereto (the “ Commissioner ”). Permitted payments of principal of or any interest on the Junior Notes to the persons (the “ registered holders ”) in whose names such Junior Notes are registered on the register maintained pursuant to Section 6 hereof at the close of business on the record dates designated in the text of the Junior Notes will be made (i) by wire transfer of immediately available funds to an account maintained by the payee with a bank as specified in the text of the Junior Notes if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of the account to which payment is to be made or, (ii) if no such notice is given, by mailing a check to the payee at the address reflected in the register maintained pursuant to Section 6 hereof. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Junior Notes shall remain in effect with respect to any future payments with respect to such Junior Notes payable to such holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 hereof for the payment, subject to the Payment Restrictions, from funds so paid by the Issuer of the principal of and any interest on the Junior Notes in the manner, at the times and for the purposes set forth herein and in the text of said Junior Notes. Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent (other than the Fiscal Agent) funds for the payment, subject to the Payment Restrictions, of the principal thereof and interest payable thereon under an agreement with respect to such funds containing substantially the same terms and conditions set forth in this Section 4(a) and in Section 9(b) hereof; and the Fiscal Agent shall have no responsibility with respect to any funds so provided by the Issuer to any such Paying Agent. To the extent that the Fiscal Agent is not acting as Paying Agent, references to the Fiscal Agent in this Section 4(a) shall include the Paying Agent in such capacity.

 

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Funds received by the Paying Agent will be applied first to the amounts then due to the Paying Agent, Transfer Agent and Fiscal Agent under Section 9(a) and then to the principal of and interest on the Junior Notes.

Payments of principal of and interest on the Junior Notes shall be made in the manner set forth in the Junior Notes, including the Payment Restrictions set forth therein.

For any amounts due and payable under the Junior Notes that are approved by the Commissioner in accordance with this Section 4(a) and which are due and payable under the Secured Note dated as of March 24, 2010, from Ambac Assurance Corporation to the Issuer (the “ Secured Note ”) or the Aggregate Excess of Loss Reinsurance Agreement, dated as of March 24, 2010, by and between Ambac Assurance Corporation and the Issuer (the “ Aggregate Excess of Loss Reinsurance Agreement ”), as the case may be, the Issuer undertakes to demand payment under the Secured Note or the Aggregate Excess of Loss Reinsurance Agreement, as the case may be, against Ambac Assurance Corporation.

(b) Cancellation . All Junior Notes delivered to the Fiscal Agent (or any other agent appointed by the Issuer pursuant to Section 2 hereof) for payment, redemption or registration of transfer or exchange as provided herein or in the Junior Notes shall be marked “ cancelled ” and, in the case of any other such agent, forwarded to the Fiscal Agent. All such Junior Notes shall be disposed of by the Fiscal Agent in accordance with its customary procedures or by such other person as may be jointly designated by the Issuer and the Fiscal Agent, which, upon the Issuer’s written instructions, shall thereupon furnish certificates of such disposition to the Issuer.

5. Global Notes .

(a) Exchange for Certificated Notes . Notwithstanding any other provisions of this Agreement or the Junior Notes, a Global Note shall not be exchanged in whole or in part for a Junior Note registered in the name of any person other than the U.S. Depositary or one or more nominees thereof; provided that a Global Note may also be exchanged for Junior Notes registered in the names of any person designated by the U.S. Depositary in the event that such exchange is permitted by applicable law and (i) the U.S. Depositary has notified the Issuer that it is unwilling or unable to continue as U.S. Depositary for such Global Note or the U.S. Depositary has ceased to be a “ clearing agency ” registered under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the Issuer fails to appoint a successor depositary within 90 days of receiving such notice, (ii) an event described in paragraph 12(a) or the first sentence of paragraph 12(b) of the Junior Notes has occurred and is continuing with respect to the Junior Notes, (iii) a request for certificates has been made upon 60 days’ prior written notice given to the Fiscal Agent in accordance with the U.S. Depositary’s customary procedures and a copy of such notice has been received by the Issuer from the Fiscal Agent or (iv) the holder of an interest in such Global Note has notified the Fiscal Agent and securities registrar in writing that it is transferring such beneficial interest to an Institutional Accredited Investor and such holder (1) requests in such written notice that certificates be delivered to such transferee and (2) complies with the requirements for transfer specified in Section 6(c)(vi) of this Agreement. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part and any Global Note exchanged pursuant to clause (ii), (iii) or (iv) above may be exchanged in whole or from time to time in part as directed by the U.S. Depositary. Any Junior Note issued in

 

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exchange for a Global Note or any portion thereof shall be a Global Note; provided that any such Junior Note so issued that is registered in the name of a person other than the U.S. Depositary or a nominee thereof shall be in the form of Certificated Notes.

(b) Junior Notes Issued in Exchange for Global Notes . Junior Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the U.S. Depositary shall designate and shall bear the applicable legends provided for herein. Any Global Note to be exchanged in whole shall be surrendered by the U.S. Depositary to the Transfer Agent located in the Borough of Manhattan, The City of New York, to be so exchanged. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered to the Transfer Agent for exchange or, if the Fiscal Agent is acting as custodian for the U.S. Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Fiscal Agent. Upon any such surrender or adjustment, the Fiscal Agent shall authenticate and deliver the Junior Note duly executed by the Issuer in connection with such exchange to or upon the order of the U.S. Depositary or an authorized representative thereof. Any Junior Note delivered in exchange for the Restricted Global Note or any portion thereof shall, except as otherwise provided by Section 6(g), bear the legend regarding transfer restrictions applicable to the Registered Global Note set forth on the form of Junior Note attached as Exhibit B hereto.

(c) Authorization by Registered Holder . Subject to the provisions of Section 1(c) above, the registered holder may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a registered holder of a Junior Note is entitled to take under this Junior Note Fiscal Agency Agreement or the Junior Notes.

(d) Certificated Notes Made Available . In the event of the occurrence of any of the events specified in paragraph (a) of this Section 5, the Issuer will promptly make available to the Fiscal Agent a reasonable supply of executed Certificated Notes.

6. Registration, Transfer and Exchange of Junior Notes .

(a) General . The Fiscal Agent, as agent of the Issuer for this purpose, shall maintain at its Corporate Trust Office in the Borough of Manhattan, The City of New York, a register of Junior Notes for the registration of Junior Notes and the transfers and exchanges thereof. Subject to the provisions of this Section 6, upon presentation for the registration, transfer or exchange of any Junior Note at the office of any Transfer Agent accompanied by a written instrument of transfer or exchange in the form reasonably approved by the Issuer (it being understood that, until notice to the contrary is given to holders of Junior Notes, the Issuer shall be deemed to have approved the form of instrument of transfer or exchange, if any, printed on any Junior Note), executed by the registered holder, in person or by such holder’s attorney thereunto duly authorized in writing, such Junior Note shall be transferred upon the register for the Junior Notes, and a new Junior Note shall be authenticated and issued in the name of the transferee. No transfer shall be effected under this Agreement or the Junior Notes until, and such transferee

 

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shall succeed to the rights of the transferor only upon, final acceptance and registration of transfer by the Fiscal Agent, as Transfer Agent, or by the Transfer Agent if the Fiscal Agent is not so serving, in the register.

(b) Transfers of Restricted Certificated Notes . If a holder of Certificated Notes that bear or are required to bear the legends set forth in the form of Junior Note attached as Exhibit A hereto (“ Restricted Certificated Notes ”) wishes at any time to transfer such Restricted Certificated Notes or to exchange such Restricted Certificated Notes, such exchange or transfer may be effected only in accordance with the provisions of this Section 6(b).

(i) Transfer and Exchange of Restricted Certificated Notes. Upon the receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York, of (i) a Restricted Certificated Note accompanied by a written and executed instrument of transfer or exchange as provided in Section 6(a) and (ii) the following additional information and documents, as applicable:

(1) if such Restricted Certificated Note is owned by the holder thereof and is being exchanged, without transfer, a certification from such holder to that effect, substantially in the form of Exhibit C-1 hereto; or

(2) if such Restricted Certificated Note is transferred pursuant to an exemption from registration in accordance with Rule 144A under the Act (“ Rule 144A ”), Rule 144, Regulation S or such other exemption from registration under the Act, a certification from such holder to that effect and if the Fiscal Agent or the Issuer so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to compliance with the restrictions contained in the legend set forth on the security, the Fiscal Agent shall register the transfer of such Restricted Certificated Note or exchange such Restricted Certificated Note for an equal principal amount of Restricted Certificated Notes of other authorized denominations.

To permit registrations of transfers and exchanges, the Fiscal Agent or Transfer Agent shall communicate to the Issuer any request from a holder of a Junior Note to so transfer or exchange and the Issuer shall execute and the Fiscal Agent (or an authenticating agent appointed pursuant to Section 3) shall authenticate and deliver such Restricted Certificated Note. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Fiscal Agent may require payment by the holder of a Junior Note of a sum sufficient to cover any transfer tax or other governmental charge payable in connection with any registration of transfer or exchange.

All Junior Notes issued upon any registration of transfer or exchange of Junior Notes shall be the valid obligations of the Issuer, subject to the Payment Restrictions, evidencing the same debt, and the applicable provisions of this Agreement shall apply equally thereto, as to the Junior Notes surrendered upon such registration of transfer or exchange.

(ii) Transfer of a Restricted Certificated Note for a Beneficial Interest in a Global Note. Upon the receipt by the Fiscal Agent, as Transfer Agent, at its Corporate

 

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Trust Office in The City of New York of (i) a Restricted Certificated Note accompanied by a written and executed instrument of transfer or exchange as provided in Section 6(a), (ii) written instructions from an Agent Member directing the Fiscal Agent to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Restricted Global Note or the Permanent Regulation S Global Note, as the case may be, having a principal amount equal to the principal amount of the Restricted Certificated Note so transferred, (iii) a written order containing information regarding the account of the Agent Member to be credited with such beneficial interest and (iv) the following additional documents, as applicable:

(1) if such Restricted Certificated Note is transferred pursuant to an exemption from registration in accordance with Regulation S or Rule 144 under the Act, a certification from such holder to that effect, substantially in the form of Exhibit C-2 hereto;

(2) if such Restricted Certificated Note is transferred pursuant to an exemption from registration in accordance with Rule 144A under the Act, a certification from such holder to that effect substantially in the form of Exhibit C-3 hereto; or

(3) if such Restricted Certificated Note is transferred pursuant to any other exemption from registration under the Act, a certification from such holder to that effect and if the Fiscal Agent or the Issuer so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to compliance with the restrictions contained in the legend set forth on the security,

the Fiscal Agent shall cancel such Restricted Certificated Note and shall instruct the U.S. Depositary to increase the principal amount of the Restricted Global Note or the Permanent Regulation S Global Note, as the case may be, by the principal amount of the Restricted Certificated Note so transferred, and to credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Restricted Global Note or the Permanent Regulation S Global Note, as the case may be, having a principal amount equal to the principal amount of the Restricted Certificated Note so transferred.

(c) Transfers of Global Notes and Interests Therein . Notwithstanding any other provision of this Agreement or the Junior Notes, transfers of a Global Note, in whole or in part, and transfers of interests therein of the kind described in clauses (ii), (iii) or (iv) below, shall be made only in accordance with this Section 6(c), and all transfers of an interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note shall comply with Section 6(c)(iv) or (v) below, as applicable.

(i) General . A Global Note may not be transferred, in whole or in part, to any person other than the U.S. Depositary or a nominee thereof, and no such transfer to any such other person may be registered; provided that this clause (i) shall not prohibit any transfer of a Junior Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Junior Note to any person shall be effective under this

 

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Agreement or the Junior Notes unless and until such Junior Note has been registered in the name of such person. The transfer and exchange of any beneficial interest in Global Notes shall be effected through the U.S. Depositary in accordance with this Agreement (including applicable restrictions on transfer set forth herein, if any) and the procedures of the U.S. Depositary therefor and nothing in this Section 6(c)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 6(c).

(ii) Restricted Global Note to Temporary Regulation S Global Note . If the holder of a beneficial interest in the Restricted Global Note wishes at any time to transfer such interest to a person who wishes to take delivery thereof in the form of a beneficial interest in the Temporary Regulation S Global Note, such transfer may be effected, subject to the rules and procedures of the U.S. Depositary, Euroclear and Clearstream Banking, in each case to the extent applicable (the “ Applicable Procedures ”), only in accordance with the provisions of this Section 6(c)(ii). Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Fiscal Agent to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Temporary Regulation S Global Note in a principal amount equal to that of the beneficial interest in the Restricted Global Note to be so transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member (and the Euroclear or Clearstream Banking account, as the case may be) to be credited with, and the account of the Agent Member to be debited for, such beneficial interest and (3) a certificate in substantially the form of Exhibit D attached hereto given by the holder of such beneficial interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S. Depositary to reduce the principal amount of the Restricted Global Note, and to increase the principal amount of the Temporary Regulation S Global Note, by the principal amount of the beneficial interest in the Restricted Global Note to be so transferred, and to credit or cause to be credited to the account of the person specified in such instructions (which shall be the Agent Member for Euroclear or Clearstream Banking or both, as the case may be) a beneficial interest in the Temporary Regulation S Global Note having a principal amount equal to the amount by which the principal amount of the Restricted Global Note was reduced upon such transfer.

(iii) Restricted Global Note to Permanent Regulation S Global Note . If the holder of a beneficial interest in the Restricted Global Note wishes at any time after the expiration of the Restricted Period to transfer such interest to a person who wishes to take delivery thereof in the form of a beneficial interest in the Permanent Regulation S Global Note, such transfer may be effected, subject to the Applicable Procedures, only in accordance with this Section 6(c)(iii). Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Fiscal Agent to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Permanent Regulation S Global Note in a principal amount equal to that of the beneficial interest in the Restricted Global Note to be so transferred, (2) a written order given in accordance with the Applicable Procedures containing information

 

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regarding the account of the Agent Member (and, in the case of any such transfer pursuant to Regulation S, if such account is held for Euroclear or Clearstream Banking the Euroclear or Clearstream Banking account for which such Agent Member’s account is held) to be credited with, and the account of the Agent Member to be debited for, such beneficial interest and (3) a certificate in substantially the form of Exhibit E attached hereto given by the holder of such beneficial interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S. Depositary to reduce the principal amount of the Restricted Global Note, and to increase the principal amount of the Permanent Regulation S Global Note, by the principal amount of the beneficial interest in the Restricted Global Note to be so transferred, and to credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Permanent Regulation S Global Note having a principal amount equal to the amount by which the principal amount of the Restricted Global Note was reduced upon such transfer.

(iv) Temporary Regulation S Global Note or Permanent Regulation S Global Note to Restricted Global Note . If the holder of a beneficial interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note wishes at any time to transfer such interest to a person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note, such transfer may be effected, subject to the Applicable Procedures, only in accordance with this Section 6(c)(iv). Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member, directing the Fiscal Agent, as Transfer Agent, to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Restricted Global Note equal to that of the beneficial interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note to be so transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member to be credited with, and the account of the Agent Member (and if such account is held for Euroclear or Clearstream Banking, the Euroclear or Clearstream Banking account, as the case may be) to be debited for, such beneficial interest, and (3) with respect to a transfer of a beneficial interest in the Temporary Regulation S Global Note, a certificate substantially in the form of Exhibit F hereto given by the holder of such beneficial interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S. Depositary to reduce the principal amount of the Temporary Regulation S Global Note or the Permanent Regulation S Global Note, as the case may be, and increase the principal amount of the Restricted Global Note, by the principal amount of the beneficial interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note, as the case may be, to be so transferred, and to credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Restricted Global Note having a principal amount equal to the amount by which the principal amount of the Temporary Regulation S Global Note or the Permanent Regulation S Global Note, as the case may be, was reduced upon such transfer.

(v) Interests in Temporary Regulation S Global Note to be Held Through Euroclear or Clearstream Banking . Until the termination of the Restricted Period, any interest in the Temporary Regulation S Global Note may be held only through Agent Members acting for and on behalf of Euroclear and Clearstream Banking, and any

 

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purchaser of Junior Notes in a sale made in reliance on Regulation S may not sell or offer to sell such Junior Notes within the United States or to a U.S. person or for the account or benefit of a U.S. person within the meaning of Regulation S; provided that this clause (v) shall not prohibit any transfer in accordance with Section 6(c)(iv) hereof.

(vi) Other Exchanges . In the event that a Global Note, any portion thereof or a beneficial interest therein is exchanged for Junior Notes other than Global Notes, such other Junior Notes may in turn be exchanged (on transfer or otherwise) for Junior Notes that are not Global Notes or for beneficial interests in a Global Note (if any is then outstanding) only in accordance with such procedures, which shall be substantially consistent with the provisions of Section 6(b); provided that any beneficial interest in the Temporary Regulation S Global Note shall not be exchangeable for a Certificated Note until the expiration of the Restricted Period.

(d) Registration of Transfers and Exchanges . Successive registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the securities register. No service charge shall be made to a holder for any registration of transfer or exchange of the Junior Notes, but the Fiscal Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith and any other amounts required to be paid by the provisions of the Junior Notes.

(e) Information from Transfer Agent . Any Transfer Agent appointed pursuant to Section 2 hereof shall provide to the Fiscal Agent such information as the Fiscal Agent may reasonably require in connection with the delivery by such Transfer Agent of Junior Notes upon transfer or exchange of Junior Notes.

(f) Periods of Non-registration . No Transfer Agent shall be required to make registrations of transfer or exchange of Junior Notes during any periods designated in the text of the Junior Notes as periods during which such registration of transfer and exchanges need not be made.

(g) Legend . If Junior Notes are issued upon the transfer, exchange or replacement of Junior Notes not bearing the legends required, as applicable, by the Act and by the forms of Junior Notes attached as Exhibit A or Exhibit B hereto, which legends are set forth in the forms of Junior Notes attached as Exhibit A or Exhibit B hereto (collectively, the “ Legend ”), the Junior Notes so issued shall not bear the Legend. If Junior Notes are issued upon the transfer, exchange or replacement of Junior Notes bearing the Legend, or if a request is made to remove the Legend on a Junior Note, the Junior Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Issuer such satisfactory evidence, which may include an opinion of counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Act or that such Junior Notes are not “ restricted securities ” within the meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence, the Fiscal Agent, at the written direction of the Issuer, shall authenticate and deliver a Junior Note that does not bear the Legend or may remove the Legend, as the case may be. The Issuer agrees to indemnify the Fiscal Agent for, and to hold it harmless against, any loss, liability

 

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or expense, including the fees and expenses of counsel, reasonably incurred, arising out of or in connection with actions taken or omitted by the Fiscal Agent in reliance upon such legal opinion and the delivery of a Junior Note that does not bear a Legend. Upon any request for sale or other transfer of a Junior Note (including any Global Note) bearing such Legend (a “ Restricted Note ”) made subsequent to the date which is one year (or for such period as may otherwise be required by Rule 144 under the Act, or any successor rule or regulation permitting resales of the Junior Notes without any conditions) after the later of the date of original issuance of the Junior Notes and the last date on which the Issuer or an affiliate of the Issuer, within the meaning of Rule 144 under the Act, was the holder of such Restricted Note and with respect to which a certification is furnished by the transferor in substantially the form of Exhibit H hereto, (i) in the case of any definitive Restricted Note, the Fiscal Agent, or the Transfer Agent if the Fiscal Agent does not also act as the Transfer Agent, will permit the holder thereof to exchange such Restricted Note for definitive Junior Notes that do not bear the Legend and such request will be effective to rescind any restriction on the further transfer of such Junior Note, and (ii) any such Restricted Notes represented by a Global Note will not be subject to any restriction on transfer and may, at the direction of the Issuer, be exchanged for a Global Note that does not bear the Legend; in each such case, such Junior Notes (whether in definitive or global form) will no longer constitute Restricted Notes.

(h) Repurchases by Issuer . With the prior approval of the Commissioner (save that no such prior approval shall be required for an affiliate of the Issuer that is not Ambac Assurance Corporation or a subsidiary of Ambac Assurance Corporation), the Issuer and any person that constitutes an affiliate of the Issuer within the meaning of the Act may at any time purchase Junior Notes in the open market or otherwise at any price, for its own account or the account of others. Any Junior Note so purchased by the Issuer or any affiliate (other than an affiliate that is not Ambac Assurance Corporation or any subsidiary thereof) for its own account shall not thereafter be re-issued or resold, except pursuant to an exemption from registration under the Act.

7. Redemption . Subject to the Payment Restrictions, including the prior approval of the Commissioner, the Junior Notes may be redeemed, as a whole or in part, at the option of the Issuer at any time and from time to time, at the Redemption Price set forth in paragraph 13 of the Junior Notes. The Junior Notes may not be redeemed at the option of a holder thereof.

(a) Notice to Fiscal Agent . If the Issuer elects to redeem Junior Notes pursuant to paragraph 13 of the Junior Notes, it shall notify the Fiscal Agent in writing of the date designated for redemption, the aggregate principal amount of Junior Notes to be redeemed, the Redemption Price (as defined in the Junior Notes) and that such redemption is being made pursuant to paragraph 13 of the Junior Notes. The Issuer shall give each notice to the Fiscal Agent provided for in this Section not less than 45 days (unless a shorter period is acceptable to the Fiscal Agent) nor more than 60 days before the date designated for redemption.

(b) Selection of Junior Notes to be Redeemed . If less than all the Junior Notes are to be redeemed, each Outstanding Junior Note shall be redeemed, pro rata; provided that if at the time of redemption such Junior Notes are registered as a Global Note, the U.S. Depositary for such Global Note shall determine, in accordance with its procedures, the principal amount of such Junior Notes to be redeemed held by each holder of a beneficial interest in such Global

 

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Note. The Fiscal Agent shall notify the Issuer promptly of the Junior Notes or portion thereof selected to be redeemed. Notwithstanding any provision hereof or of the Junior Notes to the contrary, the Issuer shall not redeem any other junior surplus or contribution notes or similar obligations or indebtedness issued from time to time by the Issuer or the General Account (or any successor or assign thereof in respect of such notes or similar obligations or indebtedness) that rank pari passu with the Junior Notes unless it also redeems a pro rata amount of the Junior Notes. In addition, neither the Issuer nor the General Account shall make any payments of interest or principal on any junior surplus or contribution notes or similar obligations or indebtedness that rank junior to the Junior Notes until all accrued interest and the principal amount of the Junior Notes has been paid in full. No junior surplus notes issued by the Segregated Account or the General Account that rank pari passu with or junior to the Junior Notes shall be on terms that are materially more favorable to the holders of such notes than the Junior Notes.

(c) Notice of Redemption; Effect of Notice . Notices to redeem Junior Notes shall be given by the Fiscal Agent on behalf of and at the expense of the Issuer in the manner provided in paragraph 13 of the Junior Notes. The effect of such notice shall be as set forth in such paragraph 13.

(d) Junior Notes Redeemed in Part . Any Junior Note which is to be redeemed only in part shall be surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer and the Fiscal Agent duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver to the holder of such Junior Note without service charge, a new registered Junior Note or Junior Notes, of any authorized denomination as requested by such holder, and as permitted by Section 1(d) of this Agreement, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Junior Note so surrendered.

8. Delivery of Certain Information . At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a holder of a Junior Note or beneficial interest in a Global Note, the Issuer shall promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such holder, or to a prospective purchaser of such Junior Note or interest designated by such holder, in order to permit compliance by such holder with Rule 144A under the Act in connection with the resale of such Junior Note by such holder. “ Rule 144A Information ” shall be such information as is specified pursuant to paragraph (d)(4) of Rule 144A (or any successor provision thereto), as such provisions (or successor provision) may be amended from time to time.

9. Conditions of Fiscal Agent’s Obligations . The Fiscal Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Issuer agrees and all of which are applicable to the Junior Notes and the holders from time to time thereof:

(a) Compensation and Indemnity . The Fiscal Agent shall be entitled to such compensation as agreed from time to time in writing with the Issuer for all services rendered by it, and the Issuer agrees promptly to pay such compensation and to reimburse the Fiscal Agent

 

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for the reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by it in connection with or arising out of its services hereunder, or the issuance of the Junior Notes and their offering and sale. The Issuer also agrees to indemnify the Fiscal Agent for, and to hold it harmless against, any loss, damages, claim, liability or expense, incurred without bad faith, negligence, fraud or willful misconduct, arising out of or in connection with its acting as Fiscal Agent, Transfer Agent or Paying Agent hereunder, as well as the reasonable costs and expenses actually incurred by the Fiscal Agent of defending against any claim of liability in the premises. The Issuer undertakes to pursue all of its payment rights under each of the Secured Note dated as of March 24, 2010, from Ambac Assurance Corporation to the Issuer and the Cooperation Agreement, dated as of March 24, 2010, by and between Ambac Assurance Corporation and the Issuer against Ambac Assurance Corporation for any amounts due to the Fiscal Agent pursuant to this Agreement. The obligations of the Issuer under this Section 9(a) shall survive payment of all the Junior Notes, the resignation or removal of the Fiscal Agent or the termination of this Agreement.

(b) Agency . In acting under this Agreement and in connection with the Junior Notes, the Fiscal Agent is acting solely as agent of the Issuer and does not assume any responsibility for the correctness of the recitals in the Junior Notes (except for the correctness of the statement in its certificate of authentication thereon) or any obligation or relationship of agency or trust, for or with any of the owners or holders of the Junior Notes, except that all funds held by the Fiscal Agent for the payment of principal of and any interest on the Junior Notes, to the extent permitted under the Payment Restrictions, shall be held in trust for such owners or holders, as the case may be, as set forth herein and in the Junior Notes; provided , however , that monies held in respect of the Junior Notes remaining unclaimed at the end of two years after such principal and such interest shall have become payable in accordance with the Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer. Upon such repayment, the aforesaid trust with respect to the Junior Notes shall terminate and all liability of the Fiscal Agent and Paying Agents with respect to such funds shall thereupon cease.

(c) Advice of Counsel . The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may consult with their respective counsel or other independent counsel satisfactory to them (to the extent such consultation is contemplated by the terms of this Agreement, at the expense of the Issuer), and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by them hereunder, provided, that such action is without bad faith, negligence, fraud or willful misconduct on its part and in accordance with such advice or opinion.

(d) Reliance . The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof each shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Junior Note, notice, direction, consent, certificate (including a certificate of an Authorized Officer delivered to the Fiscal Agent), affidavit, statement, or other paper or document believed by it, acting without bad faith, negligence, fraud or willful misconduct on its part, to be genuine and to have been passed upon or signed by the proper parties.

 

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(e) Interest in Junior Notes, etc . The Fiscal Agent, any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof and their respective officers, directors and employees may become the owners of, or acquire any interest in, any Junior Notes, with the same rights that they would have if they were not the Fiscal Agent, such other Paying Agent or Transfer Agent or such person, and may engage or be interested in any financial or other transaction with the Issuer, and may act on, or as depositary, trustee or agent for, any committee or body of holders of Junior Notes or other obligations of the Issuer, as freely as if they were not the Fiscal Agent, such other Paying Agent or Transfer Agent or such person.

(f) Non-Liability for Interest . Subject to any agreement between the Issuer and the Fiscal Agent to the contrary, the Fiscal Agent shall not be under any liability for interest on monies at any time received by it pursuant to any of the provisions of this Agreement or the Junior Notes.

(g) Certifications . Whenever in the administration of this Agreement the Fiscal Agent shall deem it desirable that a matter of fact be proved or established prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith, negligence, fraud or willful misconduct on its part, rely upon a certificate signed by an Authorized Officer and delivered to the Fiscal Agent as to such matter of fact.

(h) No Implied Obligations . The duties and obligations of the Fiscal Agent, the Transfer Agent and the Paying Agent with respect to matters governed by this Agreement shall be determined solely by the express provisions hereof, and none of the Fiscal Agent, the Transfer Agent or the Paying Agent shall be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement and the Junior Notes, as applicable, and no implied covenants or obligations shall be read into this Agreement or the Junior Notes against the Fiscal Agent, the Transfer Agent or the Paying Agent and the Fiscal Agent, the Transfer Agent and the Paying Agent shall be protected and incur no liability in respect of any action taken or omitted to be taken hereunder by the Fiscal Agent, the Transfer Agent or the Paying Agent without bad faith, negligence, fraud or willful misconduct on its part. Nothing in this Agreement shall be construed to require the Fiscal Agent, the Transfer Agent or the Paying Agent to advance or expend their own funds or take any action that may, in their opinion, expose them to any liability unless they receive indemnity satisfactory to them.

(i) Enforceability of Rights . The rights, privileges, protections, immunities and benefits given to the Fiscal Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Fiscal Agent in each of its capacities hereunder, and each agent, custodian and other person employed to act hereunder.

(j) Agents . The Fiscal Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys or custodians.

(k) Damages . In no event shall the Fiscal Agent be liable, directly or indirectly, for any special, indirect or consequential damages (including lost profits), even if the Fiscal Agent has been advised of the possibility of such damages.

 

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(l) Recitals . The recitals contained in this Agreement and in the Junior Notes (except the Fiscal Agent’s certificates of authentication) shall be taken as the statements of the Issuer and the Fiscal Agent does not assume any responsibility for the correctness of the same. The Fiscal Agent does not make any representation (other than with respect to itself) as to the validity or sufficiency of this Agreement or the Junior Notes, except for the Fiscal Agent’s due authorization, execution and delivery of this Agreement. The Fiscal Agent shall not be accountable for the use or application by the Issuer of any of the Junior Notes or the proceeds thereof.

(m) Occurrences Beyond Reasonable Control . In no event shall the Fiscal Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services or the unavailability of the Federal Reserve Bank; it being understood that the Fiscal Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

(n) Default of the Issuer . Except as specifically set forth in this Agreement, the Fiscal Agent shall not have any duty or responsibility in case of any default by the Issuer in the performance of its obligations (including, without limiting the generality of the foregoing, any duty or responsibility to accelerate all or any of the Junior Notes or to initiate or to attempt to initiate any proceedings at law or otherwise or to make any demand for the payment thereof upon the Issuer).

10. Resignation, Removal and Appointment of Successor .

 

(a) Fiscal Agent and Paying Agent . The Issuer agrees, for the benefit of the holders from time to time of the Junior Notes, that there shall at all times be a Fiscal Agent hereunder which shall be a bank or trust company organized and doing business under the laws of the United States of America or the State of New York, in good standing and having an established place of business in the Borough of Manhattan, The City of New York, and authorized under such laws to exercise corporate trust powers, until all the Junior Notes authenticated and delivered hereunder (i) shall have been delivered to the Fiscal Agent for cancellation or (ii) have become payable, with the approval of the Commissioner, and monies sufficient to pay the full principal of and any interest remaining unpaid on the Junior Notes shall have been made available for payment and either paid or returned to the Issuer as provided herein and in such Junior Notes.

(b) Resignation and Removal . The Fiscal Agent may at any time resign by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective; provided that such date shall not be less than 60 days from the date on which such notice is given, unless the Issuer agrees to accept shorter notice. The Fiscal Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed on behalf of the Issuer and specifying such removal and the date when it shall become effective. Notwithstanding the dates of effectiveness of resignation or removal, as the

 

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case may be, to be specified in accordance with the preceding sentences, such resignation or removal shall take effect only upon the appointment by the Issuer, as hereinafter provided, of a successor Fiscal Agent (which, to qualify as such, shall for all purposes hereunder be a bank or trust company organized and doing business under the laws of the United States of America or of the State of New York, in good standing and having and acting through an established place of business in the Borough of Manhattan, The City of New York, authorized under such laws to exercise corporate trust powers and having a combined capital and surplus in excess of $50,000,000) and the acceptance of such appointment by such successor Fiscal Agent. Upon its resignation or removal, the Fiscal Agent shall be entitled to payment by the Issuer pursuant to Section 9 hereof of compensation for services rendered and to reimbursement of reasonable out-of-pocket expenses incurred hereunder. If a successor Fiscal Agent does not take office within 60 days after the retiring Fiscal Agent provides written notice of its intent to resign or is removed, the retiring Fiscal Agent at the expense of the Issuer, the Issuer or the holders of at least 10% in aggregate principal amount of the Junior Notes then Outstanding (as defined in Section 11(d) herein) may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent.

(c) Successors . In case at any time the Fiscal Agent (or any Paying Agent if such Paying Agent is the only Paying Agent located in a place where, by the terms of the Junior Notes or this Agreement, the Issuer is required to maintain a Paying Agent) shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they severally mature, or if a receiver of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of applicable receivership, bankruptcy, insolvency or other similar legislation, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose of rehabilitation, liquidation, conservation or dissolution, a successor Fiscal Agent or Paying Agent, as the case may be, qualified as aforesaid (in the case of the Fiscal Agent), shall be appointed by the Issuer by an instrument in writing, filed with the successor Fiscal Agent or Paying Agent, as the case may be, and the predecessor Fiscal Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of a successor Fiscal Agent or Paying Agent, as the case may be, and acceptance by such successor of such appointment, the Fiscal Agent or Paying Agent, as the case may be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the case may be, hereunder. If no successor Fiscal Agent or other Paying Agent, as the case may be, shall have been so appointed by the Issuer and shall have accepted appointment as hereinafter provided, and, in the case of such other Paying Agent, if such other Paying Agent is the only Paying Agent located in a place where, by the terms of the Junior Notes or this Agreement, the Issuer is required to maintain a Paying Agent, then any holder of a Junior Note who has been a bona fide holder of a Junior Note for at least six months (which Junior Note, in the case of such other Paying Agent, is referred to in this sentence), on behalf of such holder and all others similarly situated, or the Fiscal Agent, may petition any court of competent jurisdiction for the appointment of a successor fiscal or paying agent, as the case may be. The Issuer shall give prompt written notice to each other Paying Agent of the appointment of a successor Fiscal Agent.

 

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(d) Acknowledgement . Any successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder. Upon delivery of such instrument, such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Fiscal Agent hereunder and all provisions hereof shall be binding on such successor Fiscal Agent. Furthermore, upon delivery of such instrument, such predecessor, upon payment of its compensation and reimbursement of its disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Fiscal Agent shall be entitled to receive, all monies, securities, books, records or other property on deposit with or held by such predecessor as Fiscal Agent hereunder. Upon delivery of such property, such predecessor Fiscal Agent shall become entitled to payment by the Issuer of its compensation and reimbursement of its disbursements then unpaid from such successor Fiscal Agent.

(e) Merger, Consolidation, etc . Any bank or trust company into which the Fiscal Agent hereunder may be merged, or resulting from any merger or consolidation to which the Fiscal Agent shall be a party, or to which the Fiscal Agent shall sell or otherwise transfer all or substantially all the agency and trust business of the Fiscal Agent; provided that it shall be qualified as aforesaid, shall be the successor Fiscal Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.

11. Meetings and Amendments .

(a) Calling of Meeting, Notice and Quorum . A meeting of holders of Junior Notes may be called at any time and from time to time to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement or the Junior Notes to be made, given or taken by holders of Junior Notes or to modify, amend or supplement the terms of the Junior Notes or this Agreement as hereinafter provided, and subject to the requirement hereinafter set forth that the Issuer and the Fiscal Agent may, only with the prior approval of the Commissioner, modify, amend or supplement this Agreement or the terms of the Junior Notes or give consents or waivers or take other actions with respect thereto. The Fiscal Agent may at any time call a meeting of holders of Junior Notes for any such purpose to be held at such time and at such place in the Borough of Manhattan, The City of New York as the Fiscal Agent shall determine. Notice of every meeting of holders of Junior Notes, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given as provided in the terms of the Junior Notes, not less than 30 nor more than 60 days prior to the date fixed for the meeting (provided that, in the case of any meeting to be reconvened after adjournment for lack of a quorum, such notice shall be so given not less then 15 nor more than 60 days prior to the date fixed for such meeting). In case at any time the Issuer or the holders of at least 10% in aggregate principal amount of the Outstanding Junior Notes (as defined in subsection (d) of this Section) shall have requested the Fiscal Agent to call a meeting of the holders of Junior Notes for any such purpose, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, the Fiscal Agent shall call such meeting for such purposes by giving notice thereof.

 

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To be entitled to vote at any meeting of holders of Junior Notes, a person shall be a holder of Outstanding Junior Notes or a person duly appointed by an instrument in writing as proxy for such a holder. The persons entitled to vote a majority in principal amount of the Outstanding Junior Notes shall constitute a quorum. The Fiscal Agent may make such reasonable and customary regulations consistent herewith as it shall deem advisable for any meeting of holders of Junior Notes with respect to the proof of the appointment of proxies in respect of holders of Junior Notes, the record date for determining the registered holders of Junior Notes who are entitled to vote at such meeting (which date shall be designated by the Fiscal Agent and set forth in the notice calling such meeting hereinabove referred to and which shall be not less than 15 nor more than 60 days prior to such meeting; provided that nothing in this paragraph shall be construed to render ineffective any action taken by holders of the requisite principal amount of Outstanding Junior Notes on the date such action is taken), the adjournment and chairmanship of such meeting, the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.

(b) Approval .

(i) At any meeting of holders of Junior Notes duly called and held as specified above, upon the affirmative vote, in person or by proxy thereunto duly authorized in writing, of the holders of not less than a majority in aggregate principal amount of the Junior Notes then Outstanding, or (ii) with the written consent of the holders of not less than a majority in aggregate principal amount of the Junior Notes then Outstanding, in each case (i) or (ii) the Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, modify, amend or supplement the terms of the Junior Notes or this Agreement in any way, and the holders of Junior Notes may make, take or give any request, demand, authorization, direction, notice, consent, waiver (including waiver of future compliance or past failure to perform) or other action provided by this Agreement or the Junior Notes to be made, given or taken by holders of Junior Notes; provided that no such action, modification, amendment or supplement, however effected, may, without the consent of the holder of each Junior Note affected thereby, (A) change the Scheduled Interest Payment Date (as defined in the Junior Notes) or Scheduled Maturity Date of the principal of or any installment of interest on any Junior Note, (B) reduce the principal amount of any Junior Note or the interest rate thereon, (C) change the currency in which, or the required place at which, payment with respect to interest or principal in respect of the Junior Notes is payable, (D) change the Issuer’s obligations under Section 8 hereof in any manner adverse to the interests of the holder of a Junior Note, (E) impair the right of a holder of a Junior Note to institute suit for the enforcement of any payment, if such payment is permitted under the Payment Restrictions, on or with respect to any Junior Note, (F) modify the provisions of paragraph 8 of the Junior Notes in a manner adverse to the holders of the Junior Notes, (G) reduce the above-stated percentage of the principal amount of Outstanding Junior Notes, the vote or consent of the holders of which is necessary to modify, amend or supplement this Agreement or the terms and conditions of the Junior Notes or to make, take or give any request, demand, authorization, direction, notice, consent, waiver (including waiver of any future compliance or past failure to perform) or other action provided hereby or thereby to be made, taken or given, (H) reduce the percentage of aggregate principal amount of Outstanding Junior Notes necessary to constitute a quorum at any meeting of holders of Junior Notes at which a resolution is adopted, or (I) change the restrictions on payment of principal of or interest on or redemption payment with respect to the Junior Notes in a manner adverse to the holders of the Junior Notes.

 

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The Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, without the vote or consent of any holder of Junior Notes, amend this Agreement or the Junior Notes for the purpose of (a) adding to the covenants of the Issuer for the benefit of the holders of Junior Notes, (b) surrendering any right or power conferred upon the Issuer, (c) securing the Junior Notes, (d) evidencing the succession of another entity to the Issuer and the assumption by such successor of the covenants and obligations of the Issuer herein and in the Junior Notes as permitted by this Agreement and the Junior Notes, (e) modifying the restrictions on, and procedures for, resale and other transfers of the Junior Notes to the extent required by any change in applicable law or regulation, or the interpretation thereof, or in practices relating to the resale or transfer of restricted securities generally, (f) accommodating the issuance, if any, of Junior Notes in book-entry or certificated form and matters related thereto which do not adversely affect the interest of any Junior Note holder in any material respect, (g) curing any ambiguity or correcting or supplementing any defective provision contained herein or in the Junior Notes in a manner which does not adversely affect the interest of any Junior Note holder in any material respect, or (h) effecting any amendment which the Issuer and the Fiscal Agent may determine is necessary or desirable and which shall not adversely affect the interest of any Junior Note holder.

It shall not be necessary for the vote or consent of the holders of Junior Notes to approve the particular form of any proposed modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action, but it shall be sufficient if such vote or consent shall approve the substance thereof.

The Fiscal Agent shall receive an opinion of counsel in connection with any amendment or supplement entered into hereunder stating that all conditions precedent to such amendment or supplement have been fulfilled and that the Fiscal Agent’s entering into such amendment or supplement is authorized and permitted under this Agreement.

(c) Binding Nature of Amendments, Notices, Notations, etc . Any instrument given by or on behalf of any holder of a Junior Note in connection with any consent to or vote for any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action shall be irrevocable once given and shall be conclusive and binding on all subsequent holders of such Junior Note or any Junior Note issued directly or indirectly in exchange or substitution therefor or in lieu thereof. Any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action taken, made or given in accordance with Section 11(b) hereof shall be conclusive and binding on all holders of Junior Notes, whether or not they have given such consent or cast such vote or were present at any meeting, and whether or not notation of such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action is made upon the Junior Notes. Notice of any modification or amendment of, supplement to, or request, demand, authorization, direction, notice, consent, waiver or other action with respect to the Junior Notes or this Agreement (other than for purposes of curing any ambiguity or of curing, correcting or supplementing any defective provision hereof or thereof) shall be given to each holder of Junior Notes affected thereby, in all cases as provided in the Junior Notes.

 

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Junior Notes authenticated and delivered after the effectiveness of any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may bear a notation in the form approved by the Fiscal Agent and the Issuer as to any matter provided for in such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action. New Junior Notes modified to conform, in the opinion of the Fiscal Agent and the Issuer, to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action taken, made or given in accordance with Section 11(b) hereof may be prepared and executed by the Issuer, authenticated by the Fiscal Agent and delivered in exchange for Outstanding Junior Notes.

(d) “ Outstanding” Defined . For purposes of the provisions of this Agreement and the Junior Notes, any Junior Note authenticated and delivered pursuant to this Agreement shall, as of any date of determination, be deemed to be “ Outstanding, ” except:

(i) Junior Notes theretofore cancelled by the Fiscal Agent or delivered to the Fiscal Agent for cancellation;

(ii) Junior Notes which have been called for redemption in accordance with their terms or which have become payable, to the extent permitted under the Payment Restrictions, at the Scheduled Maturity Date or otherwise, and with respect to which, in each case, monies sufficient to pay the principal thereof and any interest thereon shall have been paid; and

(iii) Junior Notes paid under paragraph 10 of the Junior Notes or in lieu of or in substitution for which other Junior Notes shall have been authenticated and delivered pursuant to this Agreement;

provided , however , that in determining whether the holders of the requisite principal amount of Outstanding Junior Notes are present at a meeting of holders of Junior Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment, modification or supplement hereunder, the principal amount of any Junior Notes that are beneficially owned by the Issuer, Ambac Assurance Corporation or any subsidiary of Ambac Assurance Corporation, or the voting of which the Issuer, Ambac Assurance Corporation or any subsidiary of Ambac Assurance Corporation has the right to direct with respect to such request, demand, authorization, direction, notice, consent, waiver, amendment, modification or supplement, shall be disregarded in such calculation (in both the numerator and the denominator). The Fiscal Agent shall incur no liability for failing to disregard any Junior Note owned directly or indirectly by the Issuer, Ambac Assurance Corporation or any subsidiary of Ambac Assurance Corporation in the absence of actual knowledge of that circumstance by a corporate trust officer of the Fiscal Agent responsible for the administration of this Agreement.

 

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(e) No Rights as Equity Owner . For the avoidance of doubt, none of the provisions of this Section 11 or any provisions contained elsewhere in this Agreement or in the Junior Notes shall be deemed to create rights in favor of any holder of Junior Notes as an equity owner of Ambac Assurance Corporation.

12. Remedies . Holders of Junior Notes may enforce this Agreement or the Junior Notes only in the manner set forth below.

(a) Acceleration of Maturity . In the event that any state or federal agency shall obtain an order or grant approval (excluding any Excluded Order) for the rehabilitation, liquidation, conservation, dissolution, receivership or any similar action of the Issuer or the General Account (including, without limitation, under Chapter 645 of the Wisconsin Statutes), the Junior Notes will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the Fiscal Agent or any holder of the Junior Notes, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Agreement or the Junior Notes, in no event shall the Fiscal Agent or any holder of the Junior Notes be entitled to declare the Junior Notes to immediately mature or otherwise be immediately payable, except that payments approved by the Commissioner but unpaid may become immediately payable in accordance with clause (b) below.

(b) Failure to Pay or Perform Other Obligations . In the event that the Commissioner approves in whole or in part a payment of any interest on or principal of, or any redemption payment with respect to, any Junior Notes and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of the Fiscal Agent or any holder of Junior Notes. In the event that the Issuer fails to perform any of its other obligations hereunder or under the Junior Notes (or otherwise abide by any of the other terms hereof or of the Junior Notes), each holder of the Junior Notes may pursue any available remedy to enforce the performance of any provision of such Junior Notes or this Agreement; provided , however , that such remedy shall in no event include the right to declare the Junior Notes immediately payable, except for payments approved by the Commissioner, and shall in no circumstances be inconsistent with the provisions of applicable law. A delay or omission by any Junior Note holder in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder or under the Junior Notes (or otherwise abide by any of the other terms hereof or of the Junior Notes) and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Rights of Holders . Notwithstanding any other provision of this Agreement or the Junior Notes, the right of any holder of Junior Notes to receive payment of the principal of and interest on such holder’s Junior Notes on or after the respective scheduled payment or scheduled maturity dates expressed in such Junior Notes, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to such payment on such dates having received the approval of the Commissioner pursuant to the Payment Restrictions, is absolute and unconditional and shall not be impaired or affected without the consent of such holder.

 

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13. Termination . This Agreement may be terminated by the Issuer, with the consent of each holder of the Junior Notes, upon thirty (30) calendar days’ prior written notice to the Fiscal Agent.

14. Governing Law . THIS AGREEMENT AND THE JUNIOR NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THE JUNIOR NOTES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE PARTIES TO THIS AGREEMENT AND HOLDERS OF JUNIOR NOTES SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

15. Notices . All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing, including by email, shall specify this Agreement by name and date and shall identify the Junior Notes, and if sent to the Fiscal Agent shall be delivered or transmitted by facsimile to it at The Bank of New York Mellon, 101 Barclay Street, New York, New York 10286, Attention: Dealing & Trading Unit, fax: 212-815-2830, and if sent to the Issuer, with respect to notices of payments and written confirmations of wire transfers, shall be delivered or transmitted by facsimile to it at The Segregated Account of Ambac Assurance Corporation, c/o Ambac Assurance Corporation, One State Street Plaza, New York, New York 10004, Attention: First Vice President—Cash Management, fax: 212-208-3507, and if sent to the Issuer, with respect to all other communications, shall be delivered or transmitted by facsimile to it at The Segregated Account of Ambac Assurance Corporation, c/o Ambac Assurance Corporation, One State Street Plaza, New York, New York 10004, Attention: Chief Financial Officer, fax: 212-208-3416. The foregoing addresses for notices or communications may be changed by written notice given by the addressee to each party hereto, and the addressee’s address shall be deemed changed for all purposes from and after the giving of such notice.

Notices shall be deemed received by the Fiscal Agent only upon actual receipt by the Fiscal Agent. If the Fiscal Agent shall receive any notice or demand addressed to the Issuer by the holder of a Junior Note, the Fiscal Agent shall promptly forward such notice or demand to the Issuer.

16. Severability . In case any provision in this Agreement or in the Junior Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

17. Headings . The section headings herein are for convenience of reference only and shall not affect the construction hereof.

 

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18. Counterparts . This Agreement may be executed in one or more counterparts, and by each party separately on a separate counterpart, and each such counterpart when executed and delivered shall be deemed to be an original. Such counterparts shall together constitute one and the same instrument.

19. Interpretation . The provisions of this Agreement shall be construed to the greatest extent possible as consistent with the provisions of the Junior Notes, and, to the extent the terms of this Agreement conflict with the terms of the Junior Notes, the terms of the Junior Notes shall govern.

20. Waiver of Jury Trial . EACH OF THE FISCAL AGENT AND THE ISSUER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE JUNIOR NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

21. USA Patriot Act . The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from time to time, the “ USA Patriot Act ”), the Fiscal Agent, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Fiscal Agent with such information as the Fiscal Agent may request in order for the Fiscal Agent to satisfy the requirements of the USA Patriot Act.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Junior Note Fiscal Agency Agreement as of the date first above written.

 

THE SEGREGATED ACCOUNT OF AMBAC
ASSURANCE CORPORATION,

By:

  Ambac Assurance Corporation, as Manager

By:

 

/s/ DAVID TRICK

Name:

  David Trick

Title:

  Chief Financial Officer

 

THE BANK OF NEW YORK MELLON,

        as Fiscal Agent

By:

 

/s/ STACEY POINDEXTER

Name:

  Stacey B. Poindexter

Title:

  Vice President

 

S-1


EXHIBIT A

FORM OF CERTIFICATED NOTE

THIS 5.1% JUNIOR SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ JUNIOR NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ACCORDANCE WITH THAT CERTAIN JUNIOR NOTE FISCAL AGENCY AGREEMENT BY AND BETWEEN THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION AND THE BANK OF NEW YORK MELLON (TOGETHER WITH ITS PERMITTED SUCCESSORS AND ASSIGNS, THE “ FISCAL AGENT ”), DATED AS OF APRIL 30, 2013 (AS IT MAY BE DULY AMENDED FROM TIME TO TIME, THE “ JUNIOR NOTE FISCAL AGENCY AGREEMENT ”), COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICE OF THE FISCAL AGENT. EACH PURCHASER OF THIS JUNIOR NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS JUNIOR NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ RULE 144A ”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”).

[ INCLUDE IF JUNIOR NOTE IS A RESTRICTED CERTIFICATED NOTE OR JUNIOR NOTE ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(g) OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED ) — THE JUNIOR NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.]

 

A-1


ANY PERSON ACQUIRING THIS JUNIOR NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AND THE FISCAL AGENT AS SET FORTH IN PARAGRAPH 8 HEREOF.

ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS JUNIOR NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).

 

A-2


JUNIOR SURPLUS NOTE ISSUED BY

THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION

JSNA-             $[        ]

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”), for value received, hereby promises to pay, subject to the Payment Restrictions (as defined in paragraph 1 of the reverse side of this Junior Note), to                     , or registered assigns, the principal sum of                     United States dollars ($        ) on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner from                     ,         or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date the Junior Notes are scheduled to mature, commencing June 7, 2013 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “ scheduled maturity date ” or other date for the payment of principal of the Junior Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 13 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order). As specified on the reverse hereof, all payments of principal of or interest on this Junior Note may be made only with the prior approval of the Commissioner. The interest so payable, and punctually paid or duly provided for, on any Scheduled Interest Payment Date shall be paid, in accordance with the terms of the Junior Note Fiscal Agency Agreement hereinafter referred to, to the person (the “ registered holder ”) in whose name this Junior Note (or one or more predecessor Junior Notes) is registered at the close of business on May 20 (whether or not a Business Day, as defined herein), as the case may be (each, a “ Regular Record Date ”), next preceding such Scheduled Interest Payment Date. Interest on the Junior Notes shall be calculated on the basis of a 360-day year of twelve months of 30 days each. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Junior Note (or one or more predecessor Junior Notes) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of the Junior Notes not less than 15 days prior to such special record date.

Principal of this Junior Note shall be payable against surrender hereof at the Corporate Trust Office of the Fiscal Agent hereinafter referred to and at the offices of such other Paying Agents as the Issuer shall have appointed pursuant to the Junior Note Fiscal Agency Agreement. Payments of principal of the Junior Notes shall be made only against surrender of the Junior Notes; provided that in the case of payment of only a portion of principal, the Issuer shall execute a new registered Junior Note or Junior Notes in aggregate principal amount equal to and in exchange for the remaining portion of the principal of the Junior Note so surrendered. Payments of interest on this Junior Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives

 

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notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address appearing on the aforementioned register. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Junior Notes of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to such Junior Notes payable to such holder. The Issuer agrees that until this Junior Note has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the full principal of and interest remaining unpaid on this Junior Note have been made available for payment and either paid or returned to the Issuer as provided herein, it will at all times maintain offices or agencies in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Junior Notes as herein provided.

Reference is hereby made to the further provisions of this Junior Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

This Junior Note may be executed by the Issuer by manual, facsimile or portable document format signatures, and such signatures may be executed on separate counterparts.

Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, this Junior Note shall not be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

Dated:

 

THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION,

By: Ambac Assurance Corporation, as Manager

By:

 

 

Name:

 

Title:

 

This is one of the Junior Notes referred to in the within-mentioned Junior Note Fiscal Agency Agreement.

 

THE BANK OF NEW YORK MELLON

        as Fiscal Agent

By:

 

 

  Authorized Officer

 

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FORM OF REVERSE

1. General . This Note is one of a duly authorized issue of 5.1% Junior Surplus Notes scheduled to mature on June 7, 2020 of the Issuer (herein called the “ Junior Notes ”), unlimited in aggregate principal amount. The Issuer and The Bank of New York Mellon have entered into a Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (such instrument, as it may be duly amended from time to time, is herein called the “ Junior Note Fiscal Agency Agreement ”), which provides for the mechanism for issuing the Junior Notes and, inter alia , sets forth certain duties of the Fiscal Agent in connection therewith. As used herein, the term “ Fiscal Agent ” includes any successor fiscal agent under the Junior Note Fiscal Agency Agreement. Copies of the Junior Note Fiscal Agency Agreement are on file and available for inspection at the Corporate Trust Office of the Fiscal Agent in the Borough of Manhattan, The City of New York. Holders of Junior Notes are referred to the Junior Note Fiscal Agency Agreement for a statement of the terms thereof, including those relating to transfer, payment, exchanges and certain other matters. The Fiscal Agent or any Paying Agent shall also act as Transfer Agent and securities registrar.

Capitalized definitional terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Junior Note Fiscal Agency Agreement. The terms of the Junior Notes include those stated in the Junior Note Fiscal Agency Agreement. The Junior Notes are subject to all such terms, and holders of the Junior Notes are referred to the Junior Note Fiscal Agency Agreement for a statement of such terms. Holders of Junior Notes may enforce the Junior Notes only in accordance with the Junior Note Fiscal Agency Agreement.

The Junior Notes are direct and unsecured obligations of the Issuer and, subject to the payment restrictions contained in paragraphs 4 and 8 hereof (the “ Payment Restrictions ”), are scheduled to mature on June 7, 2020.

Any reference herein to the term “ scheduled maturity date ” or other date for the payment of principal of the Junior Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 13 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order).

2. Form of Junior Notes . The Junior Notes are issuable only in fully registered form without coupons.

3. Registration, Transfer and Exchange . The Issuer shall maintain, in the Borough of Manhattan, The City of New York, a Transfer Agent where Junior Notes may be registered or surrendered for registration of transfer or exchange. The Issuer has initially appointed the Fiscal Agent at its Corporate Trust Office as its Transfer Agent. The Issuer shall cause the Transfer Agent to act as a securities registrar and shall cause to be kept at the office of the Transfer Agent a register in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Junior Notes and registration of transfers and exchanges of Junior Notes. The Issuer reserves the right to vary or terminate the appointment of the Transfer Agent or to appoint additional or other Transfer Agents or to approve any change in the office through which any Transfer Agent acts; provided that there shall at all times be a Transfer Agent in the

 

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Borough of Manhattan, The City of New York. The Issuer shall cause written notice of any resignation, termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent shall act to be provided to holders of Junior Notes.

Subject to the restrictions set forth herein and in the Junior Note Fiscal Agency Agreement, the transfer of a Junior Note is registrable on the aforementioned register upon surrender of such Junior Note at any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the registered holder thereof or such holder’s attorney duly authorized in writing. Upon such surrender of this Junior Note for registration of transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Junior Notes, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.

Subject to the restrictions set forth herein and in the Junior Note Fiscal Agency Agreement, at the option of the registered holder upon request confirmed in writing, Junior Notes may be exchanged for Junior Notes of any authorized denominations and aggregate principal amount upon surrender of the Junior Notes to be exchanged at the office of any Transfer Agent. Whenever any Junior Notes are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Junior Notes which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange shall be effected upon the Issuer being reasonably satisfied with the documents of title and identity of the person making the request and subject to the restrictions set forth in this Junior Note and/or the Junior Note Fiscal Agency Agreement and such reasonable regulations as the Issuer may from time to time agree with the Fiscal Agent.

Junior Notes may be redeemed by the Issuer, in whole or in part, but only to the extent permitted by the Payment Restrictions, including the prior approval of the Commissioner, and in accordance with paragraph 13 hereof. In the event of a partial redemption, the Issuer shall not be required (i) to register the transfer of or exchange any Junior Note during a period beginning at the opening of business 15 days before the date notice is given identifying the Junior Notes to be redeemed, or (ii) to register the transfer or exchange of any Junior Note, or portion thereof, called for redemption.

All Junior Notes issued upon any registration of transfer or exchange of Junior Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits, as the Junior Notes surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Fiscal Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith, other than an exchange in connection with the partial redemption of a Junior Note not involving any registration of a transfer.

Prior to due presentment of this Junior Note for registration of transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name this Junior Note is registered as the absolute owner hereof for all purposes, whether or not this Junior Note be overdue, and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected by notice to the contrary.

 

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4. Restrictions on Payment . (a) Notwithstanding anything to the contrary set forth herein or in the Junior Note Fiscal Agency Agreement, any payment of principal of, interest on or any monies owing with respect to this Junior Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Junior Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day (as defined below) on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated on the face hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder. If the Commissioner approves a payment of principal of or interest on the Junior Notes in an amount that is less than the full amount of principal of and interest on the Junior Notes then scheduled to be paid in respect of the Junior Notes, payment of such partial amount shall be made pro rata among Junior Note holders.

(b) Any payment of principal of or interest on any Junior Note as to which the approval of the Commissioner has been obtained and which is not punctually paid or duly provided for on the scheduled payment date or scheduled maturity date thereof, as set forth herein (such payment being referred to as an “Unpaid Amount”), subject to the provisions of paragraph 12(b), will forthwith cease to be payable to the registered holder of this Junior Note on the relevant record date designated herein, and such Unpaid Amount, together with interest thereon accrued at the rate of interest per annum applicable to principal hereunder, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, will instead be payable to the registered holder of this Junior Note on a subsequent special record date. The Issuer shall fix the special record date and payment date for the payment of any Unpaid Amount. At least 15 days before the special record date, the Issuer shall mail to each holder of the Junior Notes and the Fiscal Agent a notice that states the special record date, payment date and amount of interest or principal to be paid. On the payment date set forth in such notice, the Paying Agent shall pay the amount of interest or principal to be so paid to each holder of the Junior Notes in the manner set forth in Section 4(a) of the Junior Note Fiscal Agency Agreement.

5. Payment . (a) For so long as the Fiscal Agent is acting as a Paying Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, or such other Paying Agent if the Fiscal Agent is no longer acting as a Paying Agent, in immediately available funds on or prior to 11:00 a.m., New York time, on each date on which a payment of principal of or any interest on this Junior Note is payable, as set forth herein, such amounts, in U.S. dollars, as are necessary (with any amounts then held by the Fiscal Agent and

 

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available for the purpose) to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on this Junior Note as set forth herein and in the Junior Note Fiscal Agency Agreement. Payments of principal of or any interest on the Junior Notes will be made (i) by wire transfer of immediately available funds to an account maintained by the payee with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of the account to which payment is to be made or (ii) if no such notice is given, by mailing a check to the payee at the address reflected in the securities register maintained pursuant to Section 6 of the Junior Note Fiscal Agency Agreement. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Junior Notes shall remain in effect with respect to any future payments with respect to such Junior Notes payable to such holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 of the Junior Note Fiscal Agency Agreement for the payment, subject to the Payment Restrictions, from funds so paid by the Issuer of the principal of and any interest on this Junior Note. Any monies held in respect of this Junior Note remaining unclaimed at the end of two years after such principal and such interest shall have become payable in accordance with the Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer may have to pay the principal of and interest on this Junior Note, subject to the Payment Restrictions. To the extent that the Fiscal Agent is not acting as Paying Agent, references to the Fiscal Agent in this Section 5(a) shall include the Paying Agent in such capacity.

(b) In any case where the scheduled payment date or scheduled maturity date of any Junior Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

6. Duties and Taxes . The Issuer shall pay all stamp and other duties, if any, which may be imposed by the United States of America or any governmental entity or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Junior Note Fiscal Agency Agreement or the initial issuance of this Junior Note. All payments will be made by the Issuer without withholding or deduction for or on account for any present or future tax, duty, assessment or other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein, unless such withholding or deduction is required by law. The Issuer shall not be required to make any additional payment with respect to any withholding or deduction so required.

 

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7. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any entity whose underlying assets are considered to include “ plan assets ” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “ plan assets ” of a Plan or a plan subject to a Similar Law, may acquire this Junior Note, unless the acquisition and holding of the Junior Note is exempt under one or more of Prohibited Transaction Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Junior Note shall constitute a representation by such person to the Issuer and the Fiscal Agent that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring the Junior Note on behalf of or with “ plan assets ” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of the Junior Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of the Junior Notes set forth in this paragraph 7 are in addition to those otherwise set forth in Section 6 of the Junior Note Fiscal Agency Agreement and under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

8. Subordination . (a) The Issuer agrees, and each Junior Note holder by accepting a Junior Note agrees, that the indebtedness evidenced by the Junior Notes is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

(a) No payment of interest on or principal of this Junior Note shall be made until all existing and future Indebtedness, Policy Claims and Prior Claims have been paid in full, including upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property. If the Commissioner approves a payment of principal of or interest on the Junior Notes in an amount that is less than the full amount of principal of and interest on the Junior Notes then scheduled to be paid in respect of the Junior Notes, payment of such partial amount shall be made pro rata among Junior Note holders as their interests may appear.

(b) If a distribution is made to Junior Note holders that, because of this paragraph, should not have been made to them, the Junior Note holders who receive the distribution shall pay it over to the Issuer.

(c) The Issuer shall promptly notify the Fiscal Agent and the Paying Agent of any facts known to the Issuer that would cause a payment of principal of or interest on the Junior Notes to violate paragraph 8(b).

 

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(d) This paragraph defines the relative rights of Junior Note holders, on the one hand, and holders of any other claims, on the other hand. Nothing in this Junior Note or the Junior Note Fiscal Agency Agreement shall (i) impair, as between the Issuer and Junior Note holders, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on the Junior Notes in accordance with their terms; (ii) affect the relative rights of Junior Note holders and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or (iii) prevent the Fiscal Agent or any Junior Note holder from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to Junior Note holders.

(e) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by the Junior Notes shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Junior Note Fiscal Agency Agreement.

(f) Each holder of Junior Notes, by acceptance thereof, authorizes and directs the Fiscal Agent on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.

As used herein, “ Indebtedness ” of the Issuer shall mean (i) all existing or future surplus or contribution notes or similar obligations of the Issuer; (ii) all existing or future indebtedness of the Issuer for borrowed money; (iii) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; (iv) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; (v) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, the Junior Notes would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as it may be hereafter amended from time to time, “ Section 645.68 ”) and (vi) any surplus or contribution notes or similar obligations of Ambac Assurance Corporation, unless the terms thereof expressly state that such notes are pari passu with or subordinated to this Junior Note. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, the Junior Notes shall not constitute Indebtedness. Any other junior surplus notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, the Junior Notes.

As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the Issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

 

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As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to the Junior Notes. Under Section 645.68 as currently in effect, such other claims include: (i) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the insurer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; (ii) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii) other than the federal government; (iii) claims of the federal government not included under clause (ii), interest at the legal rate compounded annually on all claims in the class under this clause (iii), and on all claims of the federal government in the class under clause (ii), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; (iv) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; (v) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided, however, that if there are no claims of the federal government, the claims in clause (v) have priority over all claims under clauses (ii) to (x); (vi) claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii); (vii) all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture, but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; (viii) claims based solely on judgments; (ix) interest at the legal rate compounded annually on all claims in the classes under clauses (i) to (viii), except for claims of the federal government in the classes under clauses (ii) and (iii), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and (x) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (ix).

9. Delivery of Certain Information . For so long as any of the Junior Notes remain Outstanding or any amount remains unpaid on any of the Junior Notes, the Issuer shall, in accordance with Rule 144A, comply with the terms of the agreements set forth in Section 8 of the Junior Note Fiscal Agency Agreement.

10. Mutilation, Destruction, Loss, etc . In case this Junior Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and upon the Issuer’s request the Fiscal Agent shall authenticate and deliver a new Junior Note, having a number not contemporaneously outstanding, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest

 

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has been paid on this Junior Note, in exchange and substitution for this Junior Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Junior Note. In the case where this Junior Note is destroyed, lost or stolen, the applicant for a substituted Junior Note shall furnish to the Issuer and the Fiscal Agent such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of this Junior Note, the applicant shall also furnish to the Issuer and the Fiscal Agent reasonable satisfactory evidence of the destruction, loss or theft of this Junior Note and of the ownership thereof; provided, however, that if the registered holder hereof is, in the reasonable judgment of the Issuer and the Fiscal Agent, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new Junior Note in lieu of and substitution for this Junior Note. The Fiscal Agent shall authenticate any such substituted Junior Note and deliver the same only upon written request or authorization of the Issuer. Upon the issuance of any substituted Junior Note, the Issuer and the Fiscal Agent may require the payment by the registered holder thereof of a sum sufficient to cover fees and expenses connected therewith. In case this Junior Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute Junior Note, pay or authorize the payment of the same (without surrender thereof except if this Junior Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 10 as hereinabove set forth.

11. Amendments . Section 11 of the Junior Note Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and with the consent of the holders of not less than a majority in aggregate principal amount of the Junior Notes then Outstanding or by written consent of such percentage in aggregate principal amount of the Junior Notes then Outstanding, the Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, modify, amend or supplement the Junior Note Fiscal Agency Agreement or the terms of the Junior Notes or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver or other action shall be conclusive and binding on the holder of this Junior Note and on all future holders of this Junior Note and of any Junior Note issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Junior Note. The Junior Note Fiscal Agency Agreement and the terms of the Junior Notes may, with the prior approval of the Commissioner, be modified or amended by the Issuer and the Fiscal Agent, without the consent of any holders of Junior Notes, for the purpose of (a) adding to the covenants of the Issuer for the benefit of the holders of Junior Notes, or (b) surrendering any right or power conferred upon the Issuer, or (c) securing the Junior Notes, or (d) evidencing the succession of another corporation to the Issuer and the assumption by such successor of the covenants and obligations of the Issuer herein and in the Junior Note Fiscal Agency Agreement as permitted by the Junior Notes and the Junior Note Fiscal Agency Agreement, or (e) modifying the restrictions on, and procedures for, resale and other transfers of the Junior Notes to the extent required by any change in applicable law or regulation (or the interpretation thereof) or in practices relating to the resale or transfer of restricted securities generally, or (f) accommodating the issuance, if any, of Junior Notes in book-entry or certificated form and matters related thereto which do not adversely affect the interest of any Junior Note holder in any material respect, or (g) curing any ambiguity or correcting or supplementing any defective provision contained herein or in the Junior Note Fiscal

 

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Agency Agreement in a manner which does not adversely affect the interest of any Junior Note holder in any material respect, or (h) effecting any amendment which the Issuer and the Fiscal Agent may determine is necessary or desirable and which shall not adversely affect the interest of any Junior Note holder, to all of which each holder of any Junior Note, by acceptance thereof, consents.

12. Remedies . Holders of Junior Notes may enforce the Junior Note Fiscal Agency Agreement or the Junior Notes only in the manner set forth below.

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), the Junior Notes will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the Fiscal Agent or any holder of the Junior Notes, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Junior Note or the Junior Note Fiscal Agency Agreement, in no event shall the Fiscal Agent or any holder of the Junior Notes be entitled to declare the Junior Notes to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves in whole or in part a payment of any interest on or principal of, or any redemption payment with respect to, any Junior Notes and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of the Fiscal Agent or any holder of Junior Notes. In the event that the Issuer fails to perform any of its other obligations hereunder or under the Junior Note Fiscal Agency Agreement, each holder of the Junior Notes may pursue any available remedy to enforce the performance of any provision of such Junior Notes or the Junior Note Fiscal Agency Agreement; provided, however, that such remedy shall in no event include the right to declare the Junior Notes immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law. A delay or omission by any Junior Note holder in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder or under the Junior Note Fiscal Agency Agreement and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Notwithstanding any other provision of this Junior Note or the Junior Note Fiscal Agency Agreement, the right of any holder of Junior Notes to receive payment of the principal of and interest on such holder’s Junior Notes on or after the respective scheduled payment or scheduled maturity dates expressed in such Junior Notes, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to such payment on such dates having received the approval of the Commissioner pursuant to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

 

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13. Optional Redemption . (a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, the Junior Notes are subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of the Junior Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the aggregate principal amount of the Junior Notes to be redeemed plus any accrued but unpaid interest (including interest on interest). The Junior Notes may not be redeemed at the option of any Junior Note holder. Notice of any redemption pursuant to this paragraph 13(a) will be given to holders of the Junior Notes as set forth below. Interest installments due on this Junior Note on or prior to a redemption date will be payable to the holder of this Junior Note of record at the close of business on the relevant record date, all as provided in the Junior Note Fiscal Agency Agreement.

(b) In the case of any partial redemption of Junior Notes, each Outstanding Junior Note shall be redeemed pro rata; provided that if at the time of redemption such Junior Notes are registered as a Global Note, the U.S. Depositary for such Global Note shall determine, in accordance with its procedures, the principal amount of such Junior Notes to be redeemed held by each holder of a beneficial interest in such Global Note.

(c) Notices to redeem Junior Notes shall be given to holders of Junior Notes in writing mailed, first-class postage prepaid, to each holder of registered Junior Notes, or portions thereof, so to be redeemed, at such holder’s address as it appears in the securities register. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holders of Junior Notes in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer or by the Fiscal Agent on behalf of and at the instruction of the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Neither the failure to give notice nor any defect in any notice given to any particular holder of a Junior Note shall affect the sufficiency of any notice with respect to other Junior Notes. Notices to redeem Junior Notes shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of the Junior Notes to be redeemed (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue if the Junior Notes are so redeemed. In addition, in the case of a partial redemption, such notice shall specify the Junior Notes called for redemption and the aggregate principal amount of the Junior Notes to remain Outstanding after the redemption.

(d) If notice of redemption has been given in the manner set forth in paragraph 13(c) hereof, the Junior Notes so to be redeemed shall be payable in full on the date specified in such notice and upon presentation and surrender of the Junior Notes at the place or places specified in such notice, the Junior Notes shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, if monies for the redemption of Junior Notes called for redemption shall have been made available at the Corporate Trust Office of the Fiscal Agent for redemption on the

 

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redemption date, the Junior Notes called for redemption shall cease to bear interest, and the only right of the holders with respect to such Junior Notes or portion thereof being redeemed shall be to receive payment of the Redemption Price. If monies for the redemption of the Junior Notes are not made available for payment until after the redemption date, the Junior Notes called for redemption shall not cease to bear interest until such monies have been so made available.

(e) Any Junior Note which is to be redeemed only in part shall be surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer and the Fiscal Agent duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver to the holder of such Junior Note without service charge, a new registered Junior Note or Junior Notes, of any authorized denomination as requested by such holder, and as permitted by Section 1(d) of the Junior Note Fiscal Agency Agreement, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Junior Note so surrendered.

14. Obligations Not Impaired . No reference herein to the Junior Note Fiscal Agency Agreement and no provision of this Junior Note or of the Junior Note Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, subject to the Payment Restrictions, to pay the principal of and interest on this Junior Note at the times, place and rate, and in the coin or currency, herein prescribed.

15. GOVERNING LAW . THIS JUNIOR NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS JUNIOR NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE PARTIES TO THE JUNIOR NOTE FISCAL AGENCY AGREEMENT AND HOLDERS OF THIS JUNIOR NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

15. Covenants . The Issuer shall not redeem any junior surplus notes, contribution notes or similar obligations or indebtedness issued by the Issuer or Ambac Assurance Corporation (or any successor or assign thereof in respect of such notes, obligations or indebtedness) that rank pari passu with the Junior Notes unless it also redeems a pro rata amount of the Junior Notes. Further, the Issuer shall not redeem any Junior Notes unless it also redeems a pro rata amount of any other junior surplus notes issued by the Issuer (or any successor or assign thereof in respect of such junior notes) that rank pari passu with the Junior Notes outstanding at the time of redemption. In addition, neither the Issuer nor the General Account shall make any payments of interest or principal on any junior surplus or contribution

 

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notes or similar obligations or indebtedness that rank junior to the Junior Notes until all accrued interest and the principal amount of the Junior Notes has been paid in full. No junior surplus notes issued by the Segregated Account or the General Account that rank pari passu with or junior to the Junior Notes shall be on terms that are materially more favorable to the holders of such notes than the Junior Notes.

16. Notice . The initial holder of this Junior Note hereby agrees, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to provide Ambac Assurance Corporation, as Management Services Provider for the Issuer, with a copy by email to the Rehabilitator, with prior written notice of any sale, disposition or other transfer of this Junior Note by such initial holder. Such written notice shall be provided prior to and as a condition to the consummation of the sale, disposition or other transfer by the initial holder, and shall contain the identity and address of the transferee and the date upon which the sale, disposition, or other transfer is effective.

 

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EXHIBIT B

FORM OF GLOBAL NOTE

THIS 5.1% JUNIOR SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ JUNIOR NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ACCORDANCE WITH THAT CERTAIN JUNIOR NOTE FISCAL AGENCY AGREEMENT BY AND BETWEEN THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION AND THE BANK OF NEW YORK MELLON (TOGETHER WITH ITS PERMITTED SUCCESSORS AND ASSIGNS, THE “ FISCAL AGENT ”), DATED AS OF APRIL 30, 2013 (AS IT MAY BE DULY AMENDED FROM TIME TO TIME, THE “ JUNIOR NOTE FISCAL AGENCY AGREEMENT ”), COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICE OF THE FISCAL AGENT. EACH PURCHASER OF THIS JUNIOR NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS JUNIOR NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ RULE 144A ”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”).

UNLESS THIS JUNIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“ DTC ”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY JUNIOR NOTE ISSUED IN EXCHANGE FOR THIS JUNIOR NOTE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

THIS JUNIOR NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A JUNIOR NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 6(C) OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT. BENEFICIAL INTERESTS IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 6(C) OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT.

 

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[INCLUDE IF JUNIOR NOTE IS A TEMPORARY REGULATION S GLOBAL NOTE — THIS JUNIOR NOTE IS A TEMPORARY REGULATION S (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”) GLOBAL NOTE WITHIN THE MEANING OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE 40-DAY RESTRICTED PERIOD REFERRED TO IN SECTION l(b)(iii) OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT, AND NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN THE PERMANENT REGULATION S GLOBAL NOTE EXCEPT AFTER THE DATE OF TERMINATION OF THE RESTRICTED PERIOD.]

[ INCLUDE IF JUNIOR NOTE IS A RESTRICTED GLOBAL NOTE OR JUNIOR NOTE ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(g) OF THE JUNIOR NOTE FISCAL AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED ) – THE JUNIOR NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.]

IF THIS JUNIOR NOTE WAS SOLD IN AN “ OFFSHORE TRANSACTION ” IN ACCORDANCE WITH RULE 904 OF REGULATION S, BY ITS ACCEPTANCE OF THE JUNIOR NOTES, EACH HOLDER OF THE JUNIOR NOTES SHALL BE DEEMED TO HAVE REPRESENTED TO THE ISSUER THAT SUCH HOLDER IS NOT A “ U.S. PERSON ” AND IS NOT PURCHASING THE JUNIOR NOTES IN THE UNITED STATES OR ANY OF ITS TERRITORIES OR POSSESSIONS; OR IS A QUALIFIED INSTITUTIONAL BUYER.

 

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ANY PERSON ACQUIRING THIS JUNIOR NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AND THE FISCAL AGENT AS SET FORTH IN PARAGRAPH 7 HEREOF.

ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS JUNIOR NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).

 

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JUNIOR SURPLUS NOTE ISSUED BY

THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION

JSN-            $[        ]

CUSIP NO.:                     ISIN NO.:             COMMON CODE:

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”), for value received, hereby promises to pay, subject to the Payment Restrictions (as defined in paragraph 1 of the reverse side of this Junior Note), to Cede & Co., or registered assigns, the principal sum of         United States dollars ($        ), or such other amount (not to exceed         dollars ($        ) when taken together with all of the Issuer’s Junior Notes issued and outstanding in definitive certificated form or in the form of another Global Note) as may from time to time represent the principal amount of the Issuer’s Junior Notes in respect of which beneficial interests are held through the U.S. Depositary in the form of a [Restricted] [Temporary] [Permanent] [Regulation S] Global Note, on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner from             ,              or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date the Junior Notes are scheduled to mature, commencing June 7, 2013 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “ scheduled maturity date ” or other date for the payment of principal of the Junior Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 13 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order). As specified on the reverse hereof, all payments of principal of or interest on this Junior Note may be made only with the prior approval of the Commissioner. The interest so payable, and punctually paid or duly provided for, on any Scheduled Interest Payment Date shall be paid, in accordance with the terms of the Junior Note Fiscal Agency Agreement hereinafter referred to, to the person (the “ registered holder ”) in whose name this Junior Note (or one or more predecessor Junior Notes) is registered at the close of business on May 20 (whether or not a Business Day, as defined herein), as the case may be (each, a “ Regular Record Date ”), next preceding such Scheduled Interest Payment Date. Interest on the Junior Notes shall be calculated on the basis of a 360-day year of twelve months of 30 days each. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Junior Note (or one or more predecessor Junior Notes) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of the Junior Notes not less than 15 days prior to such special record date.

Principal of this Junior Note shall be payable against surrender hereof at the Corporate Trust Office of the Fiscal Agent hereinafter referred to and at the offices of such other Paying Agents as the Issuer shall have appointed pursuant to the Junior Note Fiscal Agency Agreement.

 

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Payments of principal of the Junior Notes shall be made only against surrender of the Junior Notes; provided that in the case of payment of only a portion of principal, the Issuer shall execute a new registered Junior Note or Junior Notes in aggregate principal amount equal to and in exchange for the remaining portion of the principal of the Junior Note so surrendered. Payments of interest on this Junior Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address appearing on the aforementioned register. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Junior Notes of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to such Junior Notes payable to such holder. The Issuer agrees that until this Junior Note has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the full principal of and interest remaining unpaid on this Junior Note have been made available for payment and either paid or returned to the Issuer as provided herein, it will at all times maintain offices or agencies in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Junior Notes as herein provided.

Reference is hereby made to the further provisions of this Junior Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

This Junior Note may be executed by the Issuer by manual, facsimile or portable document format signatures, and such signatures may be executed on separate counterparts.

Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, this Junior Note shall not be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

Dated:

 

THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION,

By: Ambac Assurance Corporation, as Manager
By:  

 

Name:  
Title:  

This is one of the Junior Notes referred to in the within-mentioned Junior Note Fiscal Agency Agreement.

 

THE BANK OF NEW YORK MELLON

         as Fiscal Agent

By:  

 

  Authorized Officer:

 

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FORM OF REVERSE

1. General . This Junior Note is one of a duly authorized issue of 5.1% Junior Surplus Notes scheduled to mature on June 7, 2020 of the Issuer (herein called the “ Junior Notes ”), unlimited in aggregate principal amount. The Issuer and The Bank of New York Mellon have entered into a Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (such instrument, as it may be duly amended from time to time, is herein called the “ Junior Note Fiscal Agency Agreement ”), which provides for the mechanism for issuing the Junior Notes and, inter alia , sets forth certain duties of the Fiscal Agent in connection therewith. As used herein, the term “ Fiscal Agent ” includes any successor fiscal agent under the Junior Note Fiscal Agency Agreement. Copies of the Junior Note Fiscal Agency Agreement are on file and available for inspection at the Corporate Trust Office of the Fiscal Agent in the Borough of Manhattan, The City of New York. Holders of Junior Notes are referred to the Junior Note Fiscal Agency Agreement for a statement of the terms thereof, including those relating to transfer, payment, exchanges and certain other matters. The Fiscal Agent or any Paying Agent shall also act as Transfer Agent and securities registrar.

Capitalized definitional terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Junior Note Fiscal Agency Agreement. The terms of the Junior Notes include those stated in the Junior Note Fiscal Agency Agreement. The Junior Notes are subject to all such terms, and holders of the Junior Notes are referred to the Junior Note Fiscal Agency Agreement for a statement of such terms. Holders of Junior Notes may enforce the Junior Notes only in accordance with the Junior Note Fiscal Agency Agreement.

The Junior Notes are direct and unsecured obligations of the Issuer and, subject to the payment restrictions contained in paragraphs 4 and 8 hereof (the “ Payment Restrictions ”), are scheduled to mature on June 7, 2020.

Any reference herein to the term “ scheduled maturity date ” or other date for the payment of principal of the Junior Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 13 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order).

2. Form of Junior Notes . The Junior Notes are issuable only in fully registered form without coupons.

3. Registration, Transfer and Exchange . The Issuer shall maintain, in the Borough of Manhattan, The City of New York, a Transfer Agent where Junior Notes may be registered or surrendered for registration of transfer or exchange. The Issuer has initially appointed the Fiscal Agent at its Corporate Trust Office as its Transfer Agent. The Issuer shall cause the Transfer Agent to act as a securities registrar and shall cause to be kept at the office of the Transfer Agent a register in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Junior Notes and registration of transfers and exchanges of Junior Notes. The Issuer reserves the right to vary or terminate the appointment of the Transfer Agent or to appoint additional or other Transfer Agents or to approve any change in the office through which any Transfer Agent acts; provided that there shall at all times be a Transfer Agent in the

 

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Borough of Manhattan, The City of New York. The Issuer shall cause written notice of any resignation, termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent shall act to be provided to holders of Junior Notes.

Subject to the restrictions set forth herein and in the Junior Note Fiscal Agency Agreement, the transfer of a Junior Note is registrable on the aforementioned register upon surrender of such Junior Note at any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the registered holder thereof or such holder’s attorney duly authorized in writing. Upon such surrender of this Junior Note for registration of transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Junior Notes, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.

Subject to the restrictions set forth herein and in the Junior Note Fiscal Agency Agreement, at the option of the registered holder upon request confirmed in writing, Junior Notes may be exchanged for Junior Notes of any authorized denominations and aggregate principal amount upon surrender of the Junior Notes to be exchanged at the office of any Transfer Agent. Whenever any Junior Notes are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Junior Notes which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange shall be effected upon the Issuer being reasonably satisfied with the documents of title and identity of the person making the request and subject to the restrictions set forth in this Junior Note and/or the Junior Note Fiscal Agency Agreement and such reasonable regulations as the Issuer may from time to time agree with the Fiscal Agent.

Junior Notes may be redeemed by the Issuer, in whole or in part, but only to the extent permitted by the Payment Restrictions, including the prior approval of the Commissioner, and in accordance with paragraph 13 hereof. In the event of a partial redemption, the Issuer shall not be required (i) to register the transfer of or exchange any Junior Note during a period beginning at the opening of business 15 days before the date notice is given identifying the Junior Notes to be redeemed, or (ii) to register the transfer or exchange of any Junior Note, or portion thereof, called for redemption.

All Junior Notes issued upon any registration of transfer or exchange of Junior Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits, as the Junior Notes surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Fiscal Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith, other than an exchange in connection with the partial redemption of a Junior Note not involving any registration of a transfer.

Prior to due presentment of this Junior Note for registration of transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name this Junior Note is registered as the absolute owner hereof for all purposes, whether or not this Junior Note be overdue, and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected by notice to the contrary.

 

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4. Restrictions on Payment . (a) Notwithstanding anything to the contrary set forth herein or in the Junior Note Fiscal Agency Agreement, any payment of principal of, interest on or any monies owing with respect to this Junior Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Junior Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day (as defined below) on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated on the face hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder. If the Commissioner approves a payment of principal of or interest on the Junior Notes in an amount that is less than the full amount of principal of and interest on the Junior Notes then scheduled to be paid in respect of the Junior Notes, payment of such partial amount shall be made pro rata among Junior Note holders.

(b) Any payment of principal of or interest on any Junior Note as to which the approval of the Commissioner has been obtained and which is not punctually paid or duly provided for on the scheduled payment date or scheduled maturity date thereof, as set forth herein (such payment being referred to as an “ Unpaid Amount ”), subject to the provisions of paragraph 12(b), will forthwith cease to be payable to the registered holder of this Junior Note on the relevant record date designated herein, and such Unpaid Amount, together with interest thereon accrued at the rate of interest per annum applicable to principal hereunder, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, will instead be payable to the registered holder of this Junior Note on a subsequent special record date. The Issuer shall fix the special record date and payment date for the payment of any Unpaid Amount. At least 15 days before the special record date, the Issuer shall mail to each holder of the Junior Notes and the Fiscal Agent a notice that states the special record date, payment date and amount of interest or principal to be paid. On the payment date set forth in such notice, the Paying Agent shall pay the amount of interest or principal to be so paid to each holder of the Junior Notes in the manner set forth in Section 4(a) of the Junior Note Fiscal Agency Agreement.

5. Payment . (a) For so long as the Fiscal Agent is acting as a Paying Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, or such other Paying Agent if the Fiscal Agent is no longer acting as a Paying Agent, in immediately available funds on or prior to 11:00 a.m., New York time, on each date on which a payment of principal of or any interest on this Junior Note is payable, as set forth herein, such amounts, in U.S. dollars, as are necessary (with any amounts then held by the Fiscal Agent

 

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and available for the purpose) to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on this Junior Note as set forth herein and in the Junior Note Fiscal Agency Agreement. Payments of principal of or any interest on the Junior Notes will be made (i) by wire transfer of immediately available funds to an account maintained by the payee with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of the account to which payment is to be made or (ii) if no such notice is given, by mailing a check to the payee at the address reflected in the securities register maintained pursuant to Section 6 of the Junior Note Fiscal Agency Agreement. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Junior Notes shall remain in effect with respect to any future payments with respect to such Junior Notes payable to such holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 of the Junior Note Fiscal Agency Agreement for the payment, subject to the Payment Restrictions, from funds so paid by the Issuer of the principal of and any interest on this Junior Note. Any monies held in respect of this Junior Note remaining unclaimed at the end of two years after such principal and such interest shall have become payable in accordance with the Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer may have to pay the principal of and interest on this Junior Note, subject to the Payment Restrictions. To the extent that the Fiscal Agent is not acting as Paying Agent, references to the Fiscal Agent in this Section 5(a) shall include the Paying Agent in such capacity.

(b) In any case where the scheduled payment date or scheduled maturity date of any Junior Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

6. Duties and Taxes . The Issuer shall pay all stamp and other duties, if any, which may be imposed by the United States of America or any governmental entity or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Junior Note Fiscal Agency Agreement or the initial issuance of this Junior Note. All payments will be made by the Issuer without withholding or deduction for or on account for any present or future tax, duty, assessment or other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein, unless such withholding or deduction is required by law. The Issuer shall not be required to make any additional payment with respect to any withholding or deduction so required.

 

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7. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any entity whose underlying assets are considered to include “ plan assets ” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “ plan assets ” of a Plan or a plan subject to a Similar Law, may acquire this Junior Note, unless the acquisition and holding of the Junior Note is exempt under one or more of Prohibited Transaction Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Junior Note shall constitute a representation by such person to the Issuer and the Fiscal Agent that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring the Junior Note on behalf of or with “ plan assets ” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of the Junior Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of the Junior Notes set forth in this paragraph 7 are in addition to those otherwise set forth in Section 6 of the Junior Note Fiscal Agency Agreement and under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

8. Subordination . (a) The Issuer agrees, and each Junior Note holder by accepting a Junior Note agrees, that the indebtedness evidenced by the Junior Notes is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

(b) No payment of interest on or principal of this Junior Note shall be made until all existing and future Indebtedness, Policy Claims and Prior Claims have been paid in full, including upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property. If the Commissioner approves a payment of principal of or interest on the Junior Notes in an amount that is less than the full amount of principal of and interest on the Junior Notes then scheduled to be paid in respect of the Junior Notes, payment of such partial amount shall be made pro rata among Junior Note holders as their interests may appear.

(c) If a distribution is made to Junior Note holders that, because of this paragraph, should not have been made to them, the Junior Note holders who receive the distribution shall pay it over to the Issuer.

(d) The Issuer shall promptly notify the Fiscal Agent and the Paying Agent of any facts known to the Issuer that would cause a payment of principal of or interest on the Junior Notes to violate paragraph 8(b).

 

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(e) This paragraph defines the relative rights of Junior Note holders, on the one hand, and holders of any other claims, on the other hand. Nothing in this Junior Note or the Junior Note Fiscal Agency Agreement shall (i) impair, as between the Issuer and Junior Note holders, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on the Junior Notes in accordance with their terms; (ii) affect the relative rights of Junior Note holders and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or (iii) prevent the Fiscal Agent or any Junior Note holder from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to Junior Note holders.

(f) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by the Junior Notes shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Junior Note Fiscal Agency Agreement.

(g) Each holder of Junior Notes, by acceptance thereof, authorizes and directs the Fiscal Agent on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.

As used herein, “ Indebtedness ” of the Issuer shall mean (i) all existing or future surplus or contribution notes or similar obligations of the Issuer; (ii) all existing or future indebtedness of the Issuer for borrowed money; (iii) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; (iv) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; (v) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, the Junior Notes would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as it may be hereafter amended from time to time, “ Section 645.68 ”) and (vi) any surplus or contribution notes or similar obligations of Ambac Assurance Corporation, unless the terms thereof expressly state that such notes are pari passu with or subordinated to this Junior Note. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, the Junior Notes shall not constitute Indebtedness. Any other junior surplus notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, the Junior Notes.

As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the Issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

 

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As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to the Junior Notes. Under Section 645.68 as currently in effect, such other claims include: (i) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the insurer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; (ii) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii) other than the federal government; (iii) claims of the federal government not included under clause (ii), interest at the legal rate compounded annually on all claims in the class under this clause (iii), and on all claims of the federal government in the class under clause (ii), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; (iv) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; (v) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided, however, that if there are no claims of the federal government, the claims in clause (v) have priority over all claims under clauses (ii) to (x); (vi) claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii); (vii) all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture, but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; (viii) claims based solely on judgments; (ix) interest at the legal rate compounded annually on all claims in the classes under clauses (i) to (viii), except for claims of the federal government in the classes under clauses (ii) and (iii), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and (x) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (ix).

9. Delivery of Certain Information . For so long as any of the Junior Notes remain Outstanding or any amount remains unpaid on any of the Junior Notes, the Issuer shall, in accordance with Rule 144A, comply with the terms of the agreements set forth in Section 8 of the Junior Note Fiscal Agency Agreement.

10. Mutilation, Destruction, Loss, etc . In case this Junior Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and upon the Issuer’s request the Fiscal Agent shall authenticate and deliver a new Junior Note, having a number not contemporaneously outstanding, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest

 

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has been paid on this Junior Note, in exchange and substitution for this Junior Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Junior Note. In the case where this Junior Note is destroyed, lost or stolen, the applicant for a substituted Junior Note shall furnish to the Issuer and the Fiscal Agent such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of this Junior Note, the applicant shall also furnish to the Issuer and the Fiscal Agent reasonable satisfactory evidence of the destruction, loss or theft of this Junior Note and of the ownership thereof; provided, however, that if the registered holder hereof is, in the reasonable judgment of the Issuer and the Fiscal Agent, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new Junior Note in lieu of and substitution for this Junior Note. The Fiscal Agent shall authenticate any such substituted Junior Note and deliver the same only upon written request or authorization of the Issuer. Upon the issuance of any substituted Junior Note, the Issuer and the Fiscal Agent may require the payment by the registered holder thereof of a sum sufficient to cover fees and expenses connected therewith. In case this Junior Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute Junior Note, pay or authorize the payment of the same (without surrender thereof except if this Junior Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 10 as hereinabove set forth.

11. Amendments . Section 11 of the Junior Note Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and with the consent of the holders of not less than a majority in aggregate principal amount of the Junior Notes then Outstanding or by written consent of such percentage in aggregate principal amount of the Junior Notes then Outstanding, the Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, modify, amend or supplement the Junior Note Fiscal Agency Agreement or the terms of the Junior Notes or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver or other action shall be conclusive and binding on the holder of this Junior Note and on all future holders of this Junior Note and of any Junior Note issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Junior Note. The Junior Note Fiscal Agency Agreement and the terms of the Junior Notes may, with the prior approval of the Commissioner, be modified or amended by the Issuer and the Fiscal Agent, without the consent of any holders of Junior Notes, for the purpose of (a) adding to the covenants of the Issuer for the benefit of the holders of Junior Notes, or (b) surrendering any right or power conferred upon the Issuer, or (c) securing the Junior Notes, or (d) evidencing the succession of another corporation to the Issuer and the assumption by such successor of the covenants and obligations of the Issuer herein and in the Junior Note Fiscal Agency Agreement as permitted by the Junior Notes and the Junior Note Fiscal Agency Agreement, or (e) modifying the restrictions on, and procedures for, resale and other transfers of the Junior Notes to the extent required by any change in applicable law or regulation (or the interpretation thereof) or in practices relating to the resale or transfer of restricted securities generally, or (f) accommodating the issuance, if any, of Junior Notes in book-entry or certificated form and matters related thereto which do not adversely affect the interest of any Junior Note holder in any material respect, or (g) curing any ambiguity or correcting or supplementing any defective provision contained herein or in the Junior Note Fiscal

 

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Agency Agreement in a manner which does not adversely affect the interest of any Junior Note holder in any material respect, or (h) effecting any amendment which the Issuer and the Fiscal Agent may determine is necessary or desirable and which shall not adversely affect the interest of any Junior Note holder, to all of which each holder of any Junior Note, by acceptance thereof, consents.

12. Remedies . Holders of Junior Notes may enforce the Junior Note Fiscal Agency Agreement or the Junior Notes only in the manner set forth below.

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), the Junior Notes will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the Fiscal Agent or any holder of the Junior Notes, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Junior Note or the Junior Note Fiscal Agency Agreement, in no event shall the Fiscal Agent or any holder of the Junior Notes be entitled to declare the Junior Notes to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves in whole or in part a payment of any interest on or principal of, or any redemption payment with respect to, any Junior Notes and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of the Fiscal Agent or any holder of Junior Notes. In the event that the Issuer fails to perform any of its other obligations hereunder or under the Junior Note Fiscal Agency Agreement, each holder of the Junior Notes may pursue any available remedy to enforce the performance of any provision of such Junior Notes or the Junior Note Fiscal Agency Agreement; provided, however, that such remedy shall in no event include the right to declare the Junior Notes immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law. A delay or omission by any Junior Note holder in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder or under the Junior Note Fiscal Agency Agreement and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Notwithstanding any other provision of this Junior Note or the Junior Note Fiscal Agency Agreement, the right of any holder of Junior Notes to receive payment of the principal of and interest on such holder’s Junior Notes on or after the respective scheduled payment or scheduled maturity dates expressed in such Junior Notes, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to such payment on such dates having received the approval of the Commissioner pursuant to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

 

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13. Optional Redemption . (a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, the Junior Notes are subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of the Junior Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the aggregate principal amount of the Junior Notes to be redeemed plus any accrued but unpaid interest (including interest on interest). The Junior Notes may not be redeemed at the option of any Junior Note holder. Notice of any redemption pursuant to this paragraph 13(a) will be given to holders of the Junior Notes as set forth below. Interest installments due on this Junior Note on or prior to a redemption date will be payable to the holder of this Junior Note of record at the close of business on the relevant record date, all as provided in the Junior Note Fiscal Agency Agreement.

(b) In the case of any partial redemption of Junior Notes, each Outstanding Junior Note shall be redeemed pro rata ; provided that if at the time of redemption such Junior Notes are registered as a Global Note, the U.S. Depositary for such Global Note shall determine, in accordance with its procedures, the principal amount of such Junior Notes to be redeemed held by each holder of a beneficial interest in such Global Note.

(c) Notices to redeem Junior Notes shall be given to holders of Junior Notes in writing mailed, first-class postage prepaid, to each holder of registered Junior Notes, or portions thereof, so to be redeemed, at such holder’s address as it appears in the securities register. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holders of Junior Notes in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer or by the Fiscal Agent on behalf of and at the instruction of the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Neither the failure to give notice nor any defect in any notice given to any particular holder of a Junior Note shall affect the sufficiency of any notice with respect to other Junior Notes. Notices to redeem Junior Notes shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of the Junior Notes to be redeemed (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue if the Junior Notes are so redeemed. In addition, in the case of a partial redemption, such notice shall specify the Junior Notes called for redemption and the aggregate principal amount of the Junior Notes to remain Outstanding after the redemption.

(d) If notice of redemption has been given in the manner set forth in paragraph 13(c) hereof, the Junior Notes so to be redeemed shall be payable in full on the date specified in such notice and upon presentation and surrender of the Junior Notes at the place or places specified in such notice, the Junior Notes shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, if monies for the redemption of Junior Notes called for redemption shall have been made available at the Corporate Trust Office of the Fiscal Agent for redemption on the

 

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redemption date, the Junior Notes called for redemption shall cease to bear interest, and the only right of the holders with respect to such Junior Notes or portion thereof being redeemed shall be to receive payment of the Redemption Price. If monies for the redemption of the Junior Notes are not made available for payment until after the redemption date, the Junior Notes called for redemption shall not cease to bear interest until such monies have been so made available.

(e) Any Junior Note which is to be redeemed only in part shall be surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer and the Fiscal Agent duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver to the holder of such Junior Note without service charge, a new registered Junior Note or Junior Notes, of any authorized denomination as requested by such holder, and as permitted by Section 1(d) of the Junior Note Fiscal Agency Agreement, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Junior Note so surrendered.

14. Obligations Not Impaired . No reference herein to the Junior Note Fiscal Agency Agreement and no provision of this Junior Note or of the Junior Note Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, subject to the Payment Restrictions, to pay the principal of and interest on this Junior Note at the times, place and rate, and in the coin or currency, herein prescribed.

15. GOVERNING LAW . THIS JUNIOR NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS JUNIOR NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE PARTIES TO THE JUNIOR NOTE FISCAL AGENCY AGREEMENT AND HOLDERS OF THIS JUNIOR NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

16. Covenants . The Issuer shall not redeem any junior surplus notes, contribution notes or similar obligations or indebtedness issued by the Issuer or Ambac Assurance Corporation (or any successor or assign thereof in respect of such notes, obligations or indebtedness) that rank pari passu with the Junior Notes unless it also redeems a pro rata amount of the Junior Notes. . Further, the Issuer shall not redeem any Junior Notes unless it also redeems a pro rata amount of any other junior surplus notes issued by the Issuer (or any successor or assign thereof in respect of such junior notes) that rank pari passu with the Junior Notes outstanding at the time of redemption. In addition, neither the Issuer nor the General Account shall make any payments of interest or principal on any junior surplus or contribution

 

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notes or similar obligations or indebtedness that rank junior to the Junior Notes until all accrued interest and the principal amount of the Junior Notes has been paid in full. No junior surplus notes issued by the Segregated Account or the General Account that rank pari passu with or junior to the Junior Notes shall be on terms that are materially more favorable to the holders of such notes than the Junior Notes.

17. Notice . The initial holder of this Junior Note hereby agrees, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to provide Ambac Assurance Corporation, as Management Services Provider for the Issuer, with a copy by email to the Rehabilitator, with prior written notice of any sale, disposition or other transfer of this Junior Note by such initial holder. Such written notice shall be provided prior to and as a condition to the consummation of the sale, disposition or other transfer by the initial holder, and shall contain the identity and address of the transferee and the date upon which the sale, disposition, or other transfer is effective.

 

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EXHIBIT C-1

FORM OF CERTIFICATE

FOR EXCHANGE OF RESTRICTED

CERTIFICATED NOTE

(Exchanges pursuant to § 6(b)(i)

of the Junior Note Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be duly amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement.

This letter relates to $        principal amount of Restricted Certificated Notes held in definitive form by [insert name of holder] (the “ Holder ”). The Holder has requested an exchange of such Junior Notes.

In connection with such request and in respect of such Junior Notes, the Holder does hereby certify that such Junior Notes are owned by the Holder and are being exchanged without transfer.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

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The following signature must be guaranteed by an “ eligible guarantor institution ” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “ signature guarantee program ” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Holder]
By:  

 

Name:  
Title:  

Dated:

 

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT C-2

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED CERTIFICATED

NOTE TO PERMANENT REGULATION S GLOBAL NOTE

(Transfers Pursuant to § 6(b)(ii)

of the Junior Note Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
   Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be duly amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement.

The undersigned (the “ Transferor ”) has requested a transfer of $         principal amount of Restricted Certificated Notes to a person who will take delivery thereof in the form of an equal principal amount of Junior Notes evidenced by the Permanent Regulation S Global Note (CUSIP No.            ).

In connection with such request and in respect of such Junior Notes, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 904 or Rule 144 under the United States Securities Act of 1933, as amended (the “ Act ”), and accordingly the Transferor does hereby further certify that:

(1) if the transfer has been effected pursuant to Rule 904:

(A) the offer of the Junior Notes was not made to a person in the United States;

(B) either:

(i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

(ii) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;

 

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(C) no directed selling efforts have been made in contravention of the requirements of Rule 904 of Regulation S; and

(D) the transaction is not part of a plan or scheme to evade the registration requirements of the Act.

(2) if the transfer has been effected pursuant to Rule 144, the Junior Notes have been transferred in a transaction permitted by Rule 144.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. Terms used in this certificate and not otherwise defined in the Junior Note Fiscal Agency Agreement have the meanings set forth in Regulation S under the Act.

The following signature must be guaranteed by an “ eligible guarantor institution ” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “ signature guarantee program ” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT C-3

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED CERTIFICATED

NOTE TO RESTRICTED GLOBAL SECURITY

(Transfers Pursuant to § 6(b)(ii)

of the Junior Note Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be duly amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement.

The undersigned (the “ Transferor ”) has requested a transfer of $         principal amount of Restricted Certificated Notes to a person that will take delivery thereof in the form of an equal principal amount of Junior Notes evidenced by the Restricted Global Note (CUSIP No.            ).

In connection with such request, and in respect of such Junior Notes, the Transferor does hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended, and, accordingly, the Transferor does hereby further certify that the Junior Notes are being transferred to a person that the Transferor reasonably believes is purchasing the Junior Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “ qualified institutional buyer ” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

C-3-1


The following signature must be guaranteed by an “ eligible guarantor institution ” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “ signature guarantee program ” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:

cc: The Segregated Account of Ambac Assurance Corporation

 

C-3-2


EXHIBIT D

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED GLOBAL

NOTE TO TEMPORARY REGULATION S GLOBAL NOTE

(Transfers Pursuant to § 6(c)(ii)

of the Junior Note Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be duly amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement.

This letter relates to $ principal amount of Junior Notes which are evidenced by the Restricted Global Note (CUSIP No.             ) and held with the U.S. Depositary in the name of [insert name of transferor] (the “ Transferor ”). The Transferor has requested a transfer of such beneficial interest in the Junior Notes to a person who will take delivery thereof in the form of an equal principal amount of Junior Notes evidenced by the Temporary Regulation S Global Note (CUSIP No.             ), which amount, immediately after such transfer, is to be held with the U.S. Depositary through Euroclear or Clearstream Banking or both (Common Code             ).

In connection with such request and in respect of such Junior Notes, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 904 under the United States Securities Act of 1933, as amended (the “ Act ”), and accordingly the Transferor does hereby further certify that:

(1) the offer of the Junior Notes was not made to a person in the United States;

(2) either:

(A) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

(B) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;

 

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(3) no directed selling efforts have been made in contravention of the requirements of Rule 904 of Regulation S;

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Act; and

(5) upon completion of the transaction, the beneficial interest being transferred as described above was held with the U.S. Depositary through Euroclear or Clearstream Banking or both (Common Code                     ).

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. Terms used in this certificate and not otherwise defined in the Junior Note Fiscal Agency Agreement have the meanings set forth in Regulation S under the Act.

The following signature must be guaranteed by an “ eligible guarantor institution ” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “ signature guarantee program ” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT E

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED GLOBAL

NOTE TO PERMANENT REGULATION S GLOBAL NOTE

(Transfers Pursuant to § 6(c)(iii)

of the Junior Note Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement.

This letter relates to $        principal amount of Junior Notes which are evidenced by the Restricted Global Note (CUSIP No.            ) and held with the U.S. Depositary in the name of [insert name of transferor] (the “ Transferor ”). The Transferor has requested a transfer of such beneficial interest in the Junior Notes to a person that will take delivery thereof in the form of an equal principal amount of Junior Notes evidenced by the Permanent Regulation S Global Note (CUSIP No.            ).

In connection with such request and in respect of such Securities, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 904 or Rule 144 under the United States Securities Act of 1933, as amended (the “ Act ”), or any other exemption from registration under the Act, and accordingly the Transferor does hereby further certify that:

(1) if the transfer has been effected pursuant to Rule 904:

(A) the offer of the Junior Notes was not made to a person in the United States;

(B) either:

(i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

 

E-1


(ii) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

(C) no directed selling efforts have been made in contravention of the requirements of Rule 904 of Regulation S; and

(D) the transaction is not part of a plan or scheme to evade the registration requirements of the Act;

(2) if the transfer has been effected pursuant to Rule 144, the Junior Notes have been transferred in a transaction permitted by Rule 144; or

(3) if such transfer has been effected pursuant to any other exemption under the Act, the Junior Notes have been transferred in a transaction permitted by such exemption (and the Transferor has provided a certification to that effect and if the Fiscal Agent or the Issuer so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to compliance with the restrictions contained in the legend set forth on the security).

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. Terms used in this certificate and not otherwise defined in the Junior Note Fiscal Agency Agreement have the meanings set forth in Regulation S under the Act.

The following signature must be guaranteed by an “ eligible guarantor institution ” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “ signature guarantee program ” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT F

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM TEMPORARY REGULATION S GLOBAL NOTE TO

RESTRICTED GLOBAL NOTE

(Transfers Pursuant to § 6(c)(iv)

of the Junior Note Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement.

This letter relates to $        principal amount of Junior Notes which are evidenced by the Temporary Regulation S Global Note (CUSIP No.            ) and held with the U.S. Depositary through Euroclear or Clearstream Banking or both (Common Code     ) in the name of [insert name of transferor] (the “ Transferor ”). The Transferor has requested a transfer of such beneficial interest in Junior Notes to a person that will take delivery thereof in the form of an equal principal amount of Junior Notes evidenced by the Restricted Global Note (CUSIP No.            ).

In connection with such request, and in respect of such Junior Notes, the Transferor does hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A under the Act and, accordingly, the Transferor does hereby further certify that the Junior Notes are being transferred to a person that the Transferor reasonably believes is purchasing the Junior Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “ qualified institutional buyer ” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

The following signature must be guaranteed by an “ eligible guarantor institution ” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “ signature guarantee program ” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

F-1


[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:

cc: The Segregated Account of Ambac Assurance Corporation

 

F-2


EXHIBIT G

FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP

 

To: [Euroclear Bank S.A./N.V., as operator of the Euroclear System] OR

[Clearstream Banking, société anonyme ]

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%

Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Ladies and Gentlemen:

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement. We are the beneficial owner of $        principal amount of Junior Notes issued under the Junior Note Fiscal Agency Agreement and represented by a Regulation S Temporary Global Note (as defined in the Junior Note Fiscal Agency Agreement).

We hereby certify as follows:

[ CHECK A OR B AS APPLICABLE .]

 

  ¨   A. We are a non-U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended).

 

  ¨   B. We are a U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended) that purchased the Junior Notes in a transaction that did not require registration under the Securities Act of 1933, as amended.

 

G-1


You, the Issuer and the Fiscal Agent are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

Very truly yours,
[NAME OF BENEFICIAL OWNER]
By:  

 

Name:  
Title:  
Address:  

Dated:

cc: The Segregated Account of Ambac Assurance Corporation

 

G-2


EXHIBIT H

FORM OF RULE 144 CERTIFICATE

The Bank of New York Mellon

   as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%

Junior Surplus Notes scheduled to mature on June 7, 2020 (the “Junior Notes”)

Reference is hereby made to the Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (as it may be amended from time to time, the “ Junior Note Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Junior Note Fiscal Agency Agreement.

The undersigned (the “ Transferor ”) has requested a transfer of Restricted Notes to a person who will take delivery thereof without the Legend on such Restricted Notes. The Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 144 under the United States Securities Act of 1933, as amended (the “ Act ”), and accordingly the Transferor does hereby further certify that the Junior Notes have been transferred in a transaction permitted by Rule 144.

 

Very truly yours,
[NAME OF BENEFICIAL OWNER]
By:  

 

Name:  
Title:  
Address:  

Dated:

cc: The Segregated Account of Ambac Assurance Corporation

 

H-1

Exhibit 4.6

CERTIFICATED NOTE

THIS 5.1% JUNIOR SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ JUNIOR NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ACCORDANCE WITH THAT CERTAIN JUNIOR NOTE FISCAL AGENCY AGREEMENT BY AND BETWEEN THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION AND THE BANK OF NEW YORK MELLON (TOGETHER WITH ITS PERMITTED SUCCESSORS AND ASSIGNS, THE “ FISCAL AGENT ”), DATED AS OF APRIL 30, 2013 (AS IT MAY BE DULY AMENDED FROM TIME TO TIME, THE “ JUNIOR NOTE FISCAL AGENCY AGREEMENT ”), COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICE OF THE FISCAL AGENT. EACH PURCHASER OF THIS JUNIOR NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS JUNIOR NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ RULE 144A ”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”).

THE JUNIOR NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.

ANY PERSON ACQUIRING THIS JUNIOR NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AND THE FISCAL AGENT AS SET FORTH IN PARAGRAPH 8 HEREOF.

 

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ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS JUNIOR NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).

 

2


JUNIOR SURPLUS NOTE ISSUED BY

THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION

 

JSNA- 1         $350,000,0000   CUSIP:02314K AN2

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”), for value received, hereby promises to pay, subject to the Payment Restrictions (as defined in paragraph 1 of the reverse side of this Junior Note), to AMBAC FINANCIAL GROUP, INC., or registered assigns, the principal sum of three hundred and fifty million United States dollars ($350,000,000) on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner from May 1, 2013 or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date the Junior Notes are scheduled to mature, commencing June 7, 2013 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “ scheduled maturity date ” or other date for the payment of principal of the Junior Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 13 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order). As specified on the reverse hereof, all payments of principal of or interest on this Junior Note may be made only with the prior approval of the Commissioner. The interest so payable, and punctually paid or duly provided for, on any Scheduled Interest Payment Date shall be paid, in accordance with the terms of the Junior Note Fiscal Agency Agreement hereinafter referred to, to the person (the “ registered holder ”) in whose name this Junior Note (or one or more predecessor Junior Notes) is registered at the close of business on May 20 (whether or not a Business Day, as defined herein), as the case may be (each, a “ Regular Record Date ”), next preceding such Scheduled Interest Payment Date. Interest on the Junior Notes shall be calculated on the basis of a 360-day year of twelve months of 30 days each. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Junior Note (or one or more predecessor Junior Notes) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of the Junior Notes not less than 15 days prior to such special record date.

Principal of this Junior Note shall be payable against surrender hereof at the Corporate Trust Office of the Fiscal Agent hereinafter referred to and at the offices of such other Paying Agents as the Issuer shall have appointed pursuant to the Junior Note Fiscal Agency Agreement. Payments of principal of the Junior Notes shall be made only against surrender of the Junior Notes; provided that in the case of payment of only a portion of principal, the Issuer shall execute a new registered Junior Note or Junior Notes in aggregate principal amount equal to and in exchange for the remaining portion of the principal of the Junior Note so surrendered. Payments of interest on this Junior Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives

 

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notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address appearing on the aforementioned register. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Junior Notes of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to such Junior Notes payable to such holder. The Issuer agrees that until this Junior Note has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the full principal of and interest remaining unpaid on this Junior Note have been made available for payment and either paid or returned to the Issuer as provided herein, it will at all times maintain offices or agencies in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Junior Notes as herein provided.

Reference is hereby made to the further provisions of this Junior Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

This Junior Note may be executed by the Issuer by manual, facsimile or portable document format signatures, and such signatures may be executed on separate counterparts.

Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, this Junior Note shall not be valid or obligatory for any purpose.

 

4


IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

Dated: May 1, 2013

 

THE SEGREGATED ACCOUNT

OF AMBAC ASSURANCE CORPORATION,

By:   Ambac Assurance Corporation, as Manager
By:  

/s/ DAVID TRICK

Name:   David Trick
Title:  

Chief Financial Officer and Senior

Managing Director

This is one of the Junior Notes referred to in the within-mentioned Junior Note Fiscal Agency Agreement.

 

THE BANK OF NEW YORK MELLON

        as Fiscal Agent

By:

  /s/ STACEY POINDEXTER
  Authorized Officer

 

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FORM OF REVERSE

1. General . This Note is one of a duly authorized issue of 5.1% Junior Surplus Notes scheduled to mature on June 7, 2020 of the Issuer (herein called the “ Junior Notes ”), unlimited in aggregate principal amount. The Issuer and The Bank of New York Mellon have entered into a Junior Note Fiscal Agency Agreement, dated as of April 30, 2013 (such instrument, as it may be duly amended from time to time, is herein called the “ Junior Note Fiscal Agency Agreement ”), which provides for the mechanism for issuing the Junior Notes and, inter alia , sets forth certain duties of the Fiscal Agent in connection therewith. As used herein, the term “ Fiscal Agent ” includes any successor fiscal agent under the Junior Note Fiscal Agency Agreement. Copies of the Junior Note Fiscal Agency Agreement are on file and available for inspection at the Corporate Trust Office of the Fiscal Agent in the Borough of Manhattan, The City of New York. Holders of Junior Notes are referred to the Junior Note Fiscal Agency Agreement for a statement of the terms thereof, including those relating to transfer, payment, exchanges and certain other matters. The Fiscal Agent or any Paying Agent shall also act as Transfer Agent and securities registrar.

Capitalized definitional terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Junior Note Fiscal Agency Agreement. The terms of the Junior Notes include those stated in the Junior Note Fiscal Agency Agreement. The Junior Notes are subject to all such terms, and holders of the Junior Notes are referred to the Junior Note Fiscal Agency Agreement for a statement of such terms. Holders of Junior Notes may enforce the Junior Notes only in accordance with the Junior Note Fiscal Agency Agreement.

The Junior Notes are direct and unsecured obligations of the Issuer and, subject to the payment restrictions contained in paragraphs 4 and 8 hereof (the “ Payment Restrictions ”), are scheduled to mature on June 7, 2020.

Any reference herein to the term “ scheduled maturity date ” or other date for the payment of principal of the Junior Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 13 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order).

2. Form of Junior Notes . The Junior Notes are issuable only in fully registered form without coupons.

3. Registration, Transfer and Exchange . The Issuer shall maintain, in the Borough of Manhattan, The City of New York, a Transfer Agent where Junior Notes may be registered or surrendered for registration of transfer or exchange. The Issuer has initially appointed the Fiscal Agent at its Corporate Trust Office as its Transfer Agent. The Issuer shall cause the Transfer Agent to act as a securities registrar and shall cause to be kept at the office of the Transfer Agent a register in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Junior Notes and registration of transfers and exchanges of Junior Notes. The Issuer reserves the right to vary or terminate the appointment of the Transfer Agent or to appoint additional or other Transfer Agents or to approve any change in the office through which any Transfer Agent acts; provided that there shall at all times be a Transfer Agent in the

 

6


Borough of Manhattan, The City of New York. The Issuer shall cause written notice of any resignation, termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent shall act to be provided to holders of Junior Notes.

Subject to the restrictions set forth herein and in the Junior Note Fiscal Agency Agreement, the transfer of a Junior Note is registrable on the aforementioned register upon surrender of such Junior Note at any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the registered holder thereof or such holder’s attorney duly authorized in writing. Upon such surrender of this Junior Note for registration of transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Junior Notes, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.

Subject to the restrictions set forth herein and in the Junior Note Fiscal Agency Agreement, at the option of the registered holder upon request confirmed in writing, Junior Notes may be exchanged for Junior Notes of any authorized denominations and aggregate principal amount upon surrender of the Junior Notes to be exchanged at the office of any Transfer Agent. Whenever any Junior Notes are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Junior Notes which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange shall be effected upon the Issuer being reasonably satisfied with the documents of title and identity of the person making the request and subject to the restrictions set forth in this Junior Note and/or the Junior Note Fiscal Agency Agreement and such reasonable regulations as the Issuer may from time to time agree with the Fiscal Agent.

Junior Notes may be redeemed by the Issuer, in whole or in part, but only to the extent permitted by the Payment Restrictions, including the prior approval of the Commissioner, and in accordance with paragraph 13 hereof. In the event of a partial redemption, the Issuer shall not be required (i) to register the transfer of or exchange any Junior Note during a period beginning at the opening of business 15 days before the date notice is given identifying the Junior Notes to be redeemed, or (ii) to register the transfer or exchange of any Junior Note, or portion thereof, called for redemption.

All Junior Notes issued upon any registration of transfer or exchange of Junior Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits, as the Junior Notes surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Fiscal Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith, other than an exchange in connection with the partial redemption of a Junior Note not involving any registration of a transfer.

Prior to due presentment of this Junior Note for registration of transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name this Junior Note is registered as the absolute owner hereof for all purposes, whether or not this Junior Note be overdue, and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected by notice to the contrary.

 

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4. Restrictions on Payment . (a) Notwithstanding anything to the contrary set forth herein or in the Junior Note Fiscal Agency Agreement, any payment of principal of, interest on or any monies owing with respect to this Junior Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Junior Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day (as defined below) on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated on the face hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder. If the Commissioner approves a payment of principal of or interest on the Junior Notes in an amount that is less than the full amount of principal of and interest on the Junior Notes then scheduled to be paid in respect of the Junior Notes, payment of such partial amount shall be made pro rata among Junior Note holders.

(b) Any payment of principal of or interest on any Junior Note as to which the approval of the Commissioner has been obtained and which is not punctually paid or duly provided for on the scheduled payment date or scheduled maturity date thereof, as set forth herein (such payment being referred to as an “Unpaid Amount”), subject to the provisions of paragraph 12(b), will forthwith cease to be payable to the registered holder of this Junior Note on the relevant record date designated herein, and such Unpaid Amount, together with interest thereon accrued at the rate of interest per annum applicable to principal hereunder, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, will instead be payable to the registered holder of this Junior Note on a subsequent special record date. The Issuer shall fix the special record date and payment date for the payment of any Unpaid Amount. At least 15 days before the special record date, the Issuer shall mail to each holder of the Junior Notes and the Fiscal Agent a notice that states the special record date, payment date and amount of interest or principal to be paid. On the payment date set forth in such notice, the Paying Agent shall pay the amount of interest or principal to be so paid to each holder of the Junior Notes in the manner set forth in Section 4(a) of the Junior Note Fiscal Agency Agreement.

5. Payment . (a) For so long as the Fiscal Agent is acting as a Paying Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, or such other Paying Agent if the Fiscal Agent is no longer acting as a Paying Agent, in immediately available funds on or prior to 11:00 a.m., New York time, on each date on which a payment of principal of or any interest on this Junior Note is payable, as set forth herein, such amounts, in U.S. dollars, as are necessary (with any amounts then held by the Fiscal Agent and

 

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available for the purpose) to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on this Junior Note as set forth herein and in the Junior Note Fiscal Agency Agreement. Payments of principal of or any interest on the Junior Notes will be made (i) by wire transfer of immediately available funds to an account maintained by the payee with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of the account to which payment is to be made or (ii) if no such notice is given, by mailing a check to the payee at the address reflected in the securities register maintained pursuant to Section 6 of the Junior Note Fiscal Agency Agreement. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Junior Notes shall remain in effect with respect to any future payments with respect to such Junior Notes payable to such holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 of the Junior Note Fiscal Agency Agreement for the payment, subject to the Payment Restrictions, from funds so paid by the Issuer of the principal of and any interest on this Junior Note. Any monies held in respect of this Junior Note remaining unclaimed at the end of two years after such principal and such interest shall have become payable in accordance with the Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer may have to pay the principal of and interest on this Junior Note, subject to the Payment Restrictions. To the extent that the Fiscal Agent is not acting as Paying Agent, references to the Fiscal Agent in this Section 5(a) shall include the Paying Agent in such capacity.

(b) In any case where the scheduled payment date or scheduled maturity date of any Junior Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

6. Duties and Taxes . The Issuer shall pay all stamp and other duties, if any, which may be imposed by the United States of America or any governmental entity or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Junior Note Fiscal Agency Agreement or the initial issuance of this Junior Note. All payments will be made by the Issuer without withholding or deduction for or on account for any present or future tax, duty, assessment or other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein, unless such withholding or deduction is required by law. The Issuer shall not be required to make any additional payment with respect to any withholding or deduction so required.

 

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7. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any entity whose underlying assets are considered to include “ plan assets ” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “ plan assets ” of a Plan or a plan subject to a Similar Law, may acquire this Junior Note, unless the acquisition and holding of the Junior Note is exempt under one or more of Prohibited Transaction Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Junior Note shall constitute a representation by such person to the Issuer and the Fiscal Agent that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring the Junior Note on behalf of or with “ plan assets ” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of the Junior Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of the Junior Notes set forth in this paragraph 7 are in addition to those otherwise set forth in Section 6 of the Junior Note Fiscal Agency Agreement and under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

8. Subordination . (a) The Issuer agrees, and each Junior Note holder by accepting a Junior Note agrees, that the indebtedness evidenced by the Junior Notes is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

(a) No payment of interest on or principal of this Junior Note shall be made until all existing and future Indebtedness, Policy Claims and Prior Claims have been paid in full, including upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property. If the Commissioner approves a payment of principal of or interest on the Junior Notes in an amount that is less than the full amount of principal of and interest on the Junior Notes then scheduled to be paid in respect of the Junior Notes, payment of such partial amount shall be made pro rata among Junior Note holders as their interests may appear.

(b) If a distribution is made to Junior Note holders that, because of this paragraph, should not have been made to them, the Junior Note holders who receive the distribution shall pay it over to the Issuer.

(c) The Issuer shall promptly notify the Fiscal Agent and the Paying Agent of any facts known to the Issuer that would cause a payment of principal of or interest on the Junior Notes to violate paragraph 8(b).

 

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(d) This paragraph defines the relative rights of Junior Note holders, on the one hand, and holders of any other claims, on the other hand. Nothing in this Junior Note or the Junior Note Fiscal Agency Agreement shall (i) impair, as between the Issuer and Junior Note holders, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on the Junior Notes in accordance with their terms; (ii) affect the relative rights of Junior Note holders and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or (iii) prevent the Fiscal Agent or any Junior Note holder from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to Junior Note holders.

(e) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by the Junior Notes shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Junior Note Fiscal Agency Agreement.

(f) Each holder of Junior Notes, by acceptance thereof, authorizes and directs the Fiscal Agent on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.

As used herein, “ Indebtedness ” of the Issuer shall mean (i) all existing or future surplus or contribution notes or similar obligations of the Issuer; (ii) all existing or future indebtedness of the Issuer for borrowed money; (iii) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; (iv) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; (v) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, the Junior Notes would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as it may be hereafter amended from time to time, “ Section 645.68 ”) and (vi) any surplus or contribution notes or similar obligations of Ambac Assurance Corporation, unless the terms thereof expressly state that such notes are pari passu with or subordinated to this Junior Note. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, the Junior Notes shall not constitute Indebtedness. Any other junior surplus notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, the Junior Notes.

As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the Issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

 

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As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to the Junior Notes. Under Section 645.68 as currently in effect, such other claims include: (i) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the insurer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; (ii) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii) other than the federal government; (iii) claims of the federal government not included under clause (ii), interest at the legal rate compounded annually on all claims in the class under this clause (iii), and on all claims of the federal government in the class under clause (ii), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; (iv) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; (v) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided, however, that if there are no claims of the federal government, the claims in clause (v) have priority over all claims under clauses (ii) to (x); (vi) claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii); (vii) all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture, but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; (viii) claims based solely on judgments; (ix) interest at the legal rate compounded annually on all claims in the classes under clauses (i) to (viii), except for claims of the federal government in the classes under clauses (ii) and (iii), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and (x) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (ix).

9. Delivery of Certain Information . For so long as any of the Junior Notes remain Outstanding or any amount remains unpaid on any of the Junior Notes, the Issuer shall, in accordance with Rule 144A, comply with the terms of the agreements set forth in Section 8 of the Junior Note Fiscal Agency Agreement.

10. Mutilation, Destruction, Loss, etc . In case this Junior Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and upon the Issuer’s request the Fiscal Agent shall authenticate and deliver a new Junior Note, having a number not contemporaneously outstanding, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest

 

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has been paid on this Junior Note, in exchange and substitution for this Junior Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Junior Note. In the case where this Junior Note is destroyed, lost or stolen, the applicant for a substituted Junior Note shall furnish to the Issuer and the Fiscal Agent such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of this Junior Note, the applicant shall also furnish to the Issuer and the Fiscal Agent reasonable satisfactory evidence of the destruction, loss or theft of this Junior Note and of the ownership thereof; provided, however, that if the registered holder hereof is, in the reasonable judgment of the Issuer and the Fiscal Agent, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new Junior Note in lieu of and substitution for this Junior Note. The Fiscal Agent shall authenticate any such substituted Junior Note and deliver the same only upon written request or authorization of the Issuer. Upon the issuance of any substituted Junior Note, the Issuer and the Fiscal Agent may require the payment by the registered holder thereof of a sum sufficient to cover fees and expenses connected therewith. In case this Junior Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute Junior Note, pay or authorize the payment of the same (without surrender thereof except if this Junior Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 10 as hereinabove set forth.

11. Amendments . Section 11 of the Junior Note Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and with the consent of the holders of not less than a majority in aggregate principal amount of the Junior Notes then Outstanding or by written consent of such percentage in aggregate principal amount of the Junior Notes then Outstanding, the Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, modify, amend or supplement the Junior Note Fiscal Agency Agreement or the terms of the Junior Notes or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver or other action shall be conclusive and binding on the holder of this Junior Note and on all future holders of this Junior Note and of any Junior Note issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Junior Note. The Junior Note Fiscal Agency Agreement and the terms of the Junior Notes may, with the prior approval of the Commissioner, be modified or amended by the Issuer and the Fiscal Agent, without the consent of any holders of Junior Notes, for the purpose of (a) adding to the covenants of the Issuer for the benefit of the holders of Junior Notes, or (b) surrendering any right or power conferred upon the Issuer, or (c) securing the Junior Notes, or (d) evidencing the succession of another corporation to the Issuer and the assumption by such successor of the covenants and obligations of the Issuer herein and in the Junior Note Fiscal Agency Agreement as permitted by the Junior Notes and the Junior Note Fiscal Agency Agreement, or (e) modifying the restrictions on, and procedures for, resale and other transfers of the Junior Notes to the extent required by any change in applicable law or regulation (or the interpretation thereof) or in practices relating to the resale or transfer of restricted securities generally, or (f) accommodating the issuance, if any, of Junior Notes in book-entry or certificated form and matters related thereto which do not adversely affect the interest of any Junior Note holder in any material respect, or (g) curing any ambiguity or correcting or supplementing any defective provision contained herein or in the Junior Note Fiscal

 

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Agency Agreement in a manner which does not adversely affect the interest of any Junior Note holder in any material respect, or (h) effecting any amendment which the Issuer and the Fiscal Agent may determine is necessary or desirable and which shall not adversely affect the interest of any Junior Note holder, to all of which each holder of any Junior Note, by acceptance thereof, consents.

12. Remedies . Holders of Junior Notes may enforce the Junior Note Fiscal Agency Agreement or the Junior Notes only in the manner set forth below.

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), the Junior Notes will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the Fiscal Agent or any holder of the Junior Notes, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Junior Note or the Junior Note Fiscal Agency Agreement, in no event shall the Fiscal Agent or any holder of the Junior Notes be entitled to declare the Junior Notes to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves in whole or in part a payment of any interest on or principal of, or any redemption payment with respect to, any Junior Notes and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of the Fiscal Agent or any holder of Junior Notes. In the event that the Issuer fails to perform any of its other obligations hereunder or under the Junior Note Fiscal Agency Agreement, each holder of the Junior Notes may pursue any available remedy to enforce the performance of any provision of such Junior Notes or the Junior Note Fiscal Agency Agreement; provided, however, that such remedy shall in no event include the right to declare the Junior Notes immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law. A delay or omission by any Junior Note holder in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder or under the Junior Note Fiscal Agency Agreement and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Notwithstanding any other provision of this Junior Note or the Junior Note Fiscal Agency Agreement, the right of any holder of Junior Notes to receive payment of the principal of and interest on such holder’s Junior Notes on or after the respective scheduled payment or scheduled maturity dates expressed in such Junior Notes, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to such payment on such dates having received the approval of the Commissioner pursuant to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

 

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13. Optional Redemption . (a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, the Junior Notes are subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of the Junior Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the aggregate principal amount of the Junior Notes to be redeemed plus any accrued but unpaid interest (including interest on interest). The Junior Notes may not be redeemed at the option of any Junior Note holder. Notice of any redemption pursuant to this paragraph 13(a) will be given to holders of the Junior Notes as set forth below. Interest installments due on this Junior Note on or prior to a redemption date will be payable to the holder of this Junior Note of record at the close of business on the relevant record date, all as provided in the Junior Note Fiscal Agency Agreement.

(b) In the case of any partial redemption of Junior Notes, each Outstanding Junior Note shall be redeemed pro rata; provided that if at the time of redemption such Junior Notes are registered as a Global Note, the U.S. Depositary for such Global Note shall determine, in accordance with its procedures, the principal amount of such Junior Notes to be redeemed held by each holder of a beneficial interest in such Global Note.

(c) Notices to redeem Junior Notes shall be given to holders of Junior Notes in writing mailed, first-class postage prepaid, to each holder of registered Junior Notes, or portions thereof, so to be redeemed, at such holder’s address as it appears in the securities register. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holders of Junior Notes in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer or by the Fiscal Agent on behalf of and at the instruction of the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Neither the failure to give notice nor any defect in any notice given to any particular holder of a Junior Note shall affect the sufficiency of any notice with respect to other Junior Notes. Notices to redeem Junior Notes shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of the Junior Notes to be redeemed (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue if the Junior Notes are so redeemed. In addition, in the case of a partial redemption, such notice shall specify the Junior Notes called for redemption and the aggregate principal amount of the Junior Notes to remain Outstanding after the redemption.

(d) If notice of redemption has been given in the manner set forth in paragraph 13(c) hereof, the Junior Notes so to be redeemed shall be payable in full on the date specified in such notice and upon presentation and surrender of the Junior Notes at the place or places specified in such notice, the Junior Notes shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, if monies for the redemption of Junior Notes called for redemption shall have been made available at the Corporate Trust Office of the Fiscal Agent for redemption on the

 

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redemption date, the Junior Notes called for redemption shall cease to bear interest, and the only right of the holders with respect to such Junior Notes or portion thereof being redeemed shall be to receive payment of the Redemption Price. If monies for the redemption of the Junior Notes are not made available for payment until after the redemption date, the Junior Notes called for redemption shall not cease to bear interest until such monies have been so made available.

(e) Any Junior Note which is to be redeemed only in part shall be surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer and the Fiscal Agent duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver to the holder of such Junior Note without service charge, a new registered Junior Note or Junior Notes, of any authorized denomination as requested by such holder, and as permitted by Section 1(d) of the Junior Note Fiscal Agency Agreement, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Junior Note so surrendered.

14. Obligations Not Impaired . No reference herein to the Junior Note Fiscal Agency Agreement and no provision of this Junior Note or of the Junior Note Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, subject to the Payment Restrictions, to pay the principal of and interest on this Junior Note at the times, place and rate, and in the coin or currency, herein prescribed.

15. GOVERNING LAW . THIS JUNIOR NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS JUNIOR NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE PARTIES TO THE JUNIOR NOTE FISCAL AGENCY AGREEMENT AND HOLDERS OF THIS JUNIOR NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

15. Covenants . The Issuer shall not redeem any junior surplus notes, contribution notes or similar obligations or indebtedness issued by the Issuer or Ambac Assurance Corporation (or any successor or assign thereof in respect of such notes, obligations or indebtedness) that rank pari passu with the Junior Notes unless it also redeems a pro rata amount of the Junior Notes. Further, the Issuer shall not redeem any Junior Notes unless it also redeems a pro rata amount of any other junior surplus notes issued by the Issuer (or any successor or assign thereof in respect of such junior notes) that rank pari passu with the Junior Notes outstanding at the time of redemption. In addition, neither the Issuer nor the General Account shall make any payments of interest or principal on any junior surplus or contribution

 

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notes or similar obligations or indebtedness that rank junior to the Junior Notes until all accrued interest and the principal amount of the Junior Notes has been paid in full. No junior surplus notes issued by the Segregated Account or the General Account that rank pari passu with or junior to the Junior Notes shall be on terms that are materially more favorable to the holders of such notes than the Junior Notes.

16. Notice . The initial holder of this Junior Note hereby agrees, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to provide Ambac Assurance Corporation, as Management Services Provider for the Issuer, with a copy by email to the Rehabilitator, with prior written notice of any sale, disposition or other transfer of this Junior Note by such initial holder. Such written notice shall be provided prior to and as a condition to the consummation of the sale, disposition or other transfer by the initial holder, and shall contain the identity and address of the transferee and the date upon which the sale, disposition, or other transfer is effective.

 

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Exhibit 4.7

THIS 5.1% JUNIOR SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ RULE 144A ”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION 5 ”).

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.

ANY PERSON ACQUIRING THIS NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AS SET FORTH IN PARAGRAPH 4 HEREOF.

ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).


JUNIOR SURPLUS NOTE ISSUED BY THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION

 

JSN-04   $[xx,xxx,xxx]

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”) for value received, hereby promises to pay, subject to the Payment Restrictions (as defined below), to [XXXXXXXXXXXXXX], the principal sum of [XX,XXX,XXX] United States dollars ($xx,xxx,xxx) on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner of Insurance of the State of Wisconsin or any successor thereto (the “ Commissioner ”), from May 19, 2011 or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date this Note is scheduled to mature, commencing June 7, 2011 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of this Note shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 5 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the general account of Ambac Assurance Corporation, excluding, for the avoidance of doubt, any Excluded Order. “ Excluded Order ” means any order or approval of the type described in clause (ii) above entered or granted prior to the date hereof or any such order or approval entered or granted on or after the date hereof in the rehabilitation proceeding under Chapter 645 of the Wisconsin Statutes pending with respect to the Issuer as of the date hereof (the “ Proceeding ”), except to the extent that any such order or approval by its express terms provides for the acceleration of the maturity of this Note or otherwise designates the scheduled maturity date or other maturity date or date for the payment of principal of this Note. The payment by the Issuer of principal and interest on this Note shall be conditioned upon the payment restrictions set forth in paragraphs 2 and 3 of this Note (the “ Payment Restrictions ”). Interest on this Note shall be calculated on the basis of a 360-day year of twelve months of 30 days each. The holder of this Note hereby agrees, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to provide Ambac Assurance Corporation, as Management Services Provider for the Issuer, with prior written notice of any sale, disposition, or other transfer of any of this Note. Such written notice shall be provided prior to and as a condition to the consummation of the sale, disposition, or other transfer, and shall contain the identity and address of the transferee and the date upon which the sale, disposition, or other transfer is effective.

Payment of principal of and interest on this Note shall be further subject to the following conditions:

1. Payment . Payments of principal of this Note shall be made only against surrender of this Note; provided that in the case of payment of only a portion of principal, the Issuer shall


execute a new Note in principal amount equal to and in exchange for the remaining portion of the principal of the Note so surrendered. Payments of interest on this Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives notice to the Issuer, not less than 15 days (or such fewer days as the Issuer may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made, or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address as provided to the Issuer. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to this Note of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to this Note payable to such holder. In any case where the scheduled payment date or scheduled maturity date of this Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

2. Restrictions on Payment . Notwithstanding anything to the contrary set forth herein, any payment of principal of, interest on or any monies owing with respect to this Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated in the first paragraph hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder.

3. Subordination .

(a) The Issuer agrees, and each holder of this Note by accepting this Note agrees, that the indebtedness evidenced by this Note is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

 

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(b) No payment of interest on or principal of this Note shall be made until all existing and future Indebtedness, Policy Claims and Prior Claims have been paid in full, including upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property.

(c) If a distribution is made to a holder of this Note that, because of this paragraph 3, should not have been made to it, such holder shall pay such distribution over to the Issuer.

(d) This paragraph 3 defines the relative rights of a holder of this Note, on the one hand, and holders of any other claims, on the other hand. Nothing in this Note shall (i) impair, as between the Issuer and such holder, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on this Note in accordance with its terms; (ii) affect the relative rights of such holder and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or (iii) prevent any holder of this Note from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to such holder.

(e) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by this Note shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Note.

(f) As used herein, “ Indebtedness ” shall mean ( i ) all existing or future surplus notes of the Issuer; ( ii ) all existing or future indebtedness of the Issuer for borrowed money; ( iii ) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; ( iv ) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; ( v ) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, this Note would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as may be hereafter amended from time to time, “ Section 645.68 ”); and (vi) any surplus or contribution notes or similar obligations of Ambac Assurance Corporation, unless the terms thereof expressly state that such notes are pan passu with or subordinated to this Note. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, this Note shall not constitute Indebtedness. Any other junior surplus notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, this Note.

(g) As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the

 

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extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

(h) As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to this Note. Under Section 645.68 as currently in effect, such other claims include: ( i ) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the Issuer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; ( ii ) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii) other than the federal government; ( iii ) claims of the federal government not included under clause (ii) , interest at the legal rate compounded annually on all claims in the class under this clause (iii) , and on all claims of the federal government in the class under clause (ii) , from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; ( iv ) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; ( v ) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided , however , that if there are no claims of the federal government, the claims in clause ( v ) have priority over all claims under clauses (ii) to ( x ); ( vi ) claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii) ; (vii)  all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture, but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; ( viii ) claims based solely on judgments; ( ix ) interest at the legal rate compounded annually on all claims in the classes under clauses (i)  to ( viii ), except for claims of the federal government in the classes under clauses (ii)  and ( iii ), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and (x) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (ix).

4. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any entity whose underlying assets are considered to include “plan assets” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “plan assets” of a Plan or a plan subject to a Similar Law, may acquire this Note, unless the acquisition and holding of this Note is exempt under one or more of Prohibited Transaction

 

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Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Note shall constitute a representation by such person to the Issuer that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring this Note on behalf of or with “plan assets” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of this Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of this Note set forth in this paragraph 4 are in addition to those under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

5. Optional Redemption .

(a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, and the provisions of paragraph 3(b) , this Note is subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of this Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the principal amount to be redeemed plus any accrued but unpaid interest (including interest on interest). This Note may not be redeemed at the option of any holder hereof.

(b) Notices to redeem this Note shall be given to the holder of this Note in writing mailed, first-class postage prepaid, at such holder’s address as provided to the Issuer. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holder of this Note in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Notices to redeem this Note shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of this Note (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue if this Note is so redeemed. In addition, in the case of a partial redemption, such notice shall specify the portion of this Note called for redemption and the principal amount of this Note to remain outstanding after the redemption.

(c) If notice of redemption has been given in the manner set forth in paragraph 5(b) hereof, this Note (or portion thereof to be so redeemed) shall be payable in full on the date specified in such notice and upon presentation and surrender of this Note at the place or places specified in such notice, this Note (or portion thereof to be so redeemed) shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, this Note (or portion thereof to be so redeemed) shall cease to bear interest, and the only right of the holder with respect to this Note (or portion thereof to be so redeemed) shall be to receive payment of the Redemption Price.

 

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(d) Any Note which is to be redeemed only in part shall be surrendered to the Issuer with, if the Issuer so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute and deliver to such holder without service charge, a new note in principal amount equal to and in exchange for the unredeemed portion of the principal of the note so surrendered.

6. Remedies . A holder of this Note may enforce this Note only in the manner set forth below:

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), this Note will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the holder of this Note, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Note, in no event shall any holder of this Note be entitled to declare this Note to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves a payment of any interest on or principal of, or any redemption payment with respect to, this Note, in whole or in part, and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of any holder of this Note. In the event that the Issuer fails to perform any of its other obligations hereunder, the holder of this Note may pursue any available remedy to enforce the performance of any provision of this Note; provided , however , that such remedy shall in no event include the right to declare this Note immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law or the Payment Restrictions. A delay or omission by any holder of this Note in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Notwithstanding any other provision of this Note, the right of any holder of this Note to receive payment of the principal of and interest on this Note on or after the respective scheduled payment or scheduled maturity dates, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

7. No Recourse . No recourse under or upon any obligation, covenant, or agreement contained in this Note, or for any claim based thereon or otherwise in respect thereof, shall be

 

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had against Ambac Assurance Corporation or any shareholder, officer, or director, as such, past, present, or future, of the Issuer or of any successor corporation, either directly or through any trustee, receiver, or any other person; it being expressly understood that this Note is solely an obligation of the Issuer, and that any and all personal liability, and any and all rights and claims against Ambac Assurance Corporation or every such shareholder, officer, or director, as such, are hereby expressly waived and released by every holder hereof by the acceptance of this Note and as a part of the consideration for the issue hereof.

8. No Offsetting or Security Interest . The obligation of the Issuer under this Note may not be offset by the holder of this Note or be subject to recoupment by the holder of this Note with respect to any liability or obligation owed to the Issuer. No security agreement or interest, whether existing on the date of this Note or subsequently entered into, applies to the obligation under this note.

9. Amendments . No modification of this Note is effective and no other agreement may modify or supersede the terms of this Note, whether existing on the date of this Note or subsequently entered into, unless the modification or agreement is approved in writing by each of the Commissioner, the Issuer and the holder of this Note.

10. Governing Law . THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE ISSUER AND THE HOLDER OF THIS NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE. JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

11. Mutilation, Destruction, Loss, etc. In case this Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and deliver a new note of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest has been paid on this Note, in exchange and substitution for this Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Note. In the case where this Note is destroyed, lost or stolen, the applicant for a substituted note shall furnish to the Issuer such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of this Note, the applicant shall also furnish to the Issuer reasonable satisfactory evidence of the destruction, loss or theft of this Note and of the ownership thereof; provided , however , that if the registered holder hereof is, in the reasonable judgment of the Issuer, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new note in lieu of and substitution for this Note. Upon the issuance of any substituted note, the Issuer may require the payment by the registered holder thereof of a sum

 

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sufficient to cover fees and expenses connected therewith. In case this Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute note, pay or authorize the payment of the same (without surrender thereof except if this Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 11 as hereinabove set forth.

12. Severability . In case any provision in this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

Dated: December 17, 2013

 

THE SEGREGATED ACCOUNT OF AMBAC

ASSURANCE CORPORATION

By:  

Ambac Assurance Corporation, as Management

Services Provider for the Segregated Account

By:  

 

Name:   DAVID TRICK
Title:  

SENIOR MANAGING DIRECTOR

AND CHIEF FINANCIAL OFFICER

[ Ambac Signature Page to New Non-Reducing Junior Service Note ]

Exhibit 4.8

THIS 5.1% JUNIOR SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ RULE 144A ”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”).

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.

ANY PERSON ACQUIRING THIS NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AS SET FORTH IN PARAGRAPH 4 HEREOF.

ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).

THIS NOTE IS THE “BANKRUPTCY REDUCING SURPLUS NOTE” AS DEFINED IN THAT CERTAIN AMENDMENT AND EXCHANGE AGREEMENT DATED AS OF DECEMBER 16, 2013, BY AND AMONG [XXXXXXXX], AMBAC FINANCIAL GROUP, INC., AMBAC ASSURANCE CORPORATION, THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION AND [XXXXXXXXXXXXXXXXXXXXXX], AND IS SUBJECT TO AMENDMENT AND REDUCTION ON THE TERMS AND CONDITIONS PROVIDED HEREIN.


BANKRUPTCY REDUCING JUNIOR SURPLUS NOTE

ISSUED BY

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION

 

JSN-03   $x,xxx,xxx

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”) for value received, hereby promises to pay, subject to the Payment Restrictions (as defined below), to [XXXXXXXXXXXXXXXX] ., a principal sum of [XXXXXXXXXXXXXXXXXXXXXXXXX] United States dollars ($x,xxx,xxx) on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner of Insurance of the State of Wisconsin or any successor thereto (the “ Commissioner ”), from May 19, 2011 or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date this Note is scheduled to mature, commencing June 7, 2011 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of this Note shall include ( i ) the date, if any, fixed for redemption thereof in accordance with paragraph 5 hereof and ( ii ) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the general account of Ambac Assurance Corporation (“ AAC ”), excluding, for the avoidance of doubt, any Excluded Order. “ Excluded Order ” means any order or approval of the type described in clause (ii) above entered or granted prior to the date hereof or any such order or approval entered or granted on or after the date hereof in the rehabilitation proceeding under Chapter 645 of the Wisconsin Statutes pending with respect to the Issuer as of the date hereof (the “ Proceeding ”), except to the extent that any such order or approval by its express terms provides for the acceleration of the maturity of this Note or otherwise designates the scheduled maturity date or other maturity date or date for the payment of principal of this Note. The payment by the Issuer of principal and interest on this Note shall be conditioned upon the payment restrictions set forth in paragraphs 2 and 3 of this Note (the “ Payment Restrictions ”). Interest on this Note shall be calculated on the basis of a 360-day year of twelve months of 30 days each.

The holder of this Note hereby agrees, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to provide AAC, as Management Services Provider for the Issuer, with prior written notice of any sale, disposition, or other transfer of any of this Note. Such written notice shall be provided prior to and as a condition to the consummation of the sale, disposition, or other transfer, and shall contain the identity and address of the transferee and the date upon which the sale, disposition, or other transfer is effective.


Payment of principal of and interest on this Note shall be further subject to the following conditions:

1. Payment . Payments of principal of this Note shall be made only against surrender of this Note; provided that in the case of payment of only a portion of principal, the Issuer shall execute a new Note in principal amount equal to and in exchange for the remaining portion of the principal of the Note so surrendered. Payments of interest on this Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives notice to the Issuer, not less than 15 days (or such fewer days as the Issuer may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made, or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address as provided to the Issuer. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to this Note of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to this Note payable to such holder. In any case where the scheduled payment date or scheduled maturity date of this Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

2. Restrictions on Payment . Notwithstanding anything to the contrary set forth herein, any payment of principal of, interest on or any monies owing with respect to this Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated in the first paragraph hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder.

 

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3. Subordination .

(a) The Issuer agrees, and each holder of this Note by accepting this Note agrees, that the indebtedness evidenced by this Note is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

(b) No payment of interest on or principal of this Note shall be made until all existing and future Indebtedness, Policy Claims and Prior Claims have been paid in full, including upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property.

(c) If a distribution is made to a holder of this Note that, because of this paragraph 3 , should not have been made to it, such holder shall pay such distribution over to the Issuer.

(d) This paragraph 3 defines the relative rights of a holder of this Note, on the one hand, and holders of any other claims, on the other hand. Nothing in this Note shall ( i ) impair, as between the Issuer and such holder, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on this Note in accordance with its terms; ( ii ) affect the relative rights of such holder and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or ( iii ) prevent any holder of this Note from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to such holder.

(e) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by this Note shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Note.

(f) As used herein, “ Indebtedness ” shall mean ( i ) all existing or future surplus notes of the Issuer; ( ii ) all existing or future indebtedness of the Issuer for borrowed money; ( iii ) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; ( iv ) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; ( v ) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, this Note would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as may be hereafter amended from time to time, “ Section 645.68 ”); and ( vi ) any surplus or contribution notes or similar obligations of Ambac Assurance Corporation, unless the terms thereof expressly state that such notes are pari passu with or subordinated to this Note. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, this Note shall not constitute Indebtedness. Any other junior surplus notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, this Note.

 

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(g) As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the Issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

(h) As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to this Note. Under Section 645.68 as currently in effect, such other claims include: ( i ) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the Issuer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; ( ii ) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii) other than the federal government; ( iii ) claims of the federal government not included under clause (ii) , interest at the legal rate compounded annually on all claims in the class under this clause (iii) , and on all claims of the federal government in the class under clause (ii) , from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; ( iv ) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; ( v ) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided , however , that if there are no claims of the federal government, the claims in clause (v) have priority over all claims under clauses (ii) to ( x ); ( vi ) claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii) ; ( vii ) all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture, but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; ( viii ) claims based solely on judgments; ( ix ) interest at the legal rate compounded annually on all claims in the classes under clauses (i) to ( viii ), except for claims of the federal government in the classes under clauses (ii) and ( iii ), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and ( x ) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (ix) .

4. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any

 

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entity whose underlying assets are considered to include “plan assets” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “plan assets” of a Plan or a plan subject to a Similar Law, may acquire this Note, unless the acquisition and holding of this Note is exempt under one or more of Prohibited Transaction Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Note shall constitute a representation by such person to the Issuer that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring this Note on behalf of or with “plan assets” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of this Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of this Note set forth in this paragraph 4 are in addition to those under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

5. Optional Redemption .

(a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, and the provisions of paragraph 3(b), this Note is subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of this Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the principal amount to be redeemed plus any accrued but unpaid interest (including interest on interest). This Note may not be redeemed at the option of any holder hereof.

(b) Notices to redeem this Note shall be given to the holder of this Note in writing mailed, first-class postage prepaid, at such holder’s address as provided to the Issuer. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holder of this Note in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Notices to redeem this Note shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of this Note (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue if this Note is so redeemed. In addition, in the case of a partial redemption, such notice shall specify the portion of this Note called for redemption and the principal amount of this Note to remain outstanding after the redemption.

 

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(c) If notice of redemption has been given in the manner set forth in paragraph 5(b) hereof, this Note (or portion thereof to be so redeemed) shall be payable in full on the date specified in such notice and upon presentation and surrender of this Note at the place or places specified in such notice, this Note (or portion thereof to be so redeemed) shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, this Note (or portion thereof to be so redeemed) shall cease to bear interest, and the only right of the holder with respect to this Note (or portion thereof to be so redeemed) shall be to receive payment of the Redemption Price.

(d) Any Note which is to be redeemed only in part shall be surrendered to the Issuer with, if the Issuer so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute and deliver to such holder without service charge, a new note in principal amount equal to and in exchange for the unredeemed portion of the principal of the note so surrendered.

6. Remedies . A holder of this Note may enforce this Note only in the manner set forth below:

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), this Note will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the holder of this Note, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Note, in no event shall any holder of this Note be entitled to declare this Note to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves a payment of any interest on or principal of, or any redemption payment with respect to, this Note, in whole or in part, and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of any holder of this Note. In the event that the Issuer fails to perform any of its other obligations hereunder, the holder of this Note may pursue any available remedy to enforce the performance of any provision of this Note; provided , however , that such remedy shall in no event include the right to declare this Note immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law or the Payment Restrictions. A delay or omission by any holder of this Note in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Notwithstanding any other provision of this Note, the right of any holder of this Note to receive payment of the principal of and interest on this Note on or after the respective scheduled payment or scheduled maturity dates, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in

 

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each case subject to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

7. No Recourse . No recourse under or upon any obligation, covenant, or agreement contained in this Note, or for any claim based thereon or otherwise in respect thereof, shall be had against Ambac Assurance Corporation or any shareholder, officer, or director, as such, past, present, or future, of the Issuer or of any successor corporation, either directly or through any trustee, receiver, or any other person; it being expressly understood that this Note is solely an obligation of the Issuer, and that any and all personal liability, and any and all rights and claims against Ambac Assurance Corporation or every such shareholder, officer, or director, as such, are hereby expressly waived and released by every holder hereof by the acceptance of this Note and as a part of the consideration for the issue hereof.

8. No Offsetting or Security Interest . The obligation of the Issuer under this Note may not be offset by the holder of this Note or be subject to recoupment by the holder of this Note with respect to any liability or obligation owed to the Issuer. No security agreement or interest, whether existing on the date of this Note or subsequently entered into, applies to the obligation under this note.

9. Amendments . No modification of this Note is effective and no other agreement may modify or supersede the terms of this Note, whether existing on the date of this Note or subsequently entered into, unless the modification or agreement is approved in writing by each of the Commissioner, the Issuer and the holder of this Note.

10. Governing Law . THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE ISSUER AND THE HOLDER OF THIS NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

11. Mutilation, Destruction, Loss, etc. In case this Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and deliver a new note of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest has been paid on this Note, in exchange and substitution for this Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Note. In the case where this Note is destroyed, lost or stolen, the applicant for a substituted note shall furnish to the Issuer such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of

 

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this Note, the applicant shall also furnish to the Issuer reasonable satisfactory evidence of the destruction, loss or theft of this Note and of the ownership thereof; provided , however , that if the registered holder hereof is, in the reasonable judgment of the Issuer, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new note in lieu of and substitution for this Note. Upon the issuance of any substituted note, the Issuer may require the payment by the registered holder thereof of a sum sufficient to cover fees and expenses connected therewith. In case this Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute note, pay or authorize the payment of the same (without surrender thereof except if this Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 11 as hereinabove set forth.

12. Severability . In case any provision in this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

Dated: December 17, 2013

 

THE SEGREGATED ACCOUNT OF AMBAC

ASSURANCE CORPORATION

By:  

Ambac Assurance Corporation, as Management

Services Provider for the Segregated Account

By:  

 

Name:   DAVID TRICK
Title:  

SENIOR MANAGING DIRECTOR

AND CHIEF FINANCIAL OFFICER

[ Ambac Signature Page to Bankruptcy Reducing Junior Service Note ]

Exhibit 4.9

THIS 5.1% JUNIOR SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ RULE 144A ”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION 5 ”).

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.

ANY PERSON ACQUIRING THIS NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AS SET FORTH IN PARAGRAPH 4 HEREOF.

ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).

THIS NOTE IS THE “LEASE REDUCING SURPLUS NOTE” AS DEFINED IN THAT CERTAIN AMENDMENT AND EXCHANGE AGREEMENT, DATED AS OF DECEMBER 16, 2013, BY AND AMONG [                    ], [                    ], AMBAC FINANCIAL GROUP, INC., AMBAC ASSURANCE CORPORATION AND THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (THE “ EXCHANGE AGREEMENT ”), WHICH AMENDS THAT CERTAIN SETTLEMENT, DISCONTINUANCE AND RELEASE AGREEMENT, DATED AS OF MARCH 1, 2011, BY AND AMONG[                    ], AMBAC FINANCIAL GROUP, INC., AMBAC ASSURANCE CORPORATION AND THE


SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (THE “ SETTLEMENT AGREEMENT ”). THIS NOTE IS SUBJECT TO AMENDMENT AND REDUCTION ON THE TERMS AND CONDITIONS PROVIDED HEREIN, AND ALL CAPITALIZED TERMS USED BUT NOT DEFINED IN THIS NOTE SHALL HAVE THE MEANINGS SET FORTH IN THE SETTLEMENT AGREEMENT OR THE EXCHANGE AGREEMENT, AS APPLICABLE.


LEASE REDUCING JUNIOR SURPLUS NOTE

ISSUED BY

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION

 

JSN-02   $[xx,xxx,xxx]

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”) for value received, hereby promises to pay, subject to the Payment Restrictions (as defined below), to [xxxxxxxxxxxxxxxxx] (“ OSS ”), a principal sum of [XXXXXXXXXXXXXXXXXXXXXXXX] United States dollars ($xx,xxx,xxx.xx), subject to amendment and reduction as provided below, on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner of Insurance of the State of Wisconsin or any successor thereto (the “ Commissioner ”), from May 19, 2011 or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date this Note is scheduled to mature, commencing June 7, 2011 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of this Note shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 5 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the general account of Ambac Assurance Corporation (“ AAC ”), excluding, for the avoidance of doubt, any Excluded Order. “ Excluded Order ” means any order or approval of the type described in clause (ii) above entered or granted prior to the date hereof or any such order or approval entered or granted on or after the date hereof in the rehabilitation proceeding under Chapter 645 of the Wisconsin Statutes pending with respect to the Issuer as of the date hereof (the “ Proceeding ”), except to the extent that any such order or approval by its express terms provides for the acceleration of the maturity of this Note or otherwise designates the scheduled maturity date or other maturity date or date for the payment of principal of this Note. The payment by the Issuer of principal and interest on this Note shall be conditioned upon the payment restrictions set forth in paragraphs 2 and 3 of this Note (the “ Payment Restrictions ”). Interest on this Note shall be calculated on the basis of a 360-day year of twelve months of 30 days each.

The holder of this Note hereby agrees, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to provide AAC, as Management Services Provider for the Issuer, with prior written notice of any sale, disposition, or other transfer of any of this Note. Such written notice shall be provided prior to and as a condition to the consummation of the sale, disposition, or other transfer, and shall contain the identity and address of the transferee and the date upon which the sale, disposition, or other transfer is effective.


This Note is the “ Lease Reducing Surplus Note ” as defined in the Exchange Agreement, and this Note shall be subject to amendment, and the principal amount hereof shall be subject to automatic reduction, in each case on the terms and conditions provided below:

 

  i. To the extent that rent is paid pursuant to the New Headquarters Lease from and after the end of the Initial Term (the “ Extension Term Rent Payments ”), the principal amount of this Note shall be reduced automatically by an amount equal to any Extension Term Rent Payments discounted from the date of payment thereof to May 19, 2011 at the rate of 7% per annum (the sum of all such Extension Term Rent Payments, as discounted in accordance with this paragraph (i)  being the “ Extension Term Reduction Amount ”), and solely in respect of such Extension Term Reduction Amount, any and all interest accrued up to (and including) the date of such reduction shall automatically be extinguished without any payment or further action by any party and no interest shall be due in respect of such Extension Term Reduction Amount.

 

  ii. The initial principal amount of this Note is based on a maximum potential Extension Term Reduction Amount of $[xx,xxx,xxx] (the “ Extension Term Reduction Allocation ”). The Extension Term Reduction Allocation shall be subject to adjustment, as set forth in this Note, consistent, where applicable, with the methodology and calculations set forth on Exhibit C of the Settlement Agreement (solely to the extent such exhibit relates to the New Headquarters Lease).

 

  iii. Without prejudice to paragraph (i)  above, the Extension Term Reduction Allocation shall be reduced by the Extension Term Excess Amount (as defined below) following specific written requests therefor from OSS ( provided that OSS is, at the time of the request, the holder of this Note), which requests may be made solely following each of (a) the date the amount of space of the Existing Premises, if any, to be leased by AAC after the Initial Term is determined in accordance with the New Headquarters Lease and such determination causes the Extension Term Reduction Allocation to exceed the maximum potential Extension Term Reduction Amount (such excess amount, as agreed between OSS and the Issuer, arising at any time for any reason, being the “ Extension Term Excess Amount ”), and (b) any other date on which there shall exist an Extension Term Excess Amount which has not been reflected in an adjustment pursuant to this Note, all of which adjustments pursuant to (a) and (b) shall not occur more than once in the aggregate in any consecutive twelve-month period.

 

  iv. The Issuer further agrees, following a specific written request therefor from OSS ( provided that OSS is, at the time of the request, the holder of this Note), either to (a) enter into an amendment to this Note to eliminate the provisions requiring reduction to the principal amount herein, or (b) exchange this Note for a junior surplus note in the same outstanding principal amount as this Note as of such date of exchange in the same form as the New Non-Reducing Surplus Note, provided that as of the date of both such request from OSS and amendment or exchange, there shall be no further Extension Term Rent Payments due or payable under the New Headquarters Lease.

 

2


Payment of principal of and interest on this Note shall be further subject to the following conditions:

1. Payment . Payments of principal of this Note shall be made only against surrender of this Note; provided that in the case of payment of only a portion of principal, the Issuer shall execute a new Note in principal amount equal to and in exchange for the remaining portion of the principal of the Note so surrendered. Payments of interest on this Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives notice to the Issuer, not less than 15 days (or such fewer days as the Issuer may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made, or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address as provided to the Issuer. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to this Note of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to this Note payable to such holder. In any case where the scheduled payment date or scheduled maturity date of this Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

2. Restrictions on Payment . Notwithstanding anything to the contrary set forth herein, any payment of principal of, interest on or any monies owing with respect to this Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated in the first paragraph hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder.

 

3


3. Subordination .

(a) The Issuer agrees, and each holder of this Note by accepting this Note agrees, that the indebtedness evidenced by this Note is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

(b) No payment of interest on or principal of this Note shall be made until all existing and future Indebtedness, Policy Claims and Prior Claims have been paid in full, including upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property.

(c) If a distribution is made to a holder of this Note that, because of this paragraph 3 , should not have been made to it, such holder shall pay such distribution over to the Issuer.

(d) This paragraph 3 defines the relative rights of a holder of this Note, on the one hand, and holders of any other claims, on the other hand. Nothing in this Note shall ( i ) impair, as between the Issuer and such holder, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on this Note in accordance with its terms; ( ii ) affect the relative rights of such holder and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or ( iii ) prevent any holder of this Note from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to such holder.

(e) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by this Note shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Note.

(f) As used herein, “ Indebtedness ” shall mean ( i ) all existing or future surplus notes of the Issuer; ( ii ) all existing or future indebtedness of the Issuer for borrowed money; ( iii ) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; ( iv ) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; ( v ) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, this Note would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as may be hereafter amended from time to time, “ Section 645.68 ”); and ( vi ) any surplus or contribution notes or similar obligations of Ambac Assurance Corporation, unless the terms thereof expressly state that such notes are pari passu with or subordinated to this Note. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, this Note shall not constitute Indebtedness. Any other junior surplus notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, this Note.

 

4


(g) As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the Issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

(h) As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to this Note. Under Section 645.68 as currently in effect, such other claims include: ( i ) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the Issuer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; ( ii ) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii) other than the federal government; ( iii ) claims of the federal government not included under clause (ii) , interest at the legal rate compounded annually on all claims in the class under this clause (iii) , and on all claims of the federal government in the class under clause (ii) , from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; ( iv ) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; ( v ) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided , however , that if there are no claims of the federal government, the claims in clause (v) have priority over all claims under clauses (ii) to ( x ); ( vi ) claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii) ; ( vii ) all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture, but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; ( viii ) claims based solely on judgments; ( ix ) interest at the legal rate compounded annually on all claims in the classes under clauses (i) to ( viii ), except for claims of the federal government in the classes under clauses (ii) and ( iii ), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and ( x ) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (ix) .

4. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any

 

5


entity whose underlying assets are considered to include “plan assets” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “plan assets” of a Plan or a plan subject to a Similar Law, may acquire this Note, unless the acquisition and holding of this Note is exempt under one or more of Prohibited Transaction Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Note shall constitute a representation by such person to the Issuer that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring this Note on behalf of or with “plan assets” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of this Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of this Note set forth in this paragraph 4 are in addition to those under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

5. Optional Redemption .

(a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, and the provisions of paragraph 3(b) , this Note is subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of this Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the principal amount to be redeemed plus any accrued but unpaid interest (including interest on interest). This Note may not be redeemed at the option of any holder hereof.

(b) Notices to redeem this Note shall be given to the holder of this Note in writing mailed, first-class postage prepaid, at such holder’s address as provided to the Issuer. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holder of this Note in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Notices to redeem this Note shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of this Note (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in said notice, and that on and after said date interest thereon will cease to accrue if this Note is so redeemed. In addition, in the case of a partial redemption, such notice shall specify the portion of this Note called for redemption and the principal amount of this Note to remain outstanding after the redemption.

 

6


(c) If notice of redemption has been given in the manner set forth in paragraph 5(b) hereof, this Note (or portion thereof to be so redeemed) shall be payable in full on the date specified in such notice and upon presentation and surrender of this Note at the place or places specified in such notice, this Note (or portion thereof to be so redeemed) shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, this Note (or portion thereof to be so redeemed) shall cease to bear interest, and the only right of the holder with respect to this Note (or portion thereof to be so redeemed) shall be to receive payment of the Redemption Price.

(d) Any Note which is to be redeemed only in part shall be surrendered to the Issuer with, if the Issuer so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute and deliver to such holder without service charge, a new note in principal amount equal to and in exchange for the unredeemed portion of the principal of the note so surrendered.

6. Remedies . A holder of this Note may enforce this Note only in the manner set forth below.

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), this Note will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the holder of this Note, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Note, in no event shall any holder of this Note be entitled to declare this Note to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves a payment of any interest on or principal of, or any redemption payment with respect to, this Note, in whole or in part, and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of any holder of this Note. In the event that the Issuer fails to perform any of its other obligations hereunder, the holder of this Note may pursue any available remedy to enforce the performance of any provision of this Note; provided , however , that such remedy shall in no event include the right to declare this Note immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law or the Payment Restrictions. A delay or omission by any holder of this Note in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Notwithstanding any other provision of this Note, the right of any holder of this Note to receive payment of the principal of and interest on this Note on or after the respective scheduled payment or scheduled maturity dates, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in

 

7


each case subject to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

7. No Recourse . No recourse under or upon any obligation, covenant, or agreement contained in this Note, or for any claim based thereon or otherwise in respect thereof, shall be had against Ambac Assurance Corporation or any shareholder, officer, or director, as such, past, present, or future, of the Issuer or of any successor corporation, either directly or through any trustee, receiver, or any other person; it being expressly understood that this Note is solely an obligation of the Issuer, and that any and all personal liability, and any and all rights and claims against Ambac Assurance Corporation or every such shareholder, officer, or director, as such, are hereby expressly waived and released by every holder hereof by the acceptance of this Note and as a part of the consideration for the issue hereof.

8. No Offsetting or Security Interest . The obligation of the Issuer under this Note may not be offset by the holder of this Note or be subject to recoupment by the holder of this Note with respect to any liability or obligation owed to the Issuer. No security agreement or interest, whether existing on the date of this Note or subsequently entered into, applies to the obligation under this Note.

9. Amendments . No modification of this Note is effective and no other agreement may modify or supersede the terms of this Note, whether existing on the date of this Note or subsequently entered into, unless the modification or agreement is approved in writing by each of the Commissioner, the Issuer and the holder of this Note.

10. Governing Law . THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE ISSUER AND THE HOLDER OF THIS NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

11. Mutilation, Destruction, Loss, etc. In case this Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and deliver a new note of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest has been paid on this Note, in exchange and substitution for this Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Note. In the case where this Note is destroyed, lost or stolen, the applicant for a substituted note shall furnish to the Issuer such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of

 

8


this Note, the applicant shall also furnish to the Issuer reasonable satisfactory evidence of the destruction, loss or theft of this Note and of the ownership thereof; provided , however , that if the registered holder hereof is, in the reasonable judgment of the Issuer, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new note in lieu of and substitution for this Note. Upon the issuance of any substituted note, the Issuer may require the payment by the registered holder thereof of a sum sufficient to cover fees and expenses connected therewith. In case this Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute note, pay or authorize the payment of the same (without surrender thereof except if this Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 11 as hereinabove set forth.

12. Severability . In case any provision in this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

9


IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

Dated: December 17, 2013

 

THE SEGREGATED ACCOUNT OF AMBAC

ASSURANCE CORPORATION

By:   Ambac Assurance Corporation, as Management Services Provider for the Segregated Account
By:  

 

Name:   DAVID TRICK
Title:  

SENIOR MANAGING DIRECTOR

AND CHIEF FINANCIAL OFFICER

[ Ambac Signature Page to Lease Reducing Junior Service Note ]

Exhibit 4.10

 

 

FISCAL AGENCY AGREEMENT

between

THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION

Issuer

and

THE BANK OF NEW YORK MELLON

Fiscal Agent

Dated as of July 19, 2010

5.1% Surplus Notes scheduled to mature on June 7, 2020

 

 


Table of Contents

 

              Page  

1.

  The Notes      1   
  (a)    General      1   
  (b)    Forms of Notes      1   
  (c)    Book-Entry Provisions      3   
  (d)    Persons Deemed Owners      4   
  (e)    Denominations      4   

2.

  Fiscal Agent; Other Agents      4   

3.

  Authentication      5   

4.

  Payment and Cancellation      5   
  (a)    Payment      5   
  (b)    Cancellation      7   

5.

  Global Notes      7   
  (a)    Exchange for Certificated Notes      7   
  (b)    Notes Issued in Exchange for Global Notes      7   
  (c)    Authorization by Registered Holder      8   
  (d)    Certificated Notes Made Available      8   

6.

  Registration, Transfer and Exchange of Notes      8   
  (a)    General      8   
  (b)    Transfers of Restricted Certificated Notes      8   
  (c)    Transfers of Global Notes and Interests Therein      10   
  (d)    Registration of Transfers and Exchanges      13   
  (e)    Information from Transfer Agent      13   
  (f)    Periods of Non-registration      13   
  (g)    Legend      13   
  (h)    Repurchases by Issuer      14   

7.

  Redemption      14   
  (a)    Notice to Fiscal Agent      14   
  (b)    Selection of Notes to be Redeemed      14   
  (c)    Notice of Redemption; Effect of Notice      14   
  (d)    Notes Redeemed in Part      14   

8.

  Delivery of Certain Information      15   

9.

  Conditions of Fiscal Agent’s Obligations      15   
  (a)    Compensation and Indemnity      15   
  (b)    Agency      15   
  (c)    Advice of Counsel      16   
  (d)    Reliance      16   
  (e)    Interest in Notes, etc      16   
  (f)    Non-Liability for Interest      16   
  (g)    Certifications      16   

 

i


Table of Contents

(continued)

 

              Page  
  (h)    No Implied Obligations      16   
  (i)    Enforceability of Rights      17   
  (j)    Agents      17   
  (k)    Damages      17   
  (l)    Recitals      17   
  (m)    Occurrences Beyond Reasonable Control      17   
  (n)    Default of the Issuer      17   
10.   Resignation, Removal and Appointment of Successor      18   
  (a)    Fiscal Agent and Paying Agent      18   
  (b)    Resignation and Removal      18   
  (c)    Successors      18   
  (d)    Acknowledgement      19   
  (e)    Merger, Consolidation, etc      19   
11.   Meetings and Amendments      19   
  (a)    Calling of Meeting, Notice and Quorum      19   
  (b)    Approval      20   
  (c)    Binding Nature of Amendments, Notices, Notations, etc      22   
  (d)    “Outstanding” Defined      22   
12.   Remedies      23   
  (a)    Acceleration of Maturity      23   
  (b)    Failure to Pay or Perform Other Obligations      23   
  (c)    Rights of Holders      24   
13.   Governing Law      24   
14.   Notices      24   
15.   Severability      25   
16.   Headings      25   
17.   Counterparts      25   
18.   Interpretation      25   
19.   Waiver of Jury Trial      25   
20.   USA Patriot Act      25   

 

ii


Index of Defined Terms

 

EXHIBIT A   FORM OF CERTIFICATED NOTE      A-1   
EXHIBIT B   FORM OF GLOBAL NOTE      B-1   
EXHIBIT C-1   FORM OF CERTIFICATE FOR EXCHANGE OF RESTRICTED CERTIFICATED NOTE      C-1-1   
EXHIBIT C-2   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED CERTIFICATED NOTE TO PERMANENT REGULATION S GLOBAL NOTE      C-2-1   
EXHIBIT C-3   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED CERTIFICATED NOTE TO RESTRICTED GLOBAL SECURITY      C-3-1   
EXHIBIT D   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED GLOBAL NOTE TO TEMPORARY REGULATION S GLOBAL NOTE      D-1   
EXHIBIT E   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED GLOBAL NOTE TO PERMANENT REGULATION S GLOBAL NOTE      E-1   
EXHIBIT F   FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM TEMPORARY REGULATION S GLOBAL NOTE TO RESTRICTED GLOBAL NOTE      F-1   
EXHIBIT G   FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP      G-1   
EXHIBIT H   FORM OF RULE 144 CERTIFICATE      H-1   

 

iii


Index of Defined Terms

 

Act

     1   

Affiliate

     23   

Agent Members

     4   

Aggregate Excess of Loss Reinsurance Agreement

     6   

Agreement

     1   

Applicable Procedures

     11   

Authorized Officers

     3   

Certificate of Beneficial Ownership

     2   

Certificated Notes

     2   

Clearstream Banking

     2   

Commissioner

     6   

Corporate Trust Office

     4   

DTC

     3   

Euroclear

     2   

Exchange Act

     7   

Excluded Order

     1   

Fiscal Agent

     4   

General Account

     1   

Global Notes

     3   

Institutional Accredited Investor

     1   

Issuer

     1   

Legend

     13   

Notes

     1   

Outstanding

     22   

Paying Agent

     5   

Paying Agents

     5   

Payment Restrictions

     1   

Permanent Regulation S Global Note

     2   

Person

     23   

Proceeding

     1   

registered holders

     6   

Regulation S

     2   

Rehabilitator

     2   

Restricted Certificated Notes

     8   

Restricted Global Notes

     1   

Restricted Note

     13   

Restricted Period

     2   

Rule 144A

     9   

Rule 144A Information

     15   

Scheduled Maturity Date

     1   

Section 645.68

     12   

Secured Note

     6   

Temporary Regulation S Global Note

     2   

Transfer Agent

     5   

Transfer Agents

     5   

U.S. Depositary

     1   

USA Patriot Act

     25   
 

 

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FISCAL AGENCY AGREEMENT (this “ Agreement ”), dated as of July 19, 2010, between THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION (and any successor in interest thereto, the “ Issuer ”) and THE BANK OF NEW YORK MELLON, a New York banking corporation, as Fiscal Agent (as defined herein). The Exhibits attached hereto shall be deemed to be a part of this Agreement.

1. The Notes .

(a) General . The aggregate principal amount of 5.1% Surplus Notes of the Issuer (the “ Notes ”) that may be authenticated and delivered under this Agreement from time to time is unlimited. Claims based upon the Notes will rank below all Indebtedness, Policy Claims and Prior Claims (each as defined in the Notes). The payment by the Issuer of principal and interest on the Notes shall be conditioned upon the payment restrictions set forth in paragraphs 4 and 10 of the Notes (the “ Payment Restrictions ”). The Notes are scheduled to mature on June 7, 2020 (the “ Scheduled Maturity Date ”). Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of the Notes shall include ( i ) the date, if any, fixed for redemption in accordance with paragraph 15 of the Notes and ( ii ) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the general account of Ambac Assurance Corporation (the “ General Account ”), excluding, for the avoidance of doubt, any Excluded Order. “ Excluded Order ” means any order or approval of the type described in clause (ii)  above entered or granted prior to the date hereof or any such order or approval entered or granted on or after the date hereof in the rehabilitation proceeding under Chapter 645 of the Wisconsin Statutes pending with respect to the Issuer as of the date hereof (the “ Proceeding ”), except to the extent that any such order or approval by its express terms provides for the acceleration of the maturity of the Notes or otherwise designates the scheduled maturity date or other maturity date or date for the payment of principal of the Notes.

(b) Forms of Notes . The Notes are being issued by the Issuer from time to time as set forth below.

(i) Notes offered and sold to “institutional accredited investors” (each, an “ Institutional Accredited Investor ”) within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “ Act ”), shall be issued in the form of Global Notes (as defined below) (the “Restricted Global Notes”) in definitive, fully registered form without interest coupons, substantially in the form attached as Exhibit B hereto, with such applicable legends as are provided for in Exhibit B . Each such Global Note shall be registered in the name of a nominee of The Depository Trust Company (the “ U.S. Depositary ”) and deposited with the Fiscal Agent, at its New York City office, as custodian for the U.S. Depositary, duly executed by the Issuer and authenticated by the Fiscal Agent as hereinafter provided. The aggregate principal amount of each Restricted Global Note may from time to time be increased or decreased by adjustments made on the records of the Fiscal Agent, as custodian for the U.S. Depositary, as hereinafter provided.

(ii) (A) Notes offered and sold in reliance on Regulation S (“ Regulation S ”) under the Act shall be issued initially in the form of temporary Global


Notes in definitive, fully registered form without interest coupons, substantially in the form of Note attached as Exhibit B hereto, with such applicable legends as are provided for in Exhibit B . Each such Global Note shall be registered in the name of a nominee of the U.S. Depositary and deposited with the Fiscal Agent, at its New York City office, as custodian for the U.S. Depositary, duly executed by the Issuer and authenticated by the Fiscal Agent as hereinafter provided, for credit to the respective accounts of Euroclear Bank S.A./N.V. (“ Euroclear ”) or Clearstream Banking, société anonyme , Luxembourg (“ Clearstream Banking ”). Until such time as the Restricted Period (as defined below) shall have terminated, each such Global Note shall be referred to herein as a “ Temporary Regulation S Global Note .” After the Restricted Period shall have terminated, interests in each such Global Note shall be exchangeable for equivalent interests in a like Global Note, referred to herein as a “ Permanent Regulation S Global Note .” The aggregate principal amount of each Temporary Regulation S Global Note and each Permanent Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Fiscal Agent, as custodian for the U.S. Depositary, as hereinafter provided. As used herein, the term “ Restricted Period ” means the period of 40 consecutive days beginning on and including the issue date of the Temporary Regulation S Global Note.

(B) An owner of a beneficial interest in a Temporary Regulation S Global Note (or a person acting on behalf of such an owner) may provide to Euroclear or Clearstream Banking, as applicable, (and Euroclear or Clearstream Banking will accept) a duly completed certificate in substantially the form of Exhibit G (a “ Certificate of Beneficial Ownership ”) at any time after the termination of the Restricted Period (it being understood that Euroclear or Clearstream Banking, as applicable, will not accept any such certificate during the Restricted Period). Promptly after receipt by the Fiscal Agent of a Certificate of Beneficial Ownership from the U.S. Depositary on behalf of Euroclear or Clearstream Banking, as applicable (or other appropriate confirmation to such effect in accordance with the Applicable Procedures (as defined below)), with respect to such a beneficial interest, the Fiscal Agent will cause such beneficial interest to be exchanged for an equivalent beneficial interest in a Permanent Regulation S Global Note, and will (x) permanently reduce the principal amount of such Temporary Regulation S Global Note by the amount of the beneficial interest certified in such Certificate of Beneficial Ownership and (y) increase the principal amount of such Permanent Regulation S Global Note by the amount of the beneficial interest certified in such Certificate of Beneficial Ownership, in each case subject to the Applicable Procedures.

(iii) Notwithstanding the other provisions of this Section 1(b), Notes may be issued as certificated securities in definitive, fully registered form without interest coupons, substantially in the form attached as Exhibit A hereto, with such applicable legends as are provided in Exhibit A (“ Certificated Notes ”).

All Notes shall be issued substantially in the form attached hereto as either Exhibit A or B , as applicable, and shall be executed manually, in facsimile or portable document format on behalf of the Issuer by any of, (i) while the Issuer is subject to the Proceeding, the rehabilitator of the Issuer under the Proceeding appointed by the rehabilitation court and such rehabilitator’s successors (the “ Rehabilitator ”) or a designee of such Rehabilitator (including any management

 

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service provider) and, (ii) while the Issuer is not subject to the Proceeding, the Issuer’s Chief Executive Officer, President, Executive Vice President or Chief Financial Officer (the persons specified in the foregoing (i) and (ii), as applicable, the “ Authorized Officers ”), notwithstanding that such officers, or any of them, shall have ceased, for any reason, to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of any such Note. The Notes also may have such (A) additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement and (B) letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with this Agreement, any law or with any rules made pursuant thereto or with the rules of any securities exchange, insurance regulatory or other governmental agency or depositary therefor or as may, consistently herewith, be determined by the Authorized Officer executing such Notes, in the case of both (A) and (B), as conclusively evidenced by the proper execution of such Notes by any such Authorized Officer. All Notes shall be otherwise identical except as to denomination and as otherwise provided herein.

(c) Book-Entry Provisions . This Section 1(c) shall apply to all Notes evidencing all or part of the Notes that are registered in the name of the U.S. Depositary or a nominee thereof (“ Global Notes ”).

The Issuer shall execute and the Fiscal Agent shall, in accordance with this Section 1(c) and with Section 3 , authenticate and deliver one or more Global Notes as required to be issued pursuant to Section 1(b) hereof, which (A) shall be registered in the name of the U.S. Depositary or its nominee, (B) shall be retained by the Fiscal Agent as custodian for the U.S. Depositary and (C) shall bear legends substantially to the following effect:

“UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“ DTC ”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

“THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE FISCAL AGENCY AGREEMENT, AND MAY NOT BE

 

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TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 6(c) OF THE FISCAL AGENCY AGREEMENT. BENEFICIAL INTERESTS IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 6(c) OF THE FISCAL AGENCY AGREEMENT.”

Neither any members of, or participants in, the U.S. Depositary (“ Agent Members ”) nor any other persons on whose behalf Agent Members may act (including, without limitation, Euroclear and Clearstream Banking and account holders and participants therein) shall have any rights under this Fiscal Agency Agreement with respect to any Global Note registered in the name of the U.S. Depositary or any nominee thereof, or under any such Global Note, and the U.S. Depositary or such nominee, as the case may be, may be treated by the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Fiscal Agent or any agent of the Issuer or the Fiscal Agent from giving effect to any written certification, proxy or other authorization furnished by the U.S. Depositary or such nominee, as the case may be, or impair, as between the U.S. Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such persons governing the exercise of the rights of a holder of any Note.

(d) Persons Deemed Owners . The Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name a Note is registered as the absolute owner and holder of such Note for all purposes whatsoever, and none of the Issuer, the Fiscal Agent and any agent of any of them shall be affected by notice to the contrary. Any reference herein and in any Note to the term “holder” of a Note or “registered holder” shall be to the person in whose name a Note is registered in the register maintained for such purposes pursuant to Section 6 hereof.

(e) Denominations . The Notes shall be issuable in minimum denominations of $1 and integral multiples of $1 in excess thereof.

2. Fiscal Agent; Other Agents . The Issuer hereby appoints The Bank of New York Mellon, acting through its corporate trust office at 101 Barclay Street, Floor 8W, New York, New York 10286, Attention: Corporate Finance Group (the “ Corporate Trust Office ”), as fiscal agent of the Issuer in respect of the Notes upon the terms and subject to the conditions herein set forth, and The Bank of New York Mellon hereby accepts such appointment. The Bank of New York Mellon, and any successor or successors as such fiscal agent qualified and appointed in accordance with Section 10 hereof, are herein called the “ Fiscal Agent .” The Fiscal Agent shall have the powers and authority granted to and conferred upon it in the Notes and hereby and such further powers and authority to act on behalf of the Issuer as may be mutually agreed upon by the Issuer and the Fiscal Agent. The Fiscal Agent shall keep a copy of this Agreement available for inspection during normal business hours at its Corporate Trust Office. The Fiscal Agent or any Paying Agent (as defined below) shall also act as Transfer Agent (as defined below). All of the terms and provisions with respect to such powers and authority contained in the Notes are subject to and governed by the terms and provisions hereof.

 

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The Issuer may, at its discretion, appoint one or more agents (a “ Paying Agent ” or “ Paying Agents ”) for the payment, to the extent permitted under the Payment Restrictions, of the principal of and any interest on the Notes, and one or more agents (a “ Transfer Agent ” or “ Transfer Agents ”) for the transfer and exchange of Notes, at such place or places as the Issuer may determine; provided , however , that the Issuer shall at all times maintain a Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New York (which Paying Agent and Transfer Agent may be the Fiscal Agent). The Issuer hereby initially appoints the Fiscal Agent at its Corporate Trust Office as Paying Agent, Transfer Agent, authenticating agent and securities registrar, and the Fiscal Agent hereby accepts such appointments. The Transfer Agent shall act as a securities registrar and there shall be kept at the office of the Transfer Agent a register in which, subject to such reasonable regulations as the Issuer may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers or exchanges of Notes. The Issuer shall promptly notify the Fiscal Agent of the name and address of any other Paying Agent or Transfer Agent appointed by it and of the country or countries in which a Paying Agent or Transfer Agent may act in that capacity, and will notify the Fiscal Agent of the resignation or termination of any such Paying Agent or Transfer Agent. Subject to the provisions of Section 10(c) hereof, the Issuer may vary or terminate the appointment of any such Paying Agent or Transfer Agent at any time and from time to time upon giving not less than 90 days’ notice to such Paying Agent or Transfer Agent, as the case may be, and to the Fiscal Agent. The Issuer shall cause written notice of any resignation, termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent will act to be provided to holders of Notes as soon as reasonably practicable following the Issuer’s receipt of notice thereof.

3. Authentication . The Fiscal Agent is authorized from time to time, upon receipt of Notes duly executed on behalf of the Issuer and in accordance with the written order or orders of the Issuer signed on its behalf by an Authorized Officer, which order or orders shall include confirmation that all conditions precedent to the authentication of such Notes have been met and that authentication of such Notes is authorized and permitted by this Agreement, to manually authenticate and deliver Notes in accordance with the provisions therein and hereinafter set forth.

The Fiscal Agent may, with the consent of the Issuer, appoint by an instrument or instruments in writing, one or more agents (which may include itself) for the authentication of the Notes and, with such consent, vary or terminate any such appointment upon written notice and approve any change in the office through which any authenticating agent acts. The Issuer (by written notice to the Fiscal Agent and the authenticating agent whose appointment is to be terminated) may also terminate any such appointment at any time. The Fiscal Agent hereby agrees to solicit written acceptances from the entities concerned (in form and substance satisfactory to the Issuer) of such appointments. In its acceptance of such appointment, each such authenticating agent shall agree to act as an authenticating agent pursuant to the terms and conditions of this Agreement.

4. Payment and Cancellation .

(a) Payment . For so long as the Fiscal Agent is acting as a Paying Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, or such other Paying Agent if the Fiscal Agent is no longer acting as a Paying Agent, in immediately available

 

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funds on or prior to 11:00 a.m., New York time, on each date on which a payment of principal of or any interest on the Notes shall be payable, as set forth in the text of the Notes, such amounts, in U.S. dollars, as are necessary (with any amounts then held by the Fiscal Agent and available for the purpose) to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on the Notes in the manner, at the times and for the purposes set forth herein and in the text of said Notes; provided that the Issuer will not provide any such funds to the Fiscal Agent prior to such time as the relevant payment of principal or interest is approved by the Commissioner of Insurance of the State of Wisconsin or any successor thereto (the “ Commissioner ”). Permitted payments of principal of or any interest on the Notes to the persons (the “ registered holders ”) in whose names such Notes are registered on the register maintained pursuant to Section 6 hereof at the close of business on the record dates designated in the text of the Notes will be made (i) by wire transfer of immediately available funds to an account maintained by the payee with a bank as specified in the text of the Notes if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of the account to which payment is to be made or, (ii) if no such notice is given, by mailing a check to the payee at the address reflected in the register maintained pursuant to Section 6 hereof. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Notes shall remain in effect with respect to any future payments with respect to such Notes payable to such holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 hereof for the payment, subject to the Payment Restrictions, from funds so paid by the Issuer of the principal of and any interest on the Notes in the manner, at the times and for the purposes set forth herein and in the text of said Notes. Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent (other than the Fiscal Agent) funds for the payment, subject to the Payment Restrictions, of the principal thereof and interest payable thereon under an agreement with respect to such funds containing substantially the same terms and conditions set forth in this Section 4(a) and in Section 9(b) hereof; and the Fiscal Agent shall have no responsibility with respect to any funds so provided by the Issuer to any such Paying Agent. To the extent that the Fiscal Agent is not acting as Paying Agent, references to the Fiscal Agent in this Section 4(a) shall include the Paying Agent in such capacity.

Funds received by the Paying Agent will be applied first to the amounts then due to the Paying Agent, Transfer Agent and Fiscal Agent under Section 9(a) and then to the principal of and interest on the Notes.

Payments of principal of and interest on the Notes shall be made in the manner set forth in the Notes, including the Payment Restrictions set forth therein.

For any amounts due and payable under the Notes that are approved by the Commissioner in accordance with this Section 4(a) and which are due and payable under the Secured Note dated as of March 24, 2010, from Ambac Assurance Corporation to the Issuer (the “ Secured Note ”) or the Aggregate Excess of Loss Reinsurance Agreement, dated as of March 24, 2010, by and between Ambac Assurance Corporation and the Issuer (the “ Aggregate Excess of Loss Reinsurance Agreement ”), as the case may be, the Issuer undertakes to demand payment under the Secured Note or the Aggregate Excess of Loss Reinsurance Agreement, as the case may be, against Ambac Assurance Corporation.

 

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(b) Cancellation . All Notes delivered to the Fiscal Agent (or any other agent appointed by the Issuer pursuant to Section 2 hereof) for payment, redemption or registration of transfer or exchange as provided herein or in the Notes shall be marked “cancelled” and, in the case of any other such agent, forwarded to the Fiscal Agent. All such Notes shall be disposed of by the Fiscal Agent in accordance with its customary procedures or by such other person as may be jointly designated by the Issuer and the Fiscal Agent, which, upon the Issuer’s written instructions, shall thereupon furnish certificates of such disposition to the Issuer.

5. Global Notes .

(a) Exchange for Certificated Notes . Notwithstanding any other provisions of this Agreement or the Notes, a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any person other than the U.S. Depositary or one or more nominees thereof; provided that a Global Note may also be exchanged for Notes registered in the names of any person designated by the U.S. Depositary in the event that such exchange is permitted by applicable law and (i) the U.S. Depositary has notified the Issuer that it is unwilling or unable to continue as U.S. Depositary for such Global Note or the U.S. Depositary has ceased to be a “clearing agency” registered under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the Issuer fails to appoint a successor depositary within 90 days of receiving such notice, (ii) an event described in paragraph 14(a) or the first sentence of paragraph 14(b) of the Notes has occurred and is continuing with respect to the Notes, (iii) a request for certificates has been made upon 60 days’ prior written notice given to the Fiscal Agent in accordance with the U.S. Depositary’s customary procedures and a copy of such notice has been received by the Issuer from the Fiscal Agent or (iv) the holder of an interest in such Global Note has notified the Fiscal Agent and securities registrar in writing that it is transferring such beneficial interest to an Institutional Accredited Investor and such holder (1) requests in such written notice that certificates be delivered to such transferee and (2) complies with the requirements for transfer specified in Section 6(c)(vi) of this Agreement. Any Global Note exchanged pursuant to clause (i)  above shall be so exchanged in whole and not in part and any Global Note exchanged pursuant to clause (ii) , (iii)  or (iv)  above may be exchanged in whole or from time to time in part as directed by the U.S. Depositary. Any Note issued in exchange for a Global Note or any portion thereof shall be a Global Note; provided that any such Note so issued that is registered in the name of a person other than the U.S. Depositary or a nominee thereof shall be in the form of Certificated Notes.

(b) Notes Issued in Exchange for Global Notes . Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the U.S. Depositary shall designate and shall bear the applicable legends provided for herein. Any Global Note to be exchanged in whole shall be surrendered by the U.S. Depositary to the Transfer Agent located in the Borough of Manhattan, The City of New York, to be so exchanged. With regard to any Global Note to be exchanged in part, either such Global

 

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Note shall be so surrendered to the Transfer Agent for exchange or, if the Fiscal Agent is acting as custodian for the U.S. Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Fiscal Agent. Upon any such surrender or adjustment, the Fiscal Agent shall authenticate and deliver the Note duly executed by the Issuer in connection with such exchange to or upon the order of the U.S. Depositary or an authorized representative thereof. Any Note delivered in exchange for the Restricted Global Note or any portion thereof shall, except as otherwise provided by Section 6(g) , bear the legend regarding transfer restrictions applicable to the Registered Global Note set forth on the form of Note attached as Exhibit B hereto.

(c) Authorization by Registered Holder . Subject to the provisions of Section 1(c) above, the registered holder may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a registered holder of a Note is entitled to take under this Fiscal Agency Agreement or the Notes.

(d) Certificated Notes Made Available . In the event of the occurrence of any of the events specified in paragraph (a)  of this Section 5 , the Issuer will promptly make available to the Fiscal Agent a reasonable supply of executed Certificated Notes.

6. Registration, Transfer and Exchange of Notes .

(a) General . The Fiscal Agent, as agent of the Issuer for this purpose, shall maintain at its Corporate Trust Office in the Borough of Manhattan, The City of New York, a register of Notes for the registration of Notes and the transfers and exchanges thereof. Subject to the provisions of this Section 6 , upon presentation for the registration, transfer or exchange of any Note at the office of any Transfer Agent accompanied by a written instrument of transfer or exchange in the form reasonably approved by the Issuer (it being understood that, until notice to the contrary is given to holders of Notes, the Issuer shall be deemed to have approved the form of instrument of transfer or exchange, if any, printed on any Note), executed by the registered holder, in person or by such holder’s attorney thereunto duly authorized in writing, such Note shall be transferred upon the register for the Notes, and a new Note shall be authenticated and issued in the name of the transferee. No transfer shall be effected under this Agreement or the Notes until, and such transferee shall succeed to the rights of the transferor only upon, final acceptance and registration of transfer by the Fiscal Agent, as Transfer Agent, or by the Transfer Agent if the Fiscal Agent is not so serving, in the register.

(b) Transfers of Restricted Certificated Notes . If a holder of Certificated Notes that bear or are required to bear the legends set forth in the form of Note attached as Exhibit A hereto (“ Restricted Certificated Notes ”) wishes at any time to transfer such Restricted Certificated Notes or to exchange such Restricted Certificated Notes, such exchange or transfer may be effected only in accordance with the provisions of this Section 6(b) .

(i) Transfer and Exchange of Restricted Certificated Notes . Upon the receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York, of (i) a Restricted Certificated Note accompanied by a written and executed instrument of transfer or exchange as provided in Section 6(a) and (ii) the following additional information and documents, as applicable:

(1) if such Restricted Certificated Note is owned by the holder thereof and is being exchanged, without transfer, a certification from such holder to that effect, substantially in the form of Exhibit C-1 hereto; or

 

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(2) if such Restricted Certificated Note is transferred pursuant to an exemption from registration in accordance with Rule 144A under the Act (“ Rule 144A ”), Rule 144, Regulation S or such other exemption from registration under the Act, a certification from such holder to that effect and if the Fiscal Agent or the Issuer so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to compliance with the restrictions contained in the legend set forth on the security, the Fiscal Agent shall register the transfer of such Restricted Certificated Note or exchange such Restricted Certificated Note for an equal principal amount of Restricted Certificated Notes of other authorized denominations.

To permit registrations of transfers and exchanges, the Fiscal Agent or Transfer Agent shall communicate to the Issuer any request from a holder of a Note to so transfer or exchange and the Issuer shall execute and the Fiscal Agent (or an authenticating agent appointed pursuant to Section 3) shall authenticate and deliver such Restricted Certificated Note. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Fiscal Agent may require payment by the holder of a Note of a sum sufficient to cover any transfer tax or other governmental charge payable in connection with any registration of transfer or exchange.

All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, subject to the Payment Restrictions, evidencing the same debt, and the applicable provisions of this Agreement shall apply equally thereto, as to the Notes surrendered upon such registration of transfer or exchange.

(ii) Transfer of a Restricted Certificated Note for a Beneficial Interest in a Global Note . Upon the receipt by the Fiscal Agent, as Transfer Agent, at its Corporate Trust Office in The City of New York of ( i ) a Restricted Certificated Note accompanied by a written and executed instrument of transfer or exchange as provided in Section 6(a) , ( ii ) written instructions from an Agent Member directing the Fiscal Agent to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Restricted Global Note or the Permanent Regulation S Global Note, as the case may be, having a principal amount equal to the principal amount of the Restricted Certificated Note so transferred, ( iii ) a written order containing information regarding the account of the Agent Member to be credited with such beneficial interest and ( iv ) the following additional documents, as applicable:

(1) if such Restricted Certificated Note is transferred pursuant to an exemption from registration in accordance with Regulation S or Rule 144 under the Act, a certification from such holder to that effect, substantially in the form of Exhibit C-2 hereto;

 

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(2) if such Restricted Certificated Note is transferred pursuant to an exemption from registration in accordance with Rule 144A under the Act, a certification from such holder to that effect substantially in the form of Exhibit C-3 hereto; or

(3) if such Restricted Certificated Note is transferred pursuant to any other exemption from registration under the Act, a certification from such holder to that effect and if the Fiscal Agent or the Issuer so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to compliance with the restrictions contained in the legend set forth on the security,

the Fiscal Agent shall cancel such Restricted Certificated Note and shall instruct the U.S. Depositary to increase the principal amount of the Restricted Global Note or the Permanent Regulation S Global Note, as the case may be, by the principal amount of the Restricted Certificated Note so transferred, and to credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Restricted Global Note or the Permanent Regulation S Global Note, as the case may be, having a principal amount equal to the principal amount of the Restricted Certificated Note so transferred.

(c) Transfers of Global Notes and Interests Therein . Notwithstanding any other provision of this Agreement or the Notes, transfers of a Global Note, in whole or in part, and transfers of interests therein of the kind described in clauses (ii) , (iii)  or (iv)  below, shall be made only in accordance with this Section 6(c) , and all transfers of an interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note shall comply with Section 6(c)(iv) or (v)  below, as applicable.

(i) General . A Global Note may not be transferred, in whole or in part, to any person other than the U.S. Depositary or a nominee thereof, and no such transfer to any such other person may be registered; provided that this clause (i)  shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any person shall be effective under this Agreement or the Notes unless and until such Note has been registered in the name of such person. The transfer and exchange of any beneficial interest in Global Notes shall be effected through the U.S. Depositary in accordance with this Agreement (including applicable restrictions on transfer set forth herein, if any) and the procedures of the U.S. Depositary therefor and nothing in this Section 6(c)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 6(c) .

(ii) Restricted Global Note to Temporary Regulation S Global Note . If the holder of a beneficial interest in the Restricted Global Note wishes at any time to transfer

 

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such interest to a person who wishes to take delivery thereof in the form of a beneficial interest in the Temporary Regulation S Global Note, such transfer may be effected, subject to the rules and procedures of the U.S. Depositary, Euroclear and Clearstream Banking, in each case to the extent applicable (the “ Applicable Procedures ”), only in accordance with the provisions of this Section 6(c)(ii) . Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Fiscal Agent to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Temporary Regulation S Global Note in a principal amount equal to that of the beneficial interest in the Restricted Global Note to be so transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member (and the Euroclear or Clearstream Banking account, as the case may be) to be credited with, and the account of the Agent Member to be debited for, such beneficial interest and (3) a certificate in substantially the form of Exhibit D attached hereto given by the holder of such beneficial interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S. Depositary to reduce the principal amount of the Restricted Global Note, and to increase the principal amount of the Temporary Regulation S Global Note, by the principal amount of the beneficial interest in the Restricted Global Note to be so transferred, and to credit or cause to be credited to the account of the person specified in such instructions (which shall be the Agent Member for Euroclear or Clearstream Banking or both, as the case may be) a beneficial interest in the Temporary Regulation S Global Note having a principal amount equal to the amount by which the principal amount of the Restricted Global Note was reduced upon such transfer.

(iii) Restricted Global Note to Permanent Regulation S Global Note . If the holder of a beneficial interest in the Restricted Global Note wishes at any time after the expiration of the Restricted Period to transfer such interest to a person who wishes to take delivery thereof in the form of a beneficial interest in the Permanent Regulation S Global Note, such transfer may be effected, subject to the Applicable Procedures, only in accordance with this Section 6(c)(iii) . Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Fiscal Agent to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Permanent Regulation S Global Note in a principal amount equal to that of the beneficial interest in the Restricted Global Note to be so transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member (and, in the case of any such transfer pursuant to Regulation S, if such account is held for Euroclear or Clearstream Banking the Euroclear or Clearstream Banking account for which such Agent Member’s account is held) to be credited with, and the account of the Agent Member to be debited for, such beneficial interest and (3) a certificate in substantially the form of Exhibit E attached hereto given by the holder of such beneficial interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S. Depositary to reduce the principal amount of the Restricted Global Note, and to increase the principal amount of the Permanent Regulation S Global Note, by the principal amount of the beneficial interest in the Restricted Global Note to be so transferred, and to credit or cause to be credited to the account of the person

 

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specified in such instructions a beneficial interest in the Permanent Regulation S Global Note having a principal amount equal to the amount by which the principal amount of the Restricted Global Note was reduced upon such transfer.

(iv) Temporary Regulation S Global Note or Permanent Regulation S Global Note to Restricted Global Note . If the holder of a beneficial interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note wishes at any time to transfer such interest to a person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note, such transfer may be effected, subject to the Applicable Procedures, only in accordance with this Section 6(c)(iv) . Upon receipt by the Fiscal Agent, as Transfer Agent, at its office in The City of New York of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member, directing the Fiscal Agent, as Transfer Agent, to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in the Restricted Global Note equal to that of the beneficial interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note to be so transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member to be credited with, and the account of the Agent Member (and if such account is held for Euroclear or Clearstream Banking, the Euroclear or Clearstream Banking account, as the case may be) to be debited for, such beneficial interest, and (3) with respect to a transfer of a beneficial interest in the Temporary Regulation S Global Note, a certificate substantially in the form of Exhibit F hereto given by the holder of such beneficial interest, the Fiscal Agent, as Transfer Agent, shall instruct the U.S. Depositary to reduce the principal amount of the Temporary Regulation S Global Note or the Permanent Regulation S Global Note, as the case may be, and increase the principal amount of the Restricted Global Note, by the principal amount of the beneficial interest in the Temporary Regulation S Global Note or the Permanent Regulation S Global Note, as the case may be, to be so transferred, and to credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Restricted Global Note having a principal amount equal to the amount by which the principal amount of the Temporary Regulation S Global Note or the Permanent Regulation S Global Note, as the case may be, was reduced upon such transfer.

(v) Interests in Temporary Regulation S Global Note to be Held Through Euroclear or Clearstream Banking . Until the termination of the Restricted Period, any interest in the Temporary Regulation S Global Note may be held only through Agent Members acting for and on behalf of Euroclear and Clearstream Banking, and any purchaser of Notes in a sale made in reliance on Regulation S may not sell or offer to sell such Notes within the United States or to a U.S. person or for the account or benefit of a U.S. person within the meaning of Regulation S; provided that this clause (v) shall not prohibit any transfer in accordance with Section 6(c)(iv) hereof.

(vi) Other Exchanges . In the event that a Global Note, any portion thereof or a beneficial interest therein is exchanged for Notes other than Global Notes, such other Notes may in turn be exchanged (on transfer or otherwise) for Notes that are not Global Notes or for beneficial interests in a Global Note (if any is then outstanding) only in accordance with such procedures, which shall be substantially consistent with the

 

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provisions of Section 6(b) ; provided that any beneficial interest in the Temporary Regulation S Global Note shall not be exchangeable for a Certificated Note until the expiration of the Restricted Period.

(d) Registration of Transfers and Exchanges . Successive registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the securities register. No service charge shall be made to a holder for any registration of transfer or exchange of the Notes, but the Fiscal Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith and any other amounts required to be paid by the provisions of the Notes.

(e) Information from Transfer Agent . Any Transfer Agent appointed pursuant to Section 2 hereof shall provide to the Fiscal Agent such information as the Fiscal Agent may reasonably require in connection with the delivery by such Transfer Agent of Notes upon transfer or exchange of Notes.

(f) Periods of Non-registration . No Transfer Agent shall be required to make registrations of transfer or exchange of Notes during any periods designated in the text of the Notes as periods during which such registration of transfer and exchanges need not be made.

(g) Legend . If Notes are issued upon the transfer, exchange or replacement of Notes not bearing the legends required, as applicable, by the Act and by the forms of Notes attached as Exhibit A or Exhibit B hereto, which legends are set forth in the forms of Notes attached as Exhibit A or Exhibit B hereto (collectively, the “ Legend ”), the Notes so issued shall not bear the Legend. If Notes are issued upon the transfer, exchange or replacement of Notes bearing the Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Issuer such satisfactory evidence, which may include an opinion of counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Act or that such Notes are not “restricted securities” within the meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence, the Fiscal Agent, at the written direction of the Issuer, shall authenticate and deliver a Note that does not bear the Legend or may remove the Legend, as the case may be. The Issuer agrees to indemnify the Fiscal Agent for, and to hold it harmless against, any loss, liability or expense, including the fees and expenses of counsel, reasonably incurred, arising out of or in connection with actions taken or omitted by the Fiscal Agent in reliance upon such legal opinion and the delivery of a Note that does not bear a Legend. Upon any request for sale or other transfer of a Note (including any Global Note) bearing such Legend (a “ Restricted Note ”) made subsequent to the date which is one year (or for such period as may otherwise be required by Rule 144 under the Act, or any successor rule or regulation permitting resales of the Notes without any conditions) after the later of the date of original issuance of the Notes and the last date on which the Issuer or an affiliate of the Issuer, within the meaning of Rule 144 under the Act, was the holder of such Restricted Note and with respect to which a certification is furnished by the transferor in substantially the form of Exhibit H hereto, (i) in the case of any definitive Restricted Note, the Fiscal Agent, or the Transfer Agent if the Fiscal Agent does not also act as the Transfer Agent, will permit the holder thereof to exchange such

 

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Restricted Note for definitive Notes that do not bear the Legend and such request will be effective to rescind any restriction on the further transfer of such Note, and (ii) any such Restricted Notes represented by a Global Note will not be subject to any restriction on transfer and may, at the direction of the Issuer, be exchanged for a Global Note that does not bear the Legend; in each such case, such Notes (whether in definitive or global form) will no longer constitute Restricted Notes.

(h) Repurchases by Issuer . With the prior approval of the Commissioner, the Issuer and any person that constitutes an affiliate of the Issuer within the meaning of the Act may at any time purchase Notes in the open market or otherwise at any price, for its own account or the account of others. Any Note so purchased by the Issuer or any such affiliate for its own account shall not thereafter be re-issued or resold, except pursuant to an exemption from registration under the Act.

7. Redemption . Subject to the Payment Restrictions, including the prior approval of the Commissioner, the Notes may be redeemed, as a whole or in part, at the option of the Issuer at any time and from time to time, at the Redemption Price set forth in paragraph 15 of the Notes. The Notes may not be redeemed at the option of a holder thereof.

(a) Notice to Fiscal Agent . If the Issuer elects to redeem Notes pursuant to paragraph 15 of the Notes, it shall notify the Fiscal Agent in writing of the date designated for redemption, the aggregate principal amount of Notes to be redeemed, the Redemption Price (as defined in the Notes) and that such redemption is being made pursuant to paragraph 15 of the Notes. The Issuer shall give each notice to the Fiscal Agent provided for in this Section not less than 45 days (unless a shorter period is acceptable to the Fiscal Agent) nor more than 60 days before the date designated for redemption.

(b) Selection of Notes to be Redeemed . If less than all the Notes are to be redeemed, each Outstanding Note shall be redeemed, pro rata ; provided that if at the time of redemption such Notes are registered as a Global Note, the U.S. Depositary for such Global Note shall determine, in accordance with its procedures, the principal amount of such Notes to be redeemed held by each holder of a beneficial interest in such Global Note. The Fiscal Agent shall notify the Issuer promptly of the Notes or portion thereof selected to be redeemed. Notwithstanding any provision hereof or of the Notes to the contrary, any redemption of the Notes hereunder shall be pro rata with any other surplus or contribution notes or similar obligations issued from time to time by the Issuer or the General Account (or any successor or assign thereof in respect of such notes or similar obligations), in each case except to the extent that any such notes or similar obligations are, by their express terms, subordinated to the Notes.

(c) Notice of Redemption; Effect of Notice . Notices to redeem Notes shall be given by the Fiscal Agent on behalf of and at the expense of the Issuer in the manner provided in paragraph 15 of the Notes. The effect of such notice shall be as set forth in such paragraph 15 .

(d) Notes Redeemed in Part . Any Note which is to be redeemed only in part shall be surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer and the Fiscal Agent duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the

 

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Issuer shall execute, and the Fiscal Agent shall authenticate and deliver to the holder of such Note without service charge, a new registered Note or Notes, of any authorized denomination as requested by such holder, and as permitted by Section 1(d) of this Agreement, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.

8. Delivery of Certain Information . At any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a holder of a Note or beneficial interest in a Global Note, the Issuer shall promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such holder, or to a prospective purchaser of such Note or interest designated by such holder, in order to permit compliance by such holder with Rule 144A under the Act in connection with the resale of such Note by such holder. “ Rule 144A Information ” shall be such information as is specified pursuant to paragraph (d)(4) of Rule 144A (or any successor provision thereto), as such provisions (or successor provision) may be amended from time to time.

9. Conditions of Fiscal Agent’s Obligations . The Fiscal Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Issuer agrees and all of which are applicable to the Notes and the holders from time to time thereof:

(a) Compensation and Indemnity . The Fiscal Agent shall be entitled to such compensation as agreed from time to time in writing with the Issuer for all services rendered by it, and the Issuer agrees promptly to pay such compensation and to reimburse the Fiscal Agent for the reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by it in connection with or arising out of its services hereunder, or the issuance of the Notes and their offering and sale. The Issuer also agrees to indemnify the Fiscal Agent for, and to hold it harmless against, any loss, damages, claim, liability or expense, incurred without bad faith, negligence, fraud or willful misconduct, arising out of or in connection with its acting as Fiscal Agent, Transfer Agent or Paying Agent hereunder, as well as the reasonable costs and expenses actually incurred by the Fiscal Agent of defending against any claim of liability in the premises. The Issuer undertakes to pursue all of its payment rights under each of the Secured Note dated as of March 24, 2010, from Ambac Assurance Corporation to the Issuer and the Cooperation Agreement, dated as of March 24, 2010, by and between Ambac Assurance Corporation and the Issuer against Ambac Assurance Corporation for any amounts due to the Fiscal Agent pursuant to this Agreement. The obligations of the Issuer under this Section 9(a) shall survive payment of all the Notes, the resignation or removal of the Fiscal Agent or the termination of this Agreement.

(b) Agency . In acting under this Agreement and in connection with the Notes, the Fiscal Agent is acting solely as agent of the Issuer and does not assume any responsibility for the correctness of the recitals in the Notes (except for the correctness of the statement in its certificate of authentication thereon) or any obligation or relationship of agency or trust, for or with any of the owners or holders of the Notes, except that all funds held by the Fiscal Agent for the payment of principal of and any interest on the Notes, to the extent permitted under the Payment Restrictions, shall be held in trust for such owners or holders, as the case may be, as set forth herein and in the Notes; provided , however , that monies held in respect of the Notes

 

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remaining unclaimed at the end of two years after such principal and such interest shall have become payable in accordance with the Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer. Upon such repayment, the aforesaid trust with respect to the Notes shall terminate and all liability of the Fiscal Agent and Paying Agents with respect to such funds shall thereupon cease.

(c) Advice of Counsel . The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may consult with their respective counsel or other independent counsel satisfactory to them (to the extent such consultation is contemplated by the terms of this Agreement, at the expense of the Issuer), and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by them hereunder, provided, that such action is without bad faith, negligence, fraud or willful misconduct on its part and in accordance with such advice or opinion.

(d) Reliance . The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof each shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Note, notice, direction, consent, certificate (including a certificate of an Authorized Officer delivered to the Fiscal Agent), affidavit, statement, or other paper or document believed by it, acting without bad faith, negligence, fraud or willful misconduct on its part, to be genuine and to have been passed upon or signed by the proper parties.

(e) Interest in Notes, etc . The Fiscal Agent, any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof and their respective officers, directors and employees may become the owners of, or acquire any interest in, any Notes, with the same rights that they would have if they were not the Fiscal Agent, such other Paying Agent or Transfer Agent or such person, and may engage or be interested in any financial or other transaction with the Issuer, and may act on, or as depositary, trustee or agent for, any committee or body of holders of Notes or other obligations of the Issuer, as freely as if they were not the Fiscal Agent, such other Paying Agent or Transfer Agent or such person.

(f) Non-Liability for Interest . Subject to any agreement between the Issuer and the Fiscal Agent to the contrary, the Fiscal Agent shall not be under any liability for interest on monies at any time received by it pursuant to any of the provisions of this Agreement or the Notes.

(g) Certifications . Whenever in the administration of this Agreement the Fiscal Agent shall deem it desirable that a matter of fact be proved or established prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith, negligence, fraud or willful misconduct on its part, rely upon a certificate signed by an Authorized Officer and delivered to the Fiscal Agent as to such matter of fact.

(h) No Implied Obligations . The duties and obligations of the Fiscal Agent, the Transfer Agent and the Paying Agent with respect to matters governed by this Agreement shall be determined solely by the express provisions hereof, and none of the Fiscal Agent, the Transfer

 

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Agent or the Paying Agent shall be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement and the Notes, as applicable, and no implied covenants or obligations shall be read into this Agreement or the Notes against the Fiscal Agent, the Transfer Agent or the Paying Agent and the Fiscal Agent, the Transfer Agent and the Paying Agent shall be protected and incur no liability in respect of any action taken or omitted to be taken hereunder by the Fiscal Agent, the Transfer Agent or the Paying Agent without bad faith, negligence, fraud or willful misconduct on its part. Nothing in this Agreement shall be construed to require the Fiscal Agent, the Transfer Agent or the Paying Agent to advance or expend their own funds or take any action that may, in their opinion, expose them to any liability unless they receive indemnity satisfactory to them.

(i) Enforceability of Rights . The rights, privileges, protections, immunities and benefits given to the Fiscal Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Fiscal Agent in each of its capacities hereunder, and each agent, custodian and other person employed to act hereunder.

(j) Agents . The Fiscal Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys or custodians.

(k) Damages . In no event shall the Fiscal Agent be liable, directly or indirectly, for any special, indirect or consequential damages, even if the Fiscal Agent has been advised of the possibility of such damages.

(l) Recitals . The recitals contained in this Agreement and in the Notes (except the Fiscal Agent’s certificates of authentication) shall be taken as the statements of the Issuer and the Fiscal Agent does not assume any responsibility for the correctness of the same. The Fiscal Agent does not make any representation (other than with respect to itself) as to the validity or sufficiency of this Agreement or the Notes, except for the Fiscal Agent’s due authorization, execution and delivery of this Agreement. The Fiscal Agent shall not be accountable for the use or application by the Issuer of any of the Notes or the proceeds thereof.

(m) Occurrences Beyond Reasonable Control . In no event shall the Fiscal Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services; it being understood that the Fiscal Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

(n) Default of the Issuer . Except as specifically set forth in this Agreement, the Fiscal Agent shall not have any duty or responsibility in case of any default by the Issuer in the performance of its obligations (including, without limiting the generality of the foregoing, any duty or responsibility to accelerate all or any of the Notes or to initiate or to attempt to initiate any proceedings at law or otherwise or to make any demand for the payment thereof upon the Issuer).

 

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10. Resignation, Removal and Appointment of Successor .

(a) Fiscal Agent and Paying Agent . The Issuer agrees, for the benefit of the holders from time to time of the Notes, that there shall at all times be a Fiscal Agent hereunder which shall be a bank or trust company organized and doing business under the laws of the United States of America or the State of New York, in good standing and having an established place of business in the Borough of Manhattan, The City of New York, and authorized under such laws to exercise corporate trust powers, until all the Notes authenticated and delivered hereunder (i) shall have been delivered to the Fiscal Agent for cancellation or (ii) have become payable, with the approval of the Commissioner, and monies sufficient to pay the full principal of and any interest remaining unpaid on the Notes shall have been made available for payment and either paid or returned to the Issuer as provided herein and in such Notes.

(b) Resignation and Removal . The Fiscal Agent may at any time resign by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective; provided that such date shall not be less than 60 days from the date on which such notice is given, unless the Issuer agrees to accept shorter notice. The Fiscal Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed on behalf of the Issuer and specifying such removal and the date when it shall become effective. Notwithstanding the dates of effectiveness of resignation or removal, as the case may be, to be specified in accordance with the preceding sentences, such resignation or removal shall take effect only upon the appointment by the Issuer, as hereinafter provided, of a successor Fiscal Agent (which, to qualify as such, shall for all purposes hereunder be a bank or trust company organized and doing business under the laws of the United States of America or of the State of New York, in good standing and having and acting through an established place of business in the Borough of Manhattan, The City of New York, authorized under such laws to exercise corporate trust powers and having a combined capital and surplus in excess of $50,000,000) and the acceptance of such appointment by such successor Fiscal Agent. Upon its resignation or removal, the Fiscal Agent shall be entitled to payment by the Issuer pursuant to Section 9 hereof of compensation for services rendered and to reimbursement of reasonable out-of-pocket expenses incurred hereunder. If a successor Fiscal Agent does not take office within 60 days after the retiring Fiscal Agent provides written notice of its intent to resign or is removed, the retiring Fiscal Agent at the expense of the Issuer, the Issuer or the holders of at least 10% in aggregate principal amount of the Notes then Outstanding (as defined in Section 11(d) herein) may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent.

(c) Successors . In case at any time the Fiscal Agent (or any Paying Agent if such Paying Agent is the only Paying Agent located in a place where, by the terms of the Notes or this Agreement, the Issuer is required to maintain a Paying Agent) shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they severally mature, or if a receiver of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of applicable receivership, bankruptcy, insolvency or other similar legislation, or if any public officer shall

 

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take charge or control of it or of its property or affairs, for the purpose of rehabilitation, liquidation, conservation or dissolution, a successor Fiscal Agent or Paying Agent, as the case may be, qualified as aforesaid (in the case of the Fiscal Agent), shall be appointed by the Issuer by an instrument in writing, filed with the successor Fiscal Agent or Paying Agent, as the case may be, and the predecessor Fiscal Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of a successor Fiscal Agent or Paying Agent, as the case may be, and acceptance by such successor of such appointment, the Fiscal Agent or Paying Agent, as the case may be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the case may be, hereunder. If no successor Fiscal Agent or other Paying Agent, as the case may be, shall have been so appointed by the Issuer and shall have accepted appointment as hereinafter provided, and, in the case of such other Paying Agent, if such other Paying Agent is the only Paying Agent located in a place where, by the terms of the Notes or this Agreement, the Issuer is required to maintain a Paying Agent, then any holder of a Note who has been a bona fide holder of a Note for at least six months (which Note, in the case of such other Paying Agent, is referred to in this sentence), on behalf of such holder and all others similarly situated, or the Fiscal Agent, may petition any court of competent jurisdiction for the appointment of a successor fiscal or paying agent, as the case may be. The Issuer shall give prompt written notice to each other Paying Agent of the appointment of a successor Fiscal Agent.

(d) Acknowledgement . Any successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder. Upon delivery of such instrument, such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Fiscal Agent hereunder and all provisions hereof shall be binding on such successor Fiscal Agent. Furthermore, upon delivery of such instrument, such predecessor, upon payment of its compensation and reimbursement of its disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Fiscal Agent shall be entitled to receive, all monies, securities, books, records or other property on deposit with or held by such predecessor as Fiscal Agent hereunder. Upon delivery of such property, such predecessor Fiscal Agent shall become entitled to payment by the Issuer of its compensation and reimbursement of its disbursements then unpaid from such successor Fiscal Agent.

(e) Merger, Consolidation, etc . Any bank or trust company into which the Fiscal Agent hereunder may be merged, or resulting from any merger or consolidation to which the Fiscal Agent shall be a party, or to which the Fiscal Agent shall sell or otherwise transfer all or substantially all the agency and trust business of the Fiscal Agent; provided that it shall be qualified as aforesaid, shall be the successor Fiscal Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.

11. Meetings and Amendments .

(a) Calling of Meeting, Notice and Quorum . A meeting of holders of Notes may be called at any time and from time to time to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement or the Notes to be made, given or taken by holders of Notes or to modify, amend or supplement the

 

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terms of the Notes or this Agreement as hereinafter provided, and subject to the requirement hereinafter set forth that the Issuer and the Fiscal Agent may, only with the prior approval of the Commissioner, modify, amend or supplement this Agreement or the terms of the Notes or give consents or waivers or take other actions with respect thereto. The Fiscal Agent may at any time call a meeting of holders of Notes for any such purpose to be held at such time and at such place in the Borough of Manhattan, The City of New York as the Fiscal Agent shall determine. Notice of every meeting of holders of Notes, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given as provided in the terms of the Notes, not less than 30 nor more than 60 days prior to the date fixed for the meeting ( provided that, in the case of any meeting to be reconvened after adjournment for lack of a quorum, such notice shall be so given not less then 15 nor more than 60 days prior to the date fixed for such meeting). In case at any time the Issuer or the holders of at least 10% in aggregate principal amount of the Outstanding Notes (as defined in subsection (d)  of this Section) shall have requested the Fiscal Agent to call a meeting of the holders of Notes for any such purpose, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, the Fiscal Agent shall call such meeting for such purposes by giving notice thereof.

To be entitled to vote at any meeting of holders of Notes, a person shall be a holder of Outstanding Notes or a person duly appointed by an instrument in writing as proxy for such a holder. The persons entitled to vote a majority in principal amount of the Outstanding Notes shall constitute a quorum. The Fiscal Agent may make such reasonable and customary regulations consistent herewith as it shall deem advisable for any meeting of holders of Notes with respect to the proof of the appointment of proxies in respect of holders of Notes, the record date for determining the registered holders of Notes who are entitled to vote at such meeting (which date shall be designated by the Fiscal Agent and set forth in the notice calling such meeting hereinabove referred to and which shall be not less than 15 nor more than 60 days prior to such meeting; provided that nothing in this paragraph shall be construed to render ineffective any action taken by holders of the requisite principal amount of Outstanding Notes on the date such action is taken), the adjournment and chairmanship of such meeting, the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.

(b) Approval .

(i) At any meeting of holders of Notes duly called and held as specified above, upon the affirmative vote, in person or by proxy thereunto duly authorized in writing, of the holders of not less than a majority in aggregate principal amount of the Notes then Outstanding, or (ii) with the written consent of the holders of not less than a majority in aggregate principal amount of the Notes then Outstanding, in each case (i) or (ii) the Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, modify, amend or supplement the terms of the Notes or this Agreement in any way, and the holders of Notes may make, take or give any request, demand, authorization, direction, notice, consent, waiver (including waiver of future compliance or past failure to perform) or other action provided by this Agreement or the Notes to be made, given or taken by holders of Notes; provided that no such action, modification, amendment or supplement, however effected, may, without the consent of the holder of each Note affected thereby, (A) change the Scheduled Interest Payment Date (as defined in the Notes) or Scheduled

 

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Maturity Date of the principal of or any installment of interest on any Note, (B) reduce the principal amount of any Note or the interest rate thereon, (C) change the currency in which, or the required place at which, payment with respect to interest or principal in respect of the Notes is payable, (D) change the Issuer’s obligations under Section 8 hereof in any manner adverse to the interests of the holder of a Note, (E) impair the right of a holder of a Note to institute suit for the enforcement of any payment, if such payment is permitted under the Payment Restrictions, on or with respect to any Note, (F) modify the provisions of paragraph 10 of the Notes in a manner adverse to the holders of the Notes, (G) reduce the above-stated percentage of the principal amount of Outstanding Notes, the vote or consent of the holders of which is necessary to modify, amend or supplement this Agreement or the terms and conditions of the Notes or to make, take or give any request, demand, authorization, direction, notice, consent, waiver (including waiver of any future compliance or past failure to perform) or other action provided hereby or thereby to be made, taken or given, (H) reduce the percentage of aggregate principal amount of Outstanding Notes necessary to constitute a quorum at any meeting of holders of Notes at which a resolution is adopted, or (I) change the restrictions on payment of principal of or interest on or redemption payment with respect to the Notes in a manner adverse to the holders of the Notes.

The Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, without the vote or consent of any holder of Notes, amend this Agreement or the Notes for the purpose of (a) adding to the covenants of the Issuer for the benefit of the holders of Notes, (b) surrendering any right or power conferred upon the Issuer, (c) securing the Notes, (d) evidencing the succession of another entity to the Issuer and the assumption by such successor of the covenants and obligations of the Issuer herein and in the Notes as permitted by this Agreement and the Notes, (e) modifying the restrictions on, and procedures for, resale and other transfers of the Notes to the extent required by any change in applicable law or regulation, or the interpretation thereof, or in practices relating to the resale or transfer of restricted securities generally, (f) accommodating the issuance, if any, of Notes in book-entry or certificated form and matters related thereto which do not adversely affect the interest of any Note holder in any material respect, (g) curing any ambiguity or correcting or supplementing any defective provision contained herein or in the Notes in a manner which does not adversely affect the interest of any Note holder in any material respect, or (h) effecting any amendment which the Issuer and the Fiscal Agent may determine is necessary or desirable and which shall not adversely affect the interest of any Note holder.

It shall not be necessary for the vote or consent of the holders of Notes to approve the particular form of any proposed modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action, but it shall be sufficient if such vote or consent shall approve the substance thereof.

The Fiscal Agent shall receive an opinion of counsel in connection with any amendment or supplement entered into hereunder stating that all conditions precedent to such amendment or supplement have been fulfilled and that the Fiscal Agent’s entering into such amendment or supplement is authorized and permitted under this Agreement.

 

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(c) Binding Nature of Amendments, Notices, Notations, etc . Any instrument given by or on behalf of any holder of a Note in connection with any consent to or vote for any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action shall be irrevocable once given and shall be conclusive and binding on all subsequent holders of such Note or any Note issued directly or indirectly in exchange or substitution therefor or in lieu thereof. Any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action taken, made or given in accordance with Section 11(b) hereof shall be conclusive and binding on all holders of Notes, whether or not they have given such consent or cast such vote or were present at any meeting, and whether or not notation of such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action is made upon the Notes. Notice of any modification or amendment of, supplement to, or request, demand, authorization, direction, notice, consent, waiver or other action with respect to the Notes or this Agreement (other than for purposes of curing any ambiguity or of curing, correcting or supplementing any defective provision hereof or thereof) shall be given to each holder of Notes affected thereby, in all cases as provided in the Notes.

Notes authenticated and delivered after the effectiveness of any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may bear a notation in the form approved by the Fiscal Agent and the Issuer as to any matter provided for in such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action. New Notes modified to conform, in the opinion of the Fiscal Agent and the Issuer, to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action taken, made or given in accordance with Section 11(b) hereof may be prepared and executed by the Issuer, authenticated by the Fiscal Agent and delivered in exchange for Outstanding Notes.

(d) “ Outstanding” Defined . For purposes of the provisions of this Agreement and the Notes, any Note authenticated and delivered pursuant to this Agreement shall, as of any date of determination, be deemed to be “ Outstanding ,” except:

(i) Notes theretofore cancelled by the Fiscal Agent or delivered to the Fiscal Agent for cancellation;

(ii) Notes which have been called for redemption in accordance with their terms or which have become payable, to the extent permitted under the Payment Restrictions, at the Scheduled Maturity Date or otherwise, and with respect to which, in each case, monies sufficient to pay the principal thereof and any interest thereon shall have been paid; and

(iii) Notes paid under Section 12 of the Notes or in lieu of or in substitution for which other Notes shall have been authenticated and delivered pursuant to this Agreement;

provided , however , that in determining whether the holders of the requisite principal amount of Outstanding Notes are present at a meeting of holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment, modification or supplement hereunder, the principal amount of any Notes that are beneficially owned by the Issuer or any of its Affiliates, or the voting of which the Issuer

 

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or any of its Affiliates has the right to direct with respect to such request, demand, authorization, direction, notice, consent, waiver, amendment, modification or supplement, shall be disregarded in such calculation (in both the numerator and the denominator). The Fiscal Agent shall incur no liability for failing to disregard any Note owned directly or indirectly by the Issuer or any Affiliate of the Issuer in the absence of actual knowledge of that circumstance by a corporate trust officer of the Fiscal Agent responsible for the administration of this Agreement.

As used herein, an “ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

As used herein, “ Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof, or any other entity of any kind.

12. Remedies . Holders of Notes may enforce this Agreement or the Notes only in the manner set forth below.

(a) Acceleration of Maturity . In the event that any state or federal agency shall obtain an order or grant approval (excluding any Excluded Order) for the rehabilitation, liquidation, conservation, dissolution, receivership or any similar action of the Issuer or the General Account (including, without limitation, under Chapter 645 of the Wisconsin Statutes), the Notes will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the Fiscal Agent or any holder of the Notes, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Agreement or the Notes, in no event shall the Fiscal Agent or any holder of the Notes be entitled to declare the Notes to immediately mature or otherwise be immediately payable, except that payments approved by the Commissioner but unpaid may become immediately payable in accordance with clause (b)  below.

(b) Failure to Pay or Perform Other Obligations . In the event that the Commissioner approves in whole or in part a payment of any interest on or principal of, or any redemption payment with respect to, any Notes and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of the Fiscal Agent or any holder of Notes. In the event that the Issuer fails to perform any of its other obligations hereunder or under the Notes (or otherwise abide by any of the other terms hereof or of the Notes), each holder of the Notes may pursue any available remedy to enforce the performance of any provision of such Notes or this Agreement; provided , however , that such remedy shall in no event include the right to declare the Notes immediately payable, except for payments approved by the Commissioner, and shall in no circumstances be inconsistent with the provisions of applicable law. A delay or omission by any Note holder in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder or under the Notes

 

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(or otherwise abide by any of the other terms hereof or of the Notes) and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

(c) Rights of Holders . Notwithstanding any other provision of this Agreement or the Notes, the right of any holder of Notes to receive payment of the principal of and interest on such holder’s Notes on or after the respective scheduled payment or scheduled maturity dates expressed in such Notes, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to such payment on such dates having received the approval of the Commissioner pursuant to the Payment Restrictions, is absolute and unconditional and shall not be impaired or affected without the consent of such holder.

13. Governing Law . THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THE NOTES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE PARTIES TO THIS AGREEMENT AND HOLDERS OF NOTES SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

14. Notices . All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing, including by email, shall specify this Agreement by name and date and shall identify the Notes, and if sent to the Fiscal Agent shall be delivered or transmitted by facsimile to it at The Bank of New York Mellon, 101 Barclay Street, Floor 7W, New York, New York 10286, Attention: Dealing & Trading Unit, fax: 212-815-2830, and if sent to the Issuer, with respect to notices of payments and written confirmations of wire transfers, shall be delivered or transmitted by facsimile to it at The Segregated Account of Ambac Assurance Corporation, c/o Ambac Assurance Corporation, One State Street Plaza, New York, New York 10004, Attention: First Vice President—Cash Management, fax: 212-208-3507, and if sent to the Issuer, with respect to all other communications, shall be delivered or transmitted by facsimile to it at The Segregated Account of Ambac Assurance Corporation, c/o Ambac Assurance Corporation, One State Street Plaza, New York, New York 10004, Attention: Chief Financial Officer, fax: 212-208-3416. The foregoing addresses for notices or communications may be changed by written notice given by the addressee to each party hereto, and the addressee’s address shall be deemed changed for all purposes from and after the giving of such notice.

 

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Notices shall be deemed received by the Fiscal Agent only upon actual receipt by the Fiscal Agent. If the Fiscal Agent shall receive any notice or demand addressed to the Issuer by the holder of a Note, the Fiscal Agent shall promptly forward such notice or demand to the Issuer.

15. Severability . In case any provision in this Agreement or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

16. Headings . The section headings herein are for convenience of reference only and shall not affect the construction hereof.

17. Counterparts . This Agreement may be executed in one or more counterparts, and by each party separately on a separate counterpart, and each such counterpart when executed and delivered shall be deemed to be an original. Such counterparts shall together constitute one and the same instrument.

18. Interpretation . The provisions of this Agreement shall be construed to the greatest extent possible as consistent with the provisions of the Notes, and, to the extent the terms of this Agreement conflict with the terms of the Notes, the terms of the Notes shall govern.

19. Waiver of Jury Trial . EACH OF THE FISCAL AGENT AND THE ISSUER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

20. USA Patriot Act . The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from time to time, the “ USA Patriot Act ”), the Fiscal Agent, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Fiscal Agent with such information as the Fiscal Agent may request in order for the Fiscal Agent to satisfy the requirements of the USA Patriot Act.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Fiscal Agency Agreement as of the date first above written.

 

THE SEGREGATED ACCOUNT OF AMBAC

ASSURANCE CORPORATION,

By: Ambac Assurance Corporation, as Manager
By  

/s/ David Trick

Name:   David Trick
Title:   SMD, CFO and Treasurer

THE BANK OF NEW YORK MELLON as Fiscal

Agent

By  

/s/ Glenn G. McKeever

Name:   Glenn G. McKeever
Title:   Vice President

 

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EXHIBIT A

FORM OF CERTIFICATED NOTE

THIS 5.1% SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ACCORDANCE WITH THAT CERTAIN FISCAL AGENCY AGREEMENT BY AND BETWEEN THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION AND THE BANK OF NEW YORK MELLON (TOGETHER WITH ITS PERMITTED SUCCESSORS AND ASSIGNS, THE “ FISCAL AGENT ”), DATED AS OF JULY 19, 2010 (AS IT MAY BE DULY AMENDED FROM TIME TO TIME, THE “ FISCAL AGENCY AGREEMENT ”), COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICE OF THE FISCAL AGENT. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ RULE 144A ”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”).

[ INCLUDE IF NOTE IS A RESTRICTED CERTIFICATED NOTE OR NOTE ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(g) OF THE FISCAL AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED) — THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.]

ANY PERSON ACQUIRING THIS NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AND THE FISCAL AGENT AS SET FORTH IN PARAGRAPH 9 HEREOF.

 

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ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).

NEITHER THE ISSUER NOR ANY OF ITS AFFILIATES (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) THAT ACQUIRES NOTES ARE PERMITTED TO SELL SUCH NOTES.

 

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THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION

5.1% Surplus Note scheduled to mature on June 7, 2020

 

No. R-               $            

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION, a Wisconsin domiciled financial guaranty insurance corporation (and any successor in interest thereto, the “ Issuer ”), for value received, hereby promises to pay, subject to the Payment Restrictions (as defined in paragraph 1 of the reverse side of this Note), to                     , or registered assigns, the principal sum of                     United States dollars ($        ) on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner, from July 19, 2010 or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date the Notes are scheduled to mature, commencing June 7, 2011 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of the Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 15 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order). As specified on the reverse hereof, all payments of principal of or interest on this Note may be made only with the prior approval of the Commissioner. The interest so payable, and punctually paid or duly provided for, on any Scheduled Interest Payment Date shall be paid, in accordance with the terms of the Fiscal Agency Agreement hereinafter referred to, to the person (the “ registered holder ”) in whose name this Note (or one or more predecessor Notes) is registered at the close of business on May 20 (whether or not a Business Day, as defined herein), as the case may be (each, a “ Regular Record Date ”), next preceding such Scheduled Interest Payment Date. Interest on the Notes shall be calculated on the basis of a 360-day year of twelve months of 30 days each. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of the Notes not less than 15 days prior to such special record date.

Principal of this Note shall be payable against surrender hereof at the Corporate Trust Office of the Fiscal Agent hereinafter referred to and at the offices of such other Paying Agents as the Issuer shall have appointed pursuant to the Fiscal Agency Agreement. Payments of principal of the Notes shall be made only against surrender of the Notes; provided that in the case of payment of only a portion of principal, the Issuer shall execute a new registered Note or Notes in aggregate principal amount equal to and in exchange for the remaining portion of the principal of the Note so surrendered. Payments of interest on this Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer

 

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of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address appearing on the aforementioned register. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Notes of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to such Notes payable to such holder. The Issuer agrees that until this Note has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the full principal of and interest remaining unpaid on this Note have been made available for payment and either paid or returned to the Issuer as provided herein, it will at all times maintain offices or agencies in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Notes as herein provided.

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

This Note may be executed by the Issuer by manual, facsimile or portable document format signatures, and such signatures may be executed on separate counterparts.

Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, this Note shall not be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed. Dated:

 

THE SEGREGATED ACCOUNT OF AMBAC

ASSURANCE CORPORATION,

By:   Ambac Assurance Corporation, as Manager
By:  

 

Name:  
Title:  

This is one of the Notes referred to in the within-mentioned Fiscal Agency Agreement.

 

THE BANK OF NEW YORK MELLON as Fiscal

Agent

By:  

 

  Authorized Officer

 

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FORM OF REVERSE

1. General . This Note is one of a duly authorized issue of 5.1% Surplus Notes scheduled to mature on June 7, 2020 of the Issuer (herein called the “ Notes ”), unlimited in aggregate principal amount. The Issuer and The Bank of New York Mellon have entered into a Fiscal Agency Agreement, dated as of July 19, 2010 (such instrument, as it may be duly amended from time to time, is herein called the “ Fiscal Agency Agreement ”), which provides for the mechanism for issuing the Notes and, inter alia , sets forth certain duties of the Fiscal Agent in connection therewith. As used herein, the term “ Fiscal Agent ” includes any successor fiscal agent under the Fiscal Agency Agreement. Copies of the Fiscal Agency Agreement are on file and available for inspection at the Corporate Trust Office of the Fiscal Agent in the Borough of Manhattan, The City of New York. Holders of Notes are referred to the Fiscal Agency Agreement for a statement of the terms thereof, including those relating to transfer, payment, exchanges and certain other matters. The Fiscal Agent or any Paying Agent shall also act as Transfer Agent and securities registrar.

Capitalized definitional terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Fiscal Agency Agreement. The terms of the Notes include those stated in the Fiscal Agency Agreement. The Notes are subject to all such terms, and holders of the Notes are referred to the Fiscal Agency Agreement for a statement of such terms. Holders of Notes may enforce the Notes only in accordance with the Fiscal Agency Agreement.

The Notes are direct and unsecured obligations of the Issuer and, subject to the payment restrictions contained in paragraphs 4 and 10 hereof (the “ Payment Restrictions ”), are scheduled to mature on June 7, 2020.

Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of the Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 15 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order).

2. Form of Notes . The Notes are issuable only in fully registered form without coupons.

3. Registration, Transfer and Exchange . The Issuer shall maintain, in the Borough of Manhattan, The City of New York, a Transfer Agent where Notes may be registered or surrendered for registration of transfer or exchange. The Issuer has initially appointed the Fiscal Agent at its Corporate Trust Office as its Transfer Agent. The Issuer shall cause the Transfer Agent to act as a securities registrar and shall cause to be kept at the office of the Transfer Agent a register in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and registration of transfers and exchanges of Notes. The Issuer reserves the right to vary or terminate the appointment of the Transfer Agent or to appoint additional or other Transfer Agents or to approve any change in the office through which any Transfer Agent acts; provided that there shall at all times be a Transfer Agent in the Borough of Manhattan, The City of New York. The Issuer shall cause written notice of any resignation,

 

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termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent shall act to be provided to holders of Notes.

Subject to the restrictions set forth herein and in the Fiscal Agency Agreement, the transfer of a Note is registrable on the aforementioned register upon surrender of such Note at any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the registered holder thereof or such holder’s attorney duly authorized in writing. Upon such surrender of this Note for registration of transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.

Subject to the restrictions set forth herein and in the Fiscal Agency Agreement, at the option of the registered holder upon request confirmed in writing, Notes may be exchanged for Notes of any authorized denominations and aggregate principal amount upon surrender of the Notes to be exchanged at the office of any Transfer Agent. Whenever any Notes are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Notes which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange shall be effected upon the Issuer being reasonably satisfied with the documents of title and identity of the person making the request and subject to the restrictions set forth in this Note and/or the Fiscal Agency Agreement and such reasonable regulations as the Issuer may from time to time agree with the Fiscal Agent.

Notes may be redeemed by the Issuer, in whole or in part, but only to the extent permitted by the Payment Restrictions, including the prior approval of the Commissioner, and in accordance with paragraph 15 hereof. In the event of a partial redemption, the Issuer shall not be required (i) to register the transfer of or exchange any Note during a period beginning at the opening of business 15 days before the date notice is given identifying the Notes to be redeemed, or (ii) to register the transfer or exchange of any Note, or portion thereof, called for redemption.

All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits, as the Notes surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Fiscal Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith, other than an exchange in connection with the partial redemption of a Note not involving any registration of a transfer.

Prior to due presentment of this Note for registration of transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name this Note is registered as the absolute owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected by notice to the contrary.

 

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4. Restrictions on Payment . (a) Notwithstanding anything to the contrary set forth herein or in the Fiscal Agency Agreement, any payment of principal of, interest on or any monies owing with respect to this Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day (as defined below) on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated on the face hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder. If the Commissioner approves a payment of principal of or interest on the Notes in an amount that is less than the full amount of principal of and interest on the Notes then scheduled to be paid in respect of the Notes, payment of such partial amount shall be made pro rata among Note holders.

(b) Any payment of principal of or interest on any Note as to which the approval of the Commissioner has been obtained and which is not punctually paid or duly provided for on the scheduled payment date or scheduled maturity date thereof, as set forth herein (such payment being referred to as an “ Unpaid Amount ”), subject to the provisions of section 14(b) , will forthwith cease to be payable to the registered holder of this Note on the relevant record date designated herein, and such Unpaid Amount, together with interest thereon accrued at the rate of interest per annum applicable to principal hereunder, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, will instead be payable to the registered holder of this Note on a subsequent special record date. The Issuer shall fix the special record date and payment date for the payment of any Unpaid Amount. At least 15 days before the special record date, the Issuer shall mail to each holder of the Notes and the Fiscal Agent a notice that states the special record date, payment date and amount of interest or principal to be paid. On the payment date set forth in such notice, the Paying Agent shall pay the amount of interest or principal to be so paid to each holder of the Notes in the manner set forth in Section 4(a) of the Fiscal Agency Agreement.

5. Payment . (a) For so long as the Fiscal Agent is acting as a Paying Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, or such other Paying Agent if the Fiscal Agent is no longer acting as a Paying Agent, in immediately available funds on or prior to 11:00 a.m., New York time, on each date on which a payment of principal of or any interest on this Note is payable, as set forth herein, such amounts, in U.S. dollars, as are necessary (with any amounts then held by the Fiscal Agent and available for the purpose) to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on this Note as set forth herein and in the Fiscal Agency Agreement. Payments of principal of or any interest on the Notes will be made ( i ) by wire

 

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transfer of immediately available funds to an account maintained by the payee with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of the account to which payment is to be made or ( ii ) if no such notice is given, by mailing a check to the payee at the address reflected in the securities register maintained pursuant to Section 6 of the Fiscal Agency Agreement. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Notes shall remain in effect with respect to any future payments with respect to such Notes payable to such holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 of the Fiscal Agency Agreement for the payment, subject to the Payment Restrictions, from funds so paid by the Issuer of the principal of and any interest on this Note. Any monies held in respect of this Note remaining unclaimed at the end of two years after such principal and such interest shall have become payable in accordance with the Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer may have to pay the principal of and interest on this Note, subject to the Payment Restrictions. To the extent that the Fiscal Agent is not acting as Paying Agent, references to the Fiscal Agent in this Section 5(a) shall include the Paying Agent in such capacity.

(b) In any case where the scheduled payment date or scheduled maturity date of any Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

6. Duties and Taxes . The Issuer shall pay all stamp and other duties, if any, which may be imposed by the United States of America or any governmental entity or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Fiscal Agency Agreement or the initial issuance of this Note. All payments will be made by the Issuer without withholding or deduction for or on account for any present or future tax, duty, assessment or other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein, unless such withholding or deduction is required by law. The Issuer shall not be required to make any additional payment with respect to any withholding or deduction so required.

7. Covenants . For so long as any of the Notes remain Outstanding or any amount remains unpaid on any of the Notes,

 

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(a) Except with respect to transactions covered by paragraph 8 hereof, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, material rights (charter and statutory) and material franchises pursuant to the provisions of the Wisconsin Insurers Rehabilitation and Liquidation Act; provided , however , that the Issuer shall not be required to preserve any such right or franchise if the Rehabilitator or the Issuer’s Board of Directors, as applicable, shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and that the Issuer has used its reasonable best efforts to not disadvantage in any material respect the holders of the Notes.

(b) The Issuer will not be or become an open-end investment company, unit investment trust, face-amount certificate company or any other entity that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended (the “ Investment Company Act ”).

(c) (i) While the Issuer is subject to the Proceeding, the Rehabilitator will seek to, and (ii) while the Issuer is not subject to the Proceeding, the Issuer shall use its best efforts ( provided that such best efforts do not require the Issuer to raise additional capital or indebtedness) to, obtain the approval of the Commissioner for the payment by the Issuer of interest on and principal of the Notes on the scheduled payment dates or scheduled maturity dates thereof, and, in the event any such approval has not been obtained for any such payment at or prior to the scheduled payment date or scheduled maturity date thereof, as the case may be, to continue to use its best efforts (provided that such best efforts do not require the Issuer to raise additional capital or indebtedness) to obtain such approval promptly thereafter. Not less than 45 days prior to the scheduled payment date or scheduled maturity date thereof (excluding any such scheduled maturity date which arises as a result of the obtaining of an order or the granting of approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer), the Issuer will seek the approval of the Commissioner to make each payment of interest on and principal of the Notes. In addition, the Issuer shall notify in writing or cause to be notified in writing each holder of the Notes and the Fiscal Agent no later than five Business Days prior to the scheduled payment date for interest on or the scheduled maturity date for principal of any Note (excluding any such scheduled maturity date which arises as a result of the obtaining of an order or the granting of approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer) in the event that the Commissioner has not then approved the making of any such payment on such scheduled payment date or such scheduled maturity date, and thereafter, if such payment has been approved by the Commissioner, shall promptly notify in writing or cause to be notified in writing each holder of the Notes and the Fiscal Agent of such approval and of the fact that, notwithstanding such approval, the Issuer shall have failed to make any such payment on any such scheduled payment date or such scheduled maturity date.

(d) For any amounts due and payable under the Notes that are approved by the Commissioner in accordance with Section 4(a) of the Fiscal Agency Agreement and which are due and payable under the Secured Note dated as of March 24, 2010, from Ambac Assurance Corporation to the Issuer (the “ Secured Note ”) or the Aggregate Excess of Loss Reinsurance Agreement, dated as of March 24, 2010, by and between Ambac Assurance Corporation and the Issuer (the “ Aggregate Excess of Loss Reinsurance Agreement ”), as the case may be, the Issuer undertakes to demand payment under the Secured Note or the Aggregate Excess of Loss Reinsurance Agreement, as the case may be, against Ambac Assurance Corporation.

 

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8. Merger or Consolidation . For so long as any of the Notes remain Outstanding or any amounts remain unpaid on any of the Notes, the Issuer may merge or consolidate with or into any other corporation or sell, convey, transfer or otherwise dispose of all or substantially all of its assets to any person, firm or corporation, if (i) (A) in the case of a merger or consolidation, the Issuer is the surviving corporation or (B) in the case of a merger or consolidation where the Issuer is not the surviving corporation and in the case of any such sale, conveyance, transfer or other disposition, the successor corporation is either Ambac Assurance Corporation (or its successor) or a corporation organized and existing under the laws of the United States of America or a state thereof and such corporation expressly assumes by supplemental fiscal agency agreement all the obligations of the Issuer under the Notes and the Fiscal Agency Agreement, (ii) at the time of any such merger or consolidation, or such sale, conveyance, transfer or other disposition, the Issuer shall not have failed to make payment of interest on or principal of, or any redemption payment with respect to, the Notes after having received the Commissioner’s prior approval to make such payment and (iii) the Issuer has delivered to the Fiscal Agent an officer’s certificate stating that such merger, consolidation, sale, conveyance, transfer or other disposition complies with this paragraph and that all conditions precedent herein provided for relating to such transaction have been complied with. In the event of the assumption by a successor corporation of the obligations of the Issuer as provided in clause (i)(B) of the immediately preceding sentence, such successor corporation shall succeed to and be substituted for the Issuer hereunder and under the Fiscal Agency Agreement and all such obligations of the Issuer shall terminate.

9. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any entity whose underlying assets are considered to include “plan assets” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “plan assets” of a Plan or a plan subject to a Similar Law, may acquire this Note, unless the acquisition and holding of the Note is exempt under one or more of Prohibited Transaction Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Note shall constitute a representation by such person to the Issuer and the Fiscal Agent that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring the Note on behalf of or with “plan assets” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of the Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of the Notes set forth in this paragraph 9 are in addition to those otherwise set forth in Section 6 of the Fiscal Agency Agreement and under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

10. Subordination . (a) The Issuer agrees, and each Note holder by accepting a Note agrees, that the indebtedness evidenced by the Notes is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

 

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(b) Upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property, the priority of claims of Note holders shall be determined in accordance with Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as may be hereafter amended from time to time, “ Section 645.68 ”). In a proceeding commenced under Chapter 645 of the Wisconsin Statutes, claims for interest on, principal of, or any redemption payment with respect to, the Notes constitute Class 10 claims under Section 645.68, as currently in effect. If the Commissioner approves a payment of principal of or interest on the Notes in an amount that is less than the full amount of principal of and interest on the Notes then scheduled to be paid in respect of the Notes, payment of such partial amount shall be made pro rata among Note holders as their interests may appear.

(c) If a distribution is made to Note holders that, because of this paragraph, should not have been made to them, the Note holders who receive the distribution shall pay it over to the Issuer.

(d) The Issuer shall promptly notify the Fiscal Agent and the Paying Agent of any facts known to the Issuer that would cause a payment of principal of or interest on the Notes to violate paragraph 10(b).

(e) This paragraph defines the relative rights of Note holders, on the one hand, and holders of any other claims, on the other hand. Nothing in this Note or the Fiscal Agency Agreement shall ( i ) impair, as between the Issuer and Note holders, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on the Notes in accordance with their terms; ( ii ) affect the relative rights of Note holders and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or ( iii ) prevent the Fiscal Agent or any Note holder from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to Note holders.

(f) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by the Notes shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Fiscal Agency Agreement.

(g) Each holder of Notes, by acceptance thereof, authorizes and directs the Fiscal Agent on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.

As used herein, “ Indebtedness ” of the Issuer shall mean ( i ) all existing or future indebtedness of the Issuer for borrowed money; ( ii ) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; ( iii ) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause

 

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another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; and ( iv ) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, the Notes would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, the Notes shall not constitute Indebtedness. Any other surplus or contribution notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, the Notes. Any surplus or contribution notes or similar obligations of Ambac Assurance Corporation will rank pari passu with the Notes unless the terms thereof expressly state that such notes are subordinated to the Notes.

As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the Issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to the Notes. Under Section 645.68 as currently in effect, such other claims include: ( i ) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the insurer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; ( ii ) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii)  other than the federal government; ( iii ) claims of the federal government not included under clause (ii) , interest at the legal rate compounded annually on all claims in the class under this clause (iii) , and on all claims of the federal government in the class under clause (ii) , from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; ( iv ) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; ( v ) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided, however, that if there are no claims of the federal government, the claims in clause (v)  have priority over all claims under clauses (ii)  to (xi) ; (vi)  claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii) ; (vii)  all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture,

 

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but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; ( viii ) claims based solely on judgments; ( ix ) interest at the legal rate compounded annually on all claims in the classes under clauses (i)  to ( viii ), except for claims of the federal government in the classes under clauses (ii)  and ( iii ), from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and ( x ) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (viii) .

11. Delivery of Certain Information . For so long as any of the Notes remain Outstanding or any amount remains unpaid on any of the Notes, the Issuer shall, in accordance with Rule 144A, comply with the terms of the agreements set forth in Section 8 of the Fiscal Agency Agreement.

12. Mutilation, Destruction, Loss, etc. In case this Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and upon the Issuer’s request the Fiscal Agent shall authenticate and deliver a new Note, having a number not contemporaneously outstanding, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest has been paid on this Note, in exchange and substitution for this Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Note. In the case where this Note is destroyed, lost or stolen, the applicant for a substituted Note shall furnish to the Issuer such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of this Note, the applicant shall also furnish to the Issuer reasonable satisfactory evidence of the destruction, loss or theft of this Note and of the ownership thereof; provided , however , that if the registered holder hereof is, in the reasonable judgment of the Issuer, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new Note in lieu of and substitution for this Note. The Fiscal Agent shall authenticate any such substituted Note and deliver the same only upon written request or authorization of the Issuer. Upon the issuance of any substituted Note, the Issuer and the Fiscal Agent may require the payment by the registered holder thereof of a sum sufficient to cover fees and expenses connected therewith. In case this Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute Note, pay or authorize the payment of the same (without surrender thereof except if this Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 12 as hereinabove set forth.

13. Amendments . Section 11 of the Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and with the consent of the holders of not less than a majority in aggregate principal amount of the Notes then Outstanding or by written consent of such percentage in aggregate principal amount of the Notes then Outstanding, the Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, modify, amend or supplement the Fiscal Agency Agreement or the terms of the Notes or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver or other action shall be conclusive and binding on the holder of this Note and on all future holders of this Note

 

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and of any Note issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Note. The Fiscal Agency Agreement and the terms of the Notes may, with the prior approval of the Commissioner, be modified or amended by the Issuer and the Fiscal Agent, without the consent of any holders of Notes, for the purpose of (a) adding to the covenants of the Issuer for the benefit of the holders of Notes, or (b) surrendering any right or power conferred upon the Issuer, or (c) securing the Notes, or (d) evidencing the succession of another corporation to the Issuer and the assumption by such successor of the covenants and obligations of the Issuer herein and in the Fiscal Agency Agreement as permitted by the Notes and the Fiscal Agency Agreement, or (e) modifying the restrictions on, and procedures for, resale and other transfers of the Notes to the extent required by any change in applicable law or regulation (or the interpretation thereof) or in practices relating to the resale or transfer of restricted securities generally, or (f) accommodating the issuance, if any, of Notes in book-entry or certificated form and matters related thereto which do not adversely affect the interest of any Note holder in any material respect, or (g) curing any ambiguity or correcting or supplementing any defective provision contained herein or in the Fiscal Agency Agreement in a manner which does not adversely affect the interest of any Note holder in any material respect, or (h) effecting any amendment which the Issuer and the Fiscal Agent may determine is necessary or desirable and which shall not adversely affect the interest of any Note holder, to all of which each holder of any Note, by acceptance thereof, consents.

14. Remedies . Holders of Notes may enforce the Fiscal Agency Agreement or the Notes only in the manner set forth below.

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), the Notes will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the Fiscal Agent or any holder of the Notes, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Note or the Fiscal Agency Agreement, in no event shall the Fiscal Agent or any holder of the Notes be entitled to declare the Notes to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves in whole or in part a payment of any interest on or principal of, or any redemption payment with respect to, any Notes and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of the Fiscal Agent or any holder of Notes. In the event that the Issuer fails to perform any of its other obligations hereunder or under the Fiscal Agency Agreement, each holder of the Notes may pursue any available remedy to enforce the performance of any provision of such Notes or the Fiscal Agency Agreement; provided , however , that such remedy shall in no event include the right to declare the Notes immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law. A delay or omission by any Note holder in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder or under the Fiscal Agency Agreement and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

 

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(c) Notwithstanding any other provision of this Note or the Fiscal Agency Agreement, the right of any holder of Notes to receive payment of the principal of and interest on such holder’s Notes on or after the respective scheduled payment or scheduled maturity dates expressed in such Notes, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to such payment on such dates having received the approval of the Commissioner pursuant to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

15. Optional Redemption . (a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, the Notes are subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of the Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the aggregate principal amount of the Notes to be redeemed plus any accrued but unpaid interest (including interest on interest); provided , that the Issuer shall not redeem any Notes unless it also redeems a pro rata amount of any other surplus notes of the Issuer outstanding at the time of such redemption. The Notes may not be redeemed at the option of any Note holder. Notice of any redemption pursuant to this paragraph 15(a) will be given to holders of the Notes as set forth below. Interest installments due on this Note on or prior to a redemption date will be payable to the holder of this Note of record at the close of business on the relevant record date, all as provided in the Fiscal Agency Agreement.

(b) In the case of any partial redemption of Notes, each Outstanding Note shall be redeemed pro rata ; provided that if at the time of redemption such Notes are registered as a Global Note, the U.S. Depositary for such Global Note shall determine, in accordance with its procedures, the principal amount of such Notes to be redeemed held by each holder of a beneficial interest in such Global Note.

(c) Notices to redeem Notes shall be given to holders of Notes in writing mailed, first-class postage prepaid, to each holder of registered Notes, or portions thereof, so to be redeemed, at such holder’s address as it appears in the securities register. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holders of Notes in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer or by the Fiscal Agent on behalf of and at the instruction of the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Neither the failure to give notice nor any defect in any notice given to any particular holder of a Note shall affect the sufficiency of any notice with respect to other Notes. Notices to redeem Notes shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of the Notes to be redeemed (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in

 

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said notice, and that on and after said date interest thereon will cease to accrue if the Notes are so redeemed. In addition, in the case of a partial redemption, such notice shall specify the Notes called for redemption and the aggregate principal amount of the Notes to remain Outstanding after the redemption.

(d) If notice of redemption has been given in the manner set forth in paragraph 15(c) hereof, the Notes so to be redeemed shall be payable in full on the date specified in such notice and upon presentation and surrender of the Notes at the place or places specified in such notice, the Notes shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, if monies for the redemption of Notes called for redemption shall have been made available at the Corporate Trust Office of the Fiscal Agent for redemption on the redemption date, the Notes called for redemption shall cease to bear interest, and the only right of the holders with respect to such Notes or portion thereof being redeemed shall be to receive payment of the Redemption Price. If monies for the redemption of the Notes are not made available for payment until after the redemption date, the Notes called for redemption shall not cease to bear interest until such monies have been so made available.

(e) Any Note which is to be redeemed only in part shall be surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer and the Fiscal Agent duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver to the holder of such Note without service charge, a new registered Note or Notes, of any authorized denomination as requested by such holder, and as permitted by Section 1(d) of the Fiscal Agency Agreement, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.

16. Obligations Not Impaired . No reference herein to the Fiscal Agency Agreement and no provision of this Note or of the Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, subject to the Payment Restrictions, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

17. GOVERNING LAW . THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE PARTIES TO THE FISCAL AGENCY AGREEMENT AND HOLDERS OF THIS NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

 

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EXHIBIT B

FORM OF GLOBAL NOTE

THIS 5.1% SURPLUS NOTE SCHEDULED TO MATURE ON JUNE 7, 2020 (THIS “ NOTE ”) (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ACCORDANCE WITH THAT CERTAIN FISCAL AGENCY AGREEMENT BY AND BETWEEN THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION AND THE BANK OF NEW YORK MELLON (TOGETHER WITH ITS PERMITTED SUCCESSORS AND ASSIGNS, THE “ FISCAL AGENT ”), DATED AS OF JULY 19, 2010 (AS IT MAY BE DULY AMENDED FROM TIME TO TIME, THE “ FISCAL AGENCY AGREEMENT ”), COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE OFFICE OF THE FISCAL AGENT. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM SUCH REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “RULE 144A”) OR REGULATION S UNDER THE SECURITIES ACT (TOGETHER WITH ANY SUCCESSOR PROVISION THERETO, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”).

UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“ DTC ”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE FISCAL AGENCY AGREEMENT, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 6(C) OF THE FISCAL AGENCY AGREEMENT. BENEFICIAL INTERESTS IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 6(C) OF THE FISCAL AGENCY AGREEMENT.

 

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[INCLUDE IF NOTE IS A TEMPORARY REGULATION S GLOBAL NOTE — THIS NOTE IS A TEMPORARY REGULATION S (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS SUCH MAY BE HEREAFTER AMENDED FROM TIME TO TIME, “ REGULATION S ”) GLOBAL NOTE WITHIN THE MEANING OF THE FISCAL AGENCY AGREEMENT REFERRED TO HEREINAFTER. INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE 40-DAY RESTRICTED PERIOD REFERRED TO IN SECTION l(b)(iii) OF THE FISCAL AGENCY AGREEMENT, AND NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN THE PERMANENT REGULATION S GLOBAL NOTE EXCEPT AFTER THE DATE OF TERMINATION OF THE RESTRICTED PERIOD.]

[ INCLUDE IF NOTE IS A RESTRICTED GLOBAL NOTE OR NOTE ISSUED IN EXCHANGE THEREFOR (UNLESS, PURSUANT TO SECTION 6(g) OF THE FISCAL AGENCY AGREEMENT, THE ISSUER DETERMINES THAT THE LEGEND MAY BE REMOVED) – THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“ QUALIFIED INSTITUTIONAL BUYER ”) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT TO THE DELIVERY OF REASONABLY SATISFACTORY EVIDENCE TO THE ISSUER ESTABLISHING SUCH EXEMPTION, WHICH MAY INCLUDE AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS.]

IF THIS NOTE WAS SOLD IN AN “OFFSHORE TRANSACTION” IN ACCORDANCE WITH RULE 904 OF REGULATION S, BY ITS ACCEPTANCE OF THE NOTES, EACH HOLDER OF THE NOTES SHALL BE DEEMED TO HAVE REPRESENTED TO THE ISSUER THAT SUCH HOLDER IS NOT A “U.S. PERSON” AND IS NOT PURCHASING THE NOTES IN THE UNITED STATES OR ANY OF ITS TERRITORIES OR POSSESSIONS; OR IS A QUALIFIED INSTITUTIONAL BUYER.

ANY PERSON ACQUIRING THIS NOTE IS DEEMED TO MAKE A REPRESENTATION TO THE ISSUER AND THE FISCAL AGENT AS SET FORTH IN PARAGRAPH 9 HEREOF.

ALL PAYMENTS OF PRINCIPAL AND INTEREST ON THIS NOTE MAY ONLY BE MADE WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF INSURANCE OF THE STATE OF WISCONSIN OR ANY SUCCESSOR THERETO (THE “ COMMISSIONER ”).

 

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NEITHER THE ISSUER NOR ANY OF ITS AFFILIATES (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) THAT ACQUIRES NOTES ARE PERMITTED TO SELL SUCH NOTES.

 

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THE SEGREGATED ACCOUNT OF

AMBAC ASSURANCE CORPORATION

5.1% Surplus Note scheduled to mature on June 7, 2020

 

CUSIP NO.:               ISIN NO.:   COMMON CODE:            

 

      

No. R        

   $            

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION, a Wisconsin domiciled financial guaranty insurance corporation (and any successor in interest thereto, the “ Issuer ”), for value received, hereby promises to pay, subject to the Payment Restrictions (as defined in paragraph 1 of the reverse side of this Note), to Cede & Co., or registered assigns, the principal sum of                      United States dollars ($            ), or such other amount (not to exceed [ ] dollars ($[ ]) when taken together with all of the Issuer’s Notes issued and outstanding in definitive certificated form or in the form of another Global Note) as may from time to time represent the principal amount of the Issuer’s Notes in respect of which beneficial interests are held through the U.S. Depositary in the form of a [Restricted] [Temporary] [Permanent] [Regulation S] Global Note, on June 7, 2020 (the “ Scheduled Maturity Date ”), and to pay interest thereon, subject to the Payment Restrictions, including the approval of the Commissioner, from July 19, 2010 or from the most recent Scheduled Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 7 in each year and on the date the Notes are scheduled to mature, commencing June 7, 2011 (each, a “ Scheduled Interest Payment Date ”), at the rate of 5.1% per annum, until the principal hereof is paid or duly provided for. Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of the Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 15 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order). As specified on the reverse hereof, all payments of principal of or interest on this Note may be made only with the prior approval of the Commissioner. The interest so payable, and punctually paid or duly provided for, on any Scheduled Interest Payment Date shall be paid, in accordance with the terms of the Fiscal Agency Agreement hereinafter referred to, to the person (the “ registered holder ”) in whose name this Note (or one or more predecessor Notes) is registered at the close of business on May 20 (whether or not a Business Day, as defined herein), as the case may be (each, a “ Regular Record Date ”), next preceding such Scheduled Interest Payment Date. Interest on the Notes shall be calculated on the basis of a 360-day year of twelve months of 30 days each. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of the Notes not less than 15 days prior to such special record date.

 

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Principal of this Note shall be payable against surrender hereof at the Corporate Trust Office of the Fiscal Agent hereinafter referred to and at the offices of such other Paying Agents as the Issuer shall have appointed pursuant to the Fiscal Agency Agreement. Payments of principal of the Notes shall be made only against surrender of the Notes; provided that in the case of payment of only a portion of principal, the Issuer shall execute a new registered Note or Notes in aggregate principal amount equal to and in exchange for the remaining portion of the principal of the Note so surrendered. Payments of interest on this Note will be made, in accordance with the foregoing and subject to applicable laws and regulations, (i) by wire transfer of immediately available funds to an account maintained by the person entitled thereto with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the applicable scheduled payment date or scheduled maturity date hereof, of the payee’s account to which payment is to be made or (ii) if no such notice is given, by mailing a check on or before the scheduled payment date of such payment to the person entitled thereto at such person’s address appearing on the aforementioned register. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Notes of the payee’s account to which payment is to be made shall remain in effect with respect to any future payments with respect to such Notes payable to such holder. The Issuer agrees that until this Note has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the full principal of and interest remaining unpaid on this Note have been made available for payment and either paid or returned to the Issuer as provided herein, it will at all times maintain offices or agencies in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Notes as herein provided.

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

This Note may be executed by the Issuer by manual, facsimile or portable document format signatures, and such signatures may be executed on separate counterparts.

 

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Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, this Note shall not be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

Dated:            

 

THE SEGREGATED ACCOUNT OF AMBAC ASSURANCE CORPORATION,
By: Ambac Assurance Corporation, as Manager
By:  

 

Name:  
Title:  

This is one of the Notes referred to in the within-mentioned Fiscal Agency Agreement.

 

THE BANK OF NEW YORK MELLON as Fiscal

Agent

By:  

 

  Authorized Officer

 

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FORM OF REVERSE

1. General . This Note is one of a duly authorized issue of 5.1% Surplus Notes scheduled to mature on June 7, 2020 of the Issuer (herein called the “ Notes ”), unlimited in aggregate principal amount. The Issuer and The Bank of New York Mellon have entered into a Fiscal Agency Agreement, dated as of July 19, 2010 (such instrument, as it may be duly amended from time to time, is herein called the “ Fiscal Agency Agreement ”), which provides for the mechanism for issuing the Notes and, inter alia , sets forth certain duties of the Fiscal Agent in connection therewith. As used herein, the term “ Fiscal Agent ” includes any successor fiscal agent under the Fiscal Agency Agreement. Copies of the Fiscal Agency Agreement are on file and available for inspection at the Corporate Trust Office of the Fiscal Agent in the Borough of Manhattan, The City of New York. Holders of Notes are referred to the Fiscal Agency Agreement for a statement of the terms thereof, including those relating to transfer, payment, exchanges and certain other matters. The Fiscal Agent or any Paying Agent shall also act as Transfer Agent and securities registrar.

Capitalized definitional terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Fiscal Agency Agreement. The terms of the Notes include those stated in the Fiscal Agency Agreement. The Notes are subject to all such terms, and holders of the Notes are referred to the Fiscal Agency Agreement for a statement of such terms. Holders of Notes may enforce the Notes only in accordance with the Fiscal Agency Agreement.

The Notes are direct and unsecured obligations of the Issuer and, subject to the payment restrictions contained in paragraphs 4 and 10 hereof (the “ Payment Restrictions ”), are scheduled to mature on June 7, 2020.

Any reference herein to the term “scheduled maturity date” or other date for the payment of principal of the Notes shall include (i) the date, if any, fixed for redemption thereof in accordance with paragraph 15 hereof and (ii) the date upon which any state or federal agency obtains an order or grants approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer or the General Account (other than any Excluded Order).

2. Form of Notes . The Notes are issuable only in fully registered form without coupons.

3. Registration, Transfer and Exchange . The Issuer shall maintain, in the Borough of Manhattan, The City of New York, a Transfer Agent where Notes may be registered or surrendered for registration of transfer or exchange. The Issuer has initially appointed the Fiscal Agent at its Corporate Trust Office as its Transfer Agent. The Issuer shall cause the Transfer Agent to act as a securities registrar and shall cause to be kept at the office of the Transfer Agent a register in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and registration of transfers and exchanges of Notes. The Issuer reserves the right to vary or terminate the appointment of the Transfer Agent or to appoint additional or other Transfer Agents or to approve any change in the office through which any Transfer Agent acts; provided that there shall at all times be a Transfer Agent in the Borough of Manhattan, The City of New York. The Issuer shall cause written notice of any resignation, termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent shall act to be provided to holders of Notes.

 

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Subject to the restrictions set forth herein and in the Fiscal Agency Agreement, the transfer of a Note is registrable on the aforementioned register upon surrender of such Note at any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer duly executed by, the registered holder thereof or such holder’s attorney duly authorized in writing. Upon such surrender of this Note for registration of transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.

Subject to the restrictions set forth herein and in the Fiscal Agency Agreement, at the option of the registered holder upon request confirmed in writing, Notes may be exchanged for Notes of any authorized denominations and aggregate principal amount upon surrender of the Notes to be exchanged at the office of any Transfer Agent. Whenever any Notes are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Notes which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange shall be effected upon the Issuer being reasonably satisfied with the documents of title and identity of the person making the request and subject to the restrictions set forth in this Note and/or the Fiscal Agency Agreement and such reasonable regulations as the Issuer may from time to time agree with the Fiscal Agent.

Notes may be redeemed by the Issuer, in whole or in part, but only to the extent permitted by the Payment Restrictions, including the prior approval of the Commissioner, and in accordance with paragraph 15 hereof. In the event of a partial redemption, the Issuer shall not be required ( i ) to register the transfer of or exchange any Note during a period beginning at the opening of business 15 days before the date notice is given identifying the Notes to be redeemed, or ( ii ) to register the transfer or exchange of any Note, or portion thereof, called for redemption.

All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits, as the Notes surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Fiscal Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith, other than an exchange in connection with the partial redemption of a Note not involving any registration of a transfer.

Prior to due presentment of this Note for registration of transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name this Note is registered as the absolute owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer nor the Fiscal Agent nor any such agent shall be affected by notice to the contrary.

 

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4. Restrictions on Payment . (a) Notwithstanding anything to the contrary set forth herein or in the Fiscal Agency Agreement, any payment of principal of, interest on or any monies owing with respect to this Note, whether at the scheduled payment date or scheduled maturity date specified herein or otherwise, may be made only with the prior approval of the Commissioner. If the Commissioner does not approve the making of any payment of principal of or interest on this Note on the scheduled payment date or scheduled maturity date thereof, as specified herein, the scheduled payment date or scheduled maturity date, as the case may be, shall be extended and such payment, together with interest accrued with respect thereto as contemplated by the immediately following two sentences, shall be made by the Issuer on the next following Business Day (as defined below) on which the Issuer shall have the approval of the Commissioner to make such payment together with such interest. Interest will continue to accrue, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, on any such unpaid principal through the actual date of payment at the rate of interest stated on the face hereof. Interest will accrue, compounded on each anniversary of the original scheduled payment date, on interest (or any portion thereof) with respect to which the scheduled payment date has been extended, during the period of such extension, at the rate of interest per annum applicable to principal hereunder. If the Commissioner approves a payment of principal of or interest on the Notes in an amount that is less than the full amount of principal of and interest on the Notes then scheduled to be paid in respect of the Notes, payment of such partial amount shall be made pro rata among Note holders.

(b) Any payment of principal of or interest on any Note as to which the approval of the Commissioner has been obtained and which is not punctually paid or duly provided for on the scheduled payment date or scheduled maturity date thereof, as set forth herein (such payment being referred to as an “ Unpaid Amount ”), subject to the provisions of section 14(b), will forthwith cease to be payable to the registered holder of this Note on the relevant record date designated herein, and such Unpaid Amount, together with interest thereon accrued at the rate of interest per annum applicable to principal hereunder, compounded on each anniversary of the original scheduled payment date or scheduled maturity date, will instead be payable to the registered holder of this Note on a subsequent special record date. The Issuer shall fix the special record date and payment date for the payment of any Unpaid Amount. At least 15 days before the special record date, the Issuer shall mail to each holder of the Notes and the Fiscal Agent a notice that states the special record date, payment date and amount of interest or principal to be paid. On the payment date set forth in such notice, the Paying Agent shall pay the amount of interest or principal to be so paid to each holder of the Notes in the manner set forth in Section 4(a) of the Fiscal Agency Agreement.

5. Payment . (a) For so long as the Fiscal Agent is acting as a Paying Agent hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, or such other Paying Agent if the Fiscal Agent is no longer acting as a Paying Agent, in immediately available funds on or prior to 11:00 a.m., New York time, on each date on which a payment of principal of or any interest on this Note is payable, as set forth herein, such amounts, in U.S. dollars, as are necessary (with any amounts then held by the Fiscal Agent and available for the purpose) to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on this Note as set forth herein and in the Fiscal Agency Agreement. Payments of principal of or any interest on the Notes will be made ( i ) by wire

 

B-9


transfer of immediately available funds to an account maintained by the payee with a bank if such registered holder gives notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of the account to which payment is to be made or ( ii ) if no such notice is given, by mailing a check to the payee at the address reflected in the securities register maintained pursuant to Section 6 of the Fiscal Agency Agreement. Unless the designation of the payee’s account to which payment is to be made is revoked, any such designation made by such holder with respect to such Notes shall remain in effect with respect to any future payments with respect to such Notes payable to such holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 of the Fiscal Agency Agreement for the payment, subject to the Payment Restrictions, from funds so paid by the Issuer of the principal of and any interest on this Note. Any monies held in respect of this Note remaining unclaimed at the end of two years after such principal and such interest shall have become payable in accordance with the Payment Restrictions (whether at the Scheduled Maturity Date or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer may have to pay the principal of and interest on this Note, subject to the Payment Restrictions. To the extent that the Fiscal Agent is not acting as Paying Agent, references to the Fiscal Agent in this Section 5(a) shall include the Paying Agent in such capacity.

(b) In any case where the scheduled payment date or scheduled maturity date of any Note shall be at any place of payment a day on which banking institutions are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions in the applicable jurisdiction are not carrying out transactions in U.S. dollars or are authorized or obligated by law or executive order to close (a “ Business Day ”), with the same force and effect as if made on the scheduled payment date or scheduled maturity date thereof, and no interest shall accrue on the amount of such payment for the period after such date, if such payment is so made.

6. Duties and Taxes . The Issuer shall pay all stamp and other duties, if any, which may be imposed by the United States of America or any governmental entity or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Fiscal Agency Agreement or the initial issuance of this Note. All payments will be made by the Issuer without withholding or deduction for or on account for any present or future tax, duty, assessment or other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein, unless such withholding or deduction is required by law. The Issuer shall not be required to make any additional payment with respect to any withholding or deduction so required.

7. Covenants . For so long as any of the Notes remain Outstanding or any amount remains unpaid on any of the Notes,

 

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(a) Except with respect to transactions covered by paragraph 8 hereof, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, material rights (charter and statutory) and material franchises pursuant to the provisions of the Wisconsin Insurers Rehabilitation and Liquidation Act; provided , however , that the Issuer shall not be required to preserve any such right or franchise if the Rehabilitator or the Issuer’s Board of Directors, as applicable, shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and that the Issuer has used its reasonable best efforts to not disadvantage in any material respect the holders of the Notes.

(b) The Issuer will not be or become an open-end investment company, unit investment trust, face-amount certificate company or any other entity that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended (the “ Investment Company Act ”).

(c) (i) While the Issuer is subject to the Proceeding, the Rehabilitator will seek to, and (ii) while the Issuer is not subject to the Proceeding, the Issuer shall use its best efforts ( provided that such best efforts do not require the Issuer to raise additional capital or indebtedness) to, obtain the approval of the Commissioner for the payment by the Issuer of interest on and principal of the Notes on the scheduled payment dates or scheduled maturity dates thereof, and, in the event any such approval has not been obtained for any such payment at or prior to the scheduled payment date or scheduled maturity date thereof, as the case may be, to continue to use its best efforts (provided that such best efforts do not require the Issuer to raise additional capital or indebtedness) to obtain such approval promptly thereafter. Not less than 45 days prior to the scheduled payment date or scheduled maturity date thereof (excluding any such scheduled maturity date which arises as a result of the obtaining of an order or the granting of approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer), the Issuer will seek the approval of the Commissioner to make each payment of interest on and principal of the Notes. In addition, the Issuer shall notify in writing or cause to be notified in writing each holder of the Notes and the Fiscal Agent no later than five Business Days prior to the scheduled payment date for interest on or the scheduled maturity date for principal of any Note (excluding any such scheduled maturity date which arises as a result of the obtaining of an order or the granting of approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer) in the event that the Commissioner has not then approved the making of any such payment on such scheduled payment date or such scheduled maturity date, and thereafter, if such payment has been approved by the Commissioner, shall promptly notify in writing or cause to be notified in writing each holder of the Notes and the Fiscal Agent of such approval and of the fact that, notwithstanding such approval, the Issuer shall have failed to make any such payment on any such scheduled payment date or such scheduled maturity date.

(d) For any amounts due and payable under the Notes that are approved by the Commissioner in accordance with Section 4(a) of the Fiscal Agency Agreement and which are due and payable under the Secured Note dated as of March 24, 2010, from Ambac Assurance Corporation to the Issuer (the “ Secured Note ”) or the Aggregate Excess of Loss Reinsurance Agreement, dated as of March 24, 2010, by and between Ambac Assurance Corporation and the Issuer (the “ Aggregate Excess of Loss Reinsurance Agreement ”), as the case may be, the Issuer undertakes to demand payment under the Secured Note or the Aggregate Excess of Loss Reinsurance Agreement, as the case may be, against Ambac Assurance Corporation.

 

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8. Merger or Consolidation . For so long as any of the Notes remain Outstanding or any amounts remain unpaid on any of the Notes, the Issuer may merge or consolidate with or into any other corporation or sell, convey, transfer or otherwise dispose of all or substantially all of its assets to any person, firm or corporation, if ( i ) ( A ) in the case of a merger or consolidation, the Issuer is the surviving corporation or ( B ) in the case of a merger or consolidation where the Issuer is not the surviving corporation and in the case of any such sale, conveyance, transfer or other disposition, the successor corporation is either Ambac Assurance Corporation (or its successor) or a corporation organized and existing under the laws of the United States of America or a state thereof and such corporation expressly assumes by supplemental fiscal agency agreement all the obligations of the Issuer under the Notes and the Fiscal Agency Agreement, ( ii ) at the time of any such merger or consolidation, or such sale, conveyance, transfer or other disposition, the Issuer shall not have failed to make payment of interest on or principal of, or any redemption payment with respect to, the Notes after having received the Commissioner’s prior approval to make such payment and ( iii ) the Issuer has delivered to the Fiscal Agent an officer’s certificate stating that such merger, consolidation, sale, conveyance, transfer or other disposition complies with this paragraph and that all conditions precedent herein provided for relating to such transaction have been complied with. In the event of the assumption by a successor corporation of the obligations of the Issuer as provided in clause (i)(B) of the immediately preceding sentence, such successor corporation shall succeed to and be substituted for the Issuer hereunder and under the Fiscal Agency Agreement and all such obligations of the Issuer shall terminate.

9. ERISA . No employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or plan or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any entity whose underlying assets are considered to include “plan assets” of such employee benefit plans or arrangements (each, a “ Plan ”), or governmental, church or foreign plan subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“ Similar Law ”), and no person acting on behalf of or investing “plan assets” of a Plan or a plan subject to a Similar Law, may acquire this Note, unless the acquisition and holding of the Note is exempt under one or more of Prohibited Transaction Class Exemptions 96-23, 95-60, 91-38, 90-1 or 84-14 (or any amendment thereof) or Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or another applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code or, in the case of a governmental, church or foreign plan subject to Similar Law, such acquisition and holding do not violate any Similar Law. The acquisition by any person of this Note shall constitute a representation by such person to the Issuer and the Fiscal Agent that either (i) such person is not a Plan or a plan subject to Similar Law and is not acquiring the Note on behalf of or with “plan assets” of any Plan or any plan subject to Similar Law or (ii) its acquisition and holding of the Note or any interest therein are covered under an applicable exemption from the prohibitions under Section 406 of ERISA and Section 4975 of the Code. The restrictions on acquisitions of the Notes set forth in this paragraph 9 are in addition to those otherwise set forth in Section 6 of the Fiscal Agency Agreement and under applicable law or, in the case of a plan subject to Similar Law, do not violate such Similar Law.

10. Subordination . (a) The Issuer agrees, and each Note holder by accepting a Note agrees, that the indebtedness evidenced by the Notes is subordinated in right of payment, to the extent and in the manner provided in this paragraph, to the prior payment in full of all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined).

 

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(b) Upon any distribution to creditors of the Issuer in any rehabilitation, liquidation, conservation or dissolution or similar proceeding relating to the Issuer or its property, the priority of claims of Note holders shall be determined in accordance with Section 645.68 of the Wisconsin Statutes (together with any successor provision, and as may be hereafter amended from time to time, “ Section 645.68 ”). In a proceeding commenced under Chapter 645 of the Wisconsin Statutes, claims for interest on, principal of, or any redemption payment with respect to, the Notes constitute Class 10 claims under Section 645.68, as currently in effect. If the Commissioner approves a payment of principal of or interest on the Notes in an amount that is less than the full amount of principal of and interest on the Notes then scheduled to be paid in respect of the Notes, payment of such partial amount shall be made pro rata among Note holders as their interests may appear.

(c) If a distribution is made to Note holders that, because of this paragraph, should not have been made to them, the Note holders who receive the distribution shall pay it over to the Issuer.

(d) The Issuer shall promptly notify the Fiscal Agent and the Paying Agent of any facts known to the Issuer that would cause a payment of principal of or interest on the Notes to violate paragraph 10(b).

(e) This paragraph defines the relative rights of Note holders, on the one hand, and holders of any other claims, on the other hand. Nothing in this Note or the Fiscal Agency Agreement shall (i) impair, as between the Issuer and Note holders, the obligation of the Issuer which is, subject to the Payment Restrictions, absolute and unconditional to pay principal of and interest on the Notes in accordance with their terms; (ii) affect the relative rights of Note holders and creditors of the Issuer, other than holders of Policy Claims, Indebtedness or Prior Claims; or (iii) prevent the Fiscal Agent or any Note holder from exercising any available remedies upon a breach by the Issuer of its obligations hereunder, subject to the rights of holders of Policy Claims, Indebtedness or Prior Claims to receive distributions otherwise payable to Note holders.

(f) No right of any holder of Policy Claims, Indebtedness or Prior Claims to enforce the subordination of the indebtedness evidenced by the Notes shall be impaired by any act or failure to act by the Issuer or by its failure to comply with the terms of this Fiscal Agency Agreement.

(g) Each holder of Notes, by acceptance thereof, authorizes and directs the Fiscal Agent on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this paragraph and appoints the Fiscal Agent its attorney-in-fact for any and all such purposes.

As used herein, “ Indebtedness ” of the Issuer shall mean (i) all existing or future indebtedness of the Issuer for borrowed money; (ii) all existing or future indebtedness for borrowed money of other persons, the payment of which is guaranteed by the Issuer; (iii) all existing or future obligations of the Issuer under any agreement obligating the Issuer to cause

 

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another person to maintain a minimum level of net worth, or otherwise to ensure the solvency of such person; and (iv) all other claims or amounts owed, to the extent that the payment of principal of and interest on, or any redemption payment with respect to, the Notes would be required by law to be subordinated to the prior payment of any such claim or amount in the event of a distribution of claims pursuant to Section 645.68. Any indebtedness of the Issuer, which, by its express terms or other contract, is subordinated in right of payment to, or ranks equally with, the Notes shall not constitute Indebtedness. Any other surplus or contribution notes or similar obligations of the Issuer shall not constitute Indebtedness and will rank pari passu with, or be subordinated to, the Notes. Any surplus or contribution notes or similar obligations of Ambac Assurance Corporation will rank pari passu with the Notes unless the terms thereof expressly state that such notes are subordinated to the Notes.

As used herein, “ Policy Claims ” shall mean all existing or future claims of policyowners, beneficiaries and insureds arising from and within the coverage of, and not in excess of the applicable limits of, any and all existing or future policies, endorsements, riders and other contracts of insurance, annuity contracts (including, without limitation, guaranteed investment contracts and funding agreements) issued, assumed or renewed by the Issuer on or prior to the date hereof or hereafter created, all claims under separate account agreements to the extent such claims are not fully discharged by the assets held by the Issuer in the applicable separate accounts and all claims of any guaranty corporation or association of the State of Wisconsin or any other jurisdiction against the Issuer.

As used herein, “ Prior Claims ” shall mean all other claims against the Issuer, which, in the event of a rehabilitation, liquidation, conservation, dissolution or similar proceeding relating to the Issuer pursuant to Section 645.68, would have priority over claims with respect to the Notes. Under Section 645.68 as currently in effect, such other claims include: ( i ) costs and expenses of administration during conservation, rehabilitation, liquidation or similar proceedings, including but not limited to actual and necessary costs of preserving or recovering the assets of the insurer, compensation for all services rendered in the liquidation; necessary filing fees, fees and mileage payable to witnesses, and reasonable attorney fees; ( ii ) all claims under policies for losses incurred, including third party claims and federal, state and local government claims, except the first $200 of losses otherwise payable to any claimant under this clause (ii)  other than the federal government; ( iii ) claims of the federal government not included under clause (ii) , interest at the legal rate compounded annually on all claims in the class under this clause (iii) , and on all claims of the federal government in the class under clause (ii) , from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; ( iv ) claims against the Issuer that are not under policies and that are for liability for bodily injury or for injury to or destruction of tangible property; ( v ) debts due to employees (with the exception of officers) for services performed, not to exceed $1,000 to each employee which have been earned within one year before the filing of the petition for liquidation, which shall be in lieu of any other similar priority authorized by law as to wages or compensation of employees, provided , however , that if there are no claims of the federal government, the claims in clause (v)  have priority over all claims under clauses (ii)  to (xi) ; (vi)  claims under non-assessable policies for unearned premiums and other premium refunds and the first $200 of loss excepted by the deductible provision under clause (ii) ; (vii)  all other claims, including claims of any state or local government, not falling within other clauses and claims, including those of any state or local governmental body, for a penalty or forfeiture,

 

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but only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby; ( viii ) claims based solely on judgments; ( ix ) interest at the legal rate compounded annually on all claims in the classes under clauses (i)  to (viii) , except for claims of the federal government in the classes under clauses (ii)  and (iii) , from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared; and ( x ) pursuant to subdivision (8) of Section 645.68, the remaining claims or portions of claims not already paid, with interest calculated in accordance with clause (viii) .

11. Delivery of Certain Information . For so long as any of the Notes remain Outstanding or any amount remains unpaid on any of the Notes, the Issuer shall, in accordance with Rule 144A, comply with the terms of the agreements set forth in Section 8 of the Fiscal Agency Agreement.

12. Mutilation, Destruction, Loss, etc. In case this Note shall become mutilated, defaced, destroyed, lost or stolen, the Issuer will execute and upon the Issuer’s request the Fiscal Agent shall authenticate and deliver a new Note, having a number not contemporaneously outstanding, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, bearing interest from the date to which interest has been paid on this Note, in exchange and substitution for this Note (upon surrender and cancellation thereof if mutilated or defaced) or in lieu of and substitution for this Note. In the case where this Note is destroyed, lost or stolen, the applicant for a substituted Note shall furnish to the Issuer such security or indemnity as may be reasonably required by it to save it harmless, and, in every case of destruction, loss or theft of this Note, the applicant shall also furnish to the Issuer reasonable satisfactory evidence of the destruction, loss or theft of this Note and of the ownership thereof; provided , however , that if the registered holder hereof is, in the reasonable judgment of the Issuer, an institution of recognized responsibility, such holder’s written agreement of indemnity shall be deemed to be satisfactory for the issuance of a new Note in lieu of and substitution for this Note. The Fiscal Agent shall authenticate any such substituted Note and deliver the same only upon written request or authorization of the Issuer. Upon the issuance of any substituted Note, the Issuer and the Fiscal Agent may require the payment by the registered holder thereof of a sum sufficient to cover fees and expenses connected therewith. In case this Note has matured or is about to mature and shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, subject to the Payment Restrictions, instead of issuing a substitute Note, pay or authorize the payment of the same (without surrender thereof except if this Note is mutilated or defaced) upon compliance by the registered holder with the provisions of this paragraph 12 as hereinabove set forth.

13. Amendments . Section 11 of the Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and with the consent of the holders of not less than a majority in aggregate principal amount of the Notes then Outstanding or by written consent of such percentage in aggregate principal amount of the Notes then Outstanding, the Issuer and the Fiscal Agent may, with the prior approval of the Commissioner, modify, amend or supplement the Fiscal Agency Agreement or the terms of the Notes or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver or other action shall be conclusive and binding on the holder of this Note and on all future holders of this Note

 

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and of any Note issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Note. The Fiscal Agency Agreement and the terms of the Notes may, with the prior approval of the Commissioner, be modified or amended by the Issuer and the Fiscal Agent, without the consent of any holders of Notes, for the purpose of ( a ) adding to the covenants of the Issuer for the benefit of the holders of Notes, or ( b ) surrendering any right or power conferred upon the Issuer, or ( c ) securing the Notes, or ( d ) evidencing the succession of another corporation to the Issuer and the assumption by such successor of the covenants and obligations of the Issuer herein and in the Fiscal Agency Agreement as permitted by the Notes and the Fiscal Agency Agreement, or ( e ) modifying the restrictions on, and procedures for, resale and other transfers of the Notes to the extent required by any change in applicable law or regulation (or the interpretation thereof) or in practices relating to the resale or transfer of restricted securities generally, or ( f ) accommodating the issuance, if any, of Notes in book-entry or certificated form and matters related thereto which do not adversely affect the interest of any Note holder in any material respect, or ( g ) curing any ambiguity or correcting or supplementing any defective provision contained herein or in the Fiscal Agency Agreement in a manner which does not adversely affect the interest of any Note holder in any material respect, or ( h ) effecting any amendment which the Issuer and the Fiscal Agent may determine is necessary or desirable and which shall not adversely affect the interest of any Note holder, to all of which each holder of any Note, by acceptance thereof, consents.

14. Remedies . Holders of Notes may enforce the Fiscal Agency Agreement or the Notes only in the manner set forth below.

(a) In the event that any state or federal agency shall obtain an order or grant approval for the rehabilitation, liquidation, conservation or dissolution of the Issuer (other than an Excluded Order), the Notes will upon the obtaining of such an order or the granting of such approval immediately mature in full without any action on the part of the Fiscal Agent or any holder of the Notes, with payment thereon being subject to the Payment Restrictions, and any restrictions imposed as a consequence of, or pursuant to, such proceedings. Notwithstanding any other provision of this Note or the Fiscal Agency Agreement, in no event shall the Fiscal Agent or any holder of the Notes be entitled to declare the Notes to immediately mature or otherwise be immediately payable.

(b) In the event that the Commissioner approves in whole or in part a payment of any interest on or principal of, or any redemption payment with respect to, any Notes and the Issuer fails to pay the full amount of such approved payment on the date such amount is scheduled to be paid, such approved amount will be immediately payable on such date without any action on the part of the Fiscal Agent or any holder of Notes. In the event that the Issuer fails to perform any of its other obligations hereunder or under the Fiscal Agency Agreement, each holder of the Notes may pursue any available remedy to enforce the performance of any provision of such Notes or the Fiscal Agency Agreement; provided , however , that such remedy shall in no event include the right to declare the Notes immediately payable, and shall in no circumstances be inconsistent with the provisions of applicable law. A delay or omission by any Note holder in exercising any right or remedy accruing as a result of the Issuer’s failure to perform its obligations hereunder or under the Fiscal Agency Agreement and the continuation thereof shall not impair such right or remedy or constitute a waiver of or acquiescence in such non-performance by the Issuer. To the extent permitted by law, no remedy is exclusive of any other remedy and all remedies are cumulative.

 

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(c) Notwithstanding any other provision of this Note or the Fiscal Agency Agreement, the right of any holder of Notes to receive payment of the principal of and interest on such holder’s Notes on or after the respective scheduled payment or scheduled maturity dates expressed in such Notes, or to bring suit for the enforcement of any such payment on or after such respective scheduled payment or scheduled maturity dates, in each case subject to such payment on such dates having received the approval of the Commissioner pursuant to the Payment Restrictions, including the approval of the Commissioner, is absolute and unconditional and shall not be impaired or affected without the consent of the holder.

15. Optional Redemption . (a) Subject to the Payment Restrictions, including the prior approval of the Commissioner, the Notes are subject to redemption, as a whole or in part, at the option of the Issuer at any time and from time to time, with no less than 30 and no more than 60 days’ prior written notice to the holder of the Note, at a redemption price (the “ Redemption Price ”) equal to 100% of the aggregate principal amount of the Notes to be redeemed plus any accrued but unpaid interest (including interest on interest); provided , that the Issuer shall not redeem any Notes unless it also redeems a pro rata amount of any other surplus notes of the Issuer outstanding at the time of such redemption. The Notes may not be redeemed at the option of any Note holder. Notice of any redemption pursuant to this paragraph 15(a) will be given to holders of the Notes as set forth below. Interest installments due on this Note on or prior to a redemption date will be payable to the holder of this Note of record at the close of business on the relevant record date, all as provided in the Fiscal Agency Agreement.

(b) In the case of any partial redemption of Notes, each Outstanding Note shall be redeemed pro rata ; provided that if at the time of redemption such Notes are registered as a Global Note, the U.S. Depositary for such Global Note shall determine, in accordance with its procedures, the principal amount of such Notes to be redeemed held by each holder of a beneficial interest in such Global Note.

(c) Notices to redeem Notes shall be given to holders of Notes in writing mailed, first-class postage prepaid, to each holder of registered Notes, or portions thereof, so to be redeemed, at such holder’s address as it appears in the securities register. Such notice will be given once not more than 60 days nor less than 30 days prior to the date fixed for redemption. If by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice to the holders of Notes in the manner prescribed herein, then such notification in lieu thereof as shall be made by the Issuer or by the Fiscal Agent on behalf of and at the instruction of the Issuer shall constitute sufficient provision of such notice, if such notification shall, so far as may be practicable, approximate the terms and conditions of the mailed notice in lieu of which it is given. Neither the failure to give notice nor any defect in any notice given to any particular holder of a Note shall affect the sufficiency of any notice with respect to other Notes. Notices to redeem Notes shall specify the date fixed for redemption, the Redemption Price or the manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of the Notes to be redeemed (or portion thereof in the case of a partial redemption), that interest accrued to the date fixed for redemption (unless the date of redemption is a Scheduled Interest Payment Date) will be paid as specified in

 

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said notice, and that on and after said date interest thereon will cease to accrue if the Notes are so redeemed. In addition, in the case of a partial redemption, such notice shall specify the Notes called for redemption and the aggregate principal amount of the Notes to remain Outstanding after the redemption.

(d) If notice of redemption has been given in the manner set forth in paragraph 15(c) hereof, the Notes so to be redeemed shall be payable in full on the date specified in such notice and upon presentation and surrender of the Notes at the place or places specified in such notice, the Notes shall be paid and redeemed by the Issuer at the places and in the manner and currency herein specified and at the Redemption Price. From and after the redemption date, if monies for the redemption of Notes called for redemption shall have been made available at the Corporate Trust Office of the Fiscal Agent for redemption on the redemption date, the Notes called for redemption shall cease to bear interest, and the only right of the holders with respect to such Notes or portion thereof being redeemed shall be to receive payment of the Redemption Price. If monies for the redemption of the Notes are not made available for payment until after the redemption date, the Notes called for redemption shall not cease to bear interest until such monies have been so made available.

(e) Any Note which is to be redeemed only in part shall be surrendered with, if the Issuer or the Fiscal Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Issuer and the Fiscal Agent duly executed by, the holder thereof or such holder’s attorney duly authorized in writing, and the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver to the holder of such Note without service charge, a new registered Note or Notes, of any authorized denomination as requested by such holder, and as permitted by Section 1(d) of the Fiscal Agency Agreement, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.

16. Obligations Not Impaired . No reference herein to the Fiscal Agency Agreement and no provision of this Note or of the Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, subject to the Payment Restrictions, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

17. GOVERNING LAW . THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN. THE COMMISSIONER’S EXERCISE OF REGULATORY AUTHORITY, INCLUDING APPROVAL OF PAYMENTS ON THIS NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WISCONSIN (OR, IF THE COMMISSIONER IS NO LONGER THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER, THE LAW OF SUCH JURISDICTION OF THE PRIMARY REGULATOR OF THE FINANCIAL CONDITION OF THE ISSUER), AND THE PARTIES TO THE FISCAL AGENCY AGREEMENT AND HOLDERS OF THIS NOTE SHALL SUBMIT ANY DISPUTES RELATED TO THE EXERCISE OF SUCH REGULATORY AUTHORITY TO THE EXCLUSIVE JURISDICTION OF THE CIRCUIT COURT IN DANE COUNTY, WISCONSIN, OR, SO LONG AS ANY PROCEEDING IS PENDING IN WISCONSIN AS TO THE ISSUER UNDER CHAPTER 645 OF THE WISCONSIN STATUTES, THEN TO THAT CASE AND COURT.

 

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EXHIBIT C-1

FORM OF CERTIFICATE

FOR EXCHANGE OF RESTRICTED

CERTIFICATED NOTE

(Exchanges pursuant to § 6(b)(i)

of the Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be duly amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement.

This letter relates to $             principal amount of Restricted Certificated Notes held in definitive form by [insert name of holder] (the “Holder”). The Holder has requested an exchange of such Notes.

In connection with such request and in respect of such Notes, the Holder does hereby certify that such Notes are owned by the Holder and are being exchanged without transfer.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

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The following signature must be guaranteed by an “eligible guarantor institution” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Holder]
By:  

 

Name:  
Title:  

Dated:             ,             

 

cc: The Segregated Account of Ambac Assurance Corporation

 

C-1-2


EXHIBIT C-2

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED CERTIFICATED

NOTE TO PERMANENT REGULATION S GLOBAL NOTE

(Transfers Pursuant to § 6(b)(ii)

of the Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
       Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be duly amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement.

The undersigned (the “ Transferor ”) has requested a transfer of $            principal amount of Restricted Certificated Notes to a person who will take delivery thereof in the form of an equal principal amount of Notes evidenced by the Permanent Regulation S Global Note (CUSIP No.            ).

In connection with such request and in respect of such Notes, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 904 or Rule 144 under the United States Securities Act of 1933, as amended (the “Act”), and accordingly the Transferor does hereby further certify that:

(1) if the transfer has been effected pursuant to Rule 904:

(A) the offer of the Notes was not made to a person in the United States;

(B) either:

(i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

(ii) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;

 

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(C) no directed selling efforts have been made in contravention of the requirements of Rule 904 of Regulation S; and

(D) the transaction is not part of a plan or scheme to evade the registration requirements of the Act.

(2) if the transfer has been effected pursuant to Rule 144, the Notes have been transferred in a transaction permitted by Rule 144.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. Terms used in this certificate and not otherwise defined in the Fiscal Agency Agreement have the meanings set forth in Regulation S under the Act.

The following signature must be guaranteed by an “eligible guarantor institution” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:             ,             

 

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT C-3

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED CERTIFICATED

NOTE TO RESTRICTED GLOBAL SECURITY

(Transfers Pursuant to § 6(b)(ii)

of the Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be duly amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement.

The undersigned (the “ Transferor ”) has requested a transfer of $         principal amount of Restricted Certificated Notes to a person that will take delivery thereof in the form of an equal principal amount of Notes evidenced by the Restricted Global Note (CUSIP No             ).

In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended, and, accordingly, the Transferor does hereby further certify that the Notes are being transferred to a person that the Transferor reasonably believes is purchasing the Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

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The following signature must be guaranteed by an “eligible guarantor institution” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:             ,             

 

cc: The Segregated Account of Ambac Assurance Corporation

 

C-3-2


EXHIBIT D

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED GLOBAL

NOTE TO TEMPORARY REGULATION S GLOBAL NOTE

(Transfers Pursuant to § 6(c)(ii)

of the Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be duly amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement.

This letter relates to $         principal amount of Notes which are evidenced by the Restricted Global Note (CUSIP No.             ) and held with the U.S. Depositary in the name of [insert name of transferor] (the “ Transferor ”). The Transferor has requested a transfer of such beneficial interest in the Notes to a person who will take delivery thereof in the form of an equal principal amount of Notes evidenced by the Temporary Regulation S Global Note (CUSIP No.            ), which amount, immediately after such transfer, is to be held with the U.S. Depositary through Euroclear or Clearstream Banking or both (Common Code            ).

In connection with such request and in respect of such Notes, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 904 under the United States Securities Act of 1933, as amended (the “ Act ”), and accordingly the Transferor does hereby further certify that:

(1) the offer of the Notes was not made to a person in the United States;

(2) either:

(A) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

(B) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;

 

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(3) no directed selling efforts have been made in contravention of the requirements of Rule 904 of Regulation S;

(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Act; and

(5) upon completion of the transaction, the beneficial interest being transferred as described above was held with the U.S. Depositary through Euroclear or Clearstream Banking or both (Common Code             ).

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. Terms used in this certificate and not otherwise defined in the Fiscal Agency Agreement have the meanings set forth in Regulation S under the Act.

The following signature must be guaranteed by an “eligible guarantor institution” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:             ,             

 

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT E

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM RESTRICTED GLOBAL

NOTE TO PERMANENT REGULATION S GLOBAL NOTE

(Transfers Pursuant to § 6(c)(iii)

of the Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement.

This letter relates to $         principal amount of Notes which are evidenced by the Restricted Global Note (CUSIP No.             ) and held with the U.S. Depositary in the name of [insert name of transferor] (the “ Transferor ”). The Transferor has requested a transfer of such beneficial interest in the Notes to a person that will take delivery thereof in the form of an equal principal amount of Notes evidenced by the Permanent Regulation S Global Note (CUSIP No.            ).

In connection with such request and in respect of such Securities, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 904 or Rule 144 under the United States Securities Act of 1933, as amended (the “Act”), or any other exemption from registration under the Act, and accordingly the Transferor does hereby further certify that:

(1) if the transfer has been effected pursuant to Rule 904:

(A) the offer of the Notes was not made to a person in the United States;

(B) either:

(i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

 

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(ii) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

(C) no directed selling efforts have been made in contravention of the requirements of Rule 904 of Regulation S; and

(D) the transaction is not part of a plan or scheme to evade the registration requirements of the Act;

(2) if the transfer has been effected pursuant to Rule 144, the Notes have been transferred in a transaction permitted by Rule 144; or

(3) if such transfer has been effected pursuant to any other exemption under the Act, the Notes have been transferred in a transaction permitted by such exemption (and the Transferor has provided a certification to that effect and if the Fiscal Agent or the Issuer so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to compliance with the restrictions contained in the legend set forth on the security).

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer. Terms used in this certificate and not otherwise defined in the Fiscal Agency Agreement have the meanings set forth in Regulation S under the Act.

The following signature must be guaranteed by an “eligible guarantor institution” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:             ,             

 

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT F

FORM OF TRANSFER CERTIFICATE

FOR TRANSFER FROM TEMPORARY REGULATION S GLOBAL NOTE TO

RESTRICTED GLOBAL NOTE

(Transfers Pursuant to § 6(c)(iv)

of the Fiscal Agency Agreement)

The Bank of New York Mellon

    as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement.

This letter relates to $         principal amount of Notes which are evidenced by the Temporary Regulation S Global Note (CUSIP No.            ) and held with the U.S. Depositary through Euroclear or Clearstream Banking or both (Common Code             ) in the name of [insert name of transferor] (the “ Transferor ”). The Transferor has requested a transfer of such beneficial interest in Notes to a person that will take delivery thereof in the form of an equal principal amount of Notes evidenced by the Restricted Global Note (CUSIP No.             ).

In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A under the Act and, accordingly, the Transferor does hereby further certify that the Notes are being transferred to a person that the Transferor reasonably believes is purchasing the Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

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The following signature must be guaranteed by an “eligible guarantor institution” meeting the reasonable requirements of the Fiscal Agent and Paying Agent, which reasonable requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Fiscal Agent and Paying Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

[Insert Name of Transferor]
By:  

 

Name:  
Title:  

Dated:             ,             

 

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT G

FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP

 

To: [Euroclear Bank S.A./N.V., as operator of the Euroclear System] OR

[Clearstream Banking, société anonyme ]

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Ladies and Gentlemen:

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement. We are the beneficial owner of $         principal amount of Notes issued under the Fiscal Agency Agreement and represented by a Regulation S Temporary Global Note (as defined in the Fiscal Agency Agreement).

We hereby certify as follows:

[ CHECK A OR B AS APPLICABLE . ]

 

  ¨   A. We are a non-U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended).

 

  ¨   B. We are a U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended) that purchased the Notes in a transaction that did not require registration under the Securities Act of 1933, as amended.

 

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You, the Issuer and the Fiscal Agent are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

Very truly yours,
[NAME OF BENEFICIAL OWNER]
By:  

 

Name:  
Title:  
Address:  

Date:             ,             

 

cc: The Segregated Account of Ambac Assurance Corporation

 

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EXHIBIT H

FORM OF RULE 144 CERTIFICATE

The Bank of New York Mellon

     as Fiscal Agent

101 Barclay Street, Floor 8W,

New York, New York 10286

 

  Re: The Segregated Account of Ambac Assurance Corporation, 5.1%
     Surplus Notes scheduled to mature on June 7, 2020 (the “Notes”)

Reference is hereby made to the Fiscal Agency Agreement, dated as of July 19, 2010 (as it may be amended from time to time, the “ Fiscal Agency Agreement ”), between The Segregated Account of Ambac Assurance Corporation, as Issuer, and The Bank of New York Mellon, as Fiscal Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Fiscal Agency Agreement.

The undersigned (the “ Transferor ”) has requested a transfer of Restricted Notes to a person who will take delivery thereof without the Legend on such Restricted Notes. The Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 144 under the United States Securities Act of 1933, as amended (the “ Act ”), and accordingly the Transferor does hereby further certify that the Notes have been transferred in a transaction permitted by Rule 144.

 

Very truly yours,
[NAME OF BENEFICIAL OWNER]
By:  

 

Name:  
Title:  
Address:  

Date:            ,            

 

cc: The Segregated Account of Ambac Assurance Corporation

 

H-1

Exhibit 10.4

[ Form of Amended and Restated Restricted Stock Unit Award Letter ]

AMBAC FINANCIAL GROUP, INC.

AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT

[INSERT DATE]

WHEREAS, [                    ] (the “Participant”) was granted a Full Value Award under the Ambac Financial Group, Inc. Incentive Compensation Plan (the “Plan”) in the form of restricted stock units and the Award became effective as of [ insert date ] (the “Grant Date”).

NOW THEREFORE, the Award shall be subject to the following terms and conditions (sometimes referred to as this “Agreement”).

1. Defined Terms . Capitalized terms used in this Agreement which are not otherwise defined herein shall have the meaning specified in the Plan.

2. Grant of Restricted Stock Units . Subject to the terms of this Agreement and the Plan, effective as of the Grant Date the Participant is hereby granted             restricted stock units (the “Restricted Stock Units”). This Award contains the right to dividend equivalent units (“Dividend Equivalent Units”) as described in paragraph 3. Each Restricted Stock Unit shall become vested as described in paragraphs 4 and 5 and each vested Restricted Stock Unit shall be settled in accordance with paragraph 6.

3. Dividend Equivalent Units . The Participant shall be entitled to Dividend Equivalent Units in accordance with the following:

 

  (a) If a dividend with respect to shares of Common Stock is payable in cash, then, as of the applicable dividend payment date, the Participant shall be credited with that number of Dividend Equivalent Units equal to (i) the cash dividend payable with respect to a share of Common Stock, multiplied by (ii) the number of Restricted Stock Units outstanding (i.e., the number of Restricted Stock Units granted hereunder less the number of such Restricted Stock Units that have settled in accordance with Section 6 below) on the applicable dividend record date, divided by (iii) the Fair Market Value of a share of Common Stock on the dividend payment date.

 

  (b) If a dividend with respect to shares of Common Stock is payable in shares of Common Stock, then, as of the dividend payment date, the Participant shall be credited with that number of Dividend Equivalent Units equal to (i) the number of shares Common Stock distributed in the dividend with respect to a share of Common Stock, multiplied by (ii) the number of Restricted Stock Units outstanding on the applicable dividend record date.


Dividend Equivalent Units shall be subject to the same vesting provisions as the Restricted Stock Units to which they relate and shall be settled in accordance with paragraph 6. No Dividend Equivalent Units shall be credited with respect to previously credited Dividend Equivalent Units.

4. Vesting and Forfeiture of Restricted Stock Units and Dividend Equivalent Units . All Restricted Stock Units and Dividend Equivalent Units shall be unvested unless and until they become vested and nonforfeitable in accordance with this paragraph 4 or paragraph 5. Subject to the terms and conditions of this Agreement and the Plan, one-half (1/2) of the Restricted Stock Units and associated Dividend Equivalent Units awarded hereunder shall vest on the Grant Date and one-half (1/2) of the Restricted Stock Units and associated Dividend Equivalent Units awarded hereunder shall vest on the first anniversary of the Grant Date. The Grant Date and the first anniversary of the Grant Date are sometimes referred to herein as a “Vesting Date”. Notwithstanding the foregoing, if the Participant’s termination of employment with Ambac Financial Group, Inc. (“the Company”) and its Subsidiaries (the “Termination Date”) occurs for any reason prior to the applicable Vesting Date, all Restricted Stock Units and associated Dividend Equivalent Units which are not vested upon the Participant’s Termination Date shall immediately expire and shall be forfeited and the Participant shall have no further rights with respect to such Restricted Stock Units or associated Dividend Equivalent Units. Restricted Stock Units and associated Dividend Equivalent Units which are vested on a Participant’s Termination Date shall immediately be forfeited and the Participant shall have no further rights with respect thereto in the event the Termination Date occurs as a result of the termination for “cause” of the Participant, and the Participant shall have no further rights with respect to thereto. As used herein, “cause” means (i) any act or omission by the Participant resulting in, or intending to result in, personal gain at the expense of the Company or any of its affiliates; (ii) the improper disclosure by the Participant of proprietary or confidential information of the Company or any of its affiliates; or (iii) misconduct by the Participant, including, but not limited to, fraud, intentional violation of, or negligent disregard for, the rules and procedures of the Company or its affiliates (including the code of business conduct), theft, violent acts or threats of violence, or possession of controlled substances on the property of the Company or any of its affiliates; provided, that the meaning of “cause” shall be (x) expanded to include any additional grounds for cause-based termination specified in any contract, policy or plan applicable to the Participant or (y) superseded to the extent expressly provided in such contract, policy or plan. The determination of whether “cause” exists shall be made by the Company in its sole and absolute discretion.

5. Accelerated Vesting. All Restricted Stock Units and associated Dividend Equivalent Units shall vest upon (i) a Change in Control (as defined below) or (ii) if Participant is determined to be disabled or in the event of the death of Participant. For purposes of this Agreement, “Change in Control” shall mean a change in the ownership or effective control of the Company, or a change in the ownership of a substantially all of the assets of the Company within the meaning of Regs. Section 1.409A-3(i)(5) under Section 409A of the Code.

6. Settlement . Subject to the terms and conditions of this Agreement, Restricted Stock Units and associated Dividend Equivalent Units that have become vested in accordance with paragraphs 4 and 5 shall be settled as of the earlier of (a) the Participant’s Termination Date


or (b) the second anniversary of the applicable Vesting Date. The date on which settlement occurs is referred to as the “Settlement Date”. Settlement of the vested Restricted Stock Units and associated Dividend Equivalent Units on a Settlement Date shall be made in the form of shares of Common Stock with one share of Common Stock being issued in settlement of each Restricted Stock Unit and associated Dividend Equivalent Unit (any fractional share being rounded up to the next whole unit). Upon the settlement of any vested Restricted Stock Units and Dividend Equivalent Units, such Restricted Stock Units and Dividend Equivalent Units shall be cancelled.

7. Withholding . All Awards and payments under this Agreement are subject to withholding of all applicable taxes. At the election of the Participant, and with the consent of the Committee, such withholding obligations may be satisfied through amounts that the Participant is otherwise to receive upon settlement of this Award or by a cash payment from the Participant to the Company or otherwise as agreed between the Participant and the Company. Under no circumstances will the Company permit the Participant to withhold shares of Common Stock in excess of the maximum tax withholding requirements. Notwithstanding the foregoing, if a tax withholding obligation with respect to tax imposed under the Federal Insurance Contributions Act (FICA) under sections 3101, 3121(a) and 3121(v)(2) of the Code (the “FICA Obligations”) is incurred with respect to any of the Restricted Stock Units and associated Dividend Equivalent Units prior to the Settlement Date with respect to such Restricted Stock Units and associated Dividend Equivalent Units (each date on which the FICA Obligation arises being referred to herein as a “Tax Vesting Date”) then, on the applicable Tax Vesting Date, that number of Restricted Stock Units and associated Dividend Equivalent Units for which the Settlement Date has not occurred as of the Tax Vesting Date shall be settled (and the Tax Vesting Date shall be treated as the “Vesting Date” with respect to such Restricted Stock Units and associated Dividend Equivalent Units) with respect to that number of shares of Common Stock subject thereto having a having a Fair Market Value (determined as of the Tax Vesting Date) equal to the sum of the following:

 

  (a) the FICA Obligations;

 

  (b) the income tax imposed by section 3401 of the Code (or the corresponding withholding provisions of applicable state, local or foreign tax laws) as a result of the FICA Obligations; and

 

  (c) the amount necessary to pay the additional income tax on wages attributable to the pyramiding of the payments under subparagraphs 7(a) and (b).

In no event shall the value of the Restricted Stock Units and associated Dividend Equivalent Units that are settled pursuant to subparagraphs 7(a), (b) and (c) exceed the amount that could be distributed pursuant to Treas. Reg. § 1.409-3(j)(xi).

8. Transferability . This Award is not transferable except as designated by the Participant by will or by the laws of descent and distribution.


9. Heirs and Successors . If any benefits deliverable to the Participant under this Agreement have not been delivered at the time of the Participant’s death, such rights shall be delivered to the Participant’s estate.

10. Administration . The authority to administer and interpret this Agreement shall be vested in the Committee, and the Committee shall have all the powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of the Agreement by the Committee and any decision made by it with respect to the Agreement is final and binding on all persons.

11. Adjustment of Award . The number of Restricted Stock Units and Dividend Equivalent Units awarded pursuant to this Agreement may be adjusted by the Committee in accordance with the terms of the Plan to reflect certain corporate transactions which affect the number, type or value of the Restricted Stock Units or Dividend Equivalent Units.

12. Notices . Any notice required or permitted under this Agreement shall be deemed given when delivered personally, or when deposited in a United States Post Office, postage prepaid, addressed, as appropriate, to the Company at its principal offices, to the Participant at the Participant’s address as last known by the Company or, in either case, such other address as one party may designate in writing to the other.

13. Governing Law . The validity, construction and effect of this Agreement shall be determined in accordance with the laws of the State of New York and applicable federal law.

14. Amendments . The Board of Directors may, at any time, amend or terminate the Plan, and the Board of Directors or the Committee may amend this Agreement, provided that no amendment or termination may, in the absence of written consent to the change by the affected Participant (or, if the Participant is not then living, the affected beneficiary), adversely affect the rights of any Participant or beneficiary under this Agreement prior to the date such amendment or termination is adopted by the Board of Directors or the Committee, as the case may be.

15. Award Not Contract of Employment . The Award does not constitute a contract of employment or continued service, and the grant of the Award will not give the Participant the right to be retained in the employ or service of the Company or any Subsidiary, nor any right or claim to any benefit under the Plan or this Agreement, unless such right or claim has specifically accrued under the terms of the Plan and this Agreement.

16. Severability . If a provision of this Agreement is held invalid by a court of competent jurisdiction, the remaining provisions will nonetheless be enforceable according to their terms. Further, if any provision is held to be overbroad as written, that provision shall be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended.

17. Plan Governs . The Award evidenced by this Agreement is granted pursuant to the Plan, and the Restricted Stock Units, Dividend Equivalent Units and this Agreement are in all respects governed by the Plan and subject to all of the terms and provisions thereof, whether such terms and provisions are incorporated in this Agreement by reference or are expressly cited.


18. Special Section 409A Rules . Notwithstanding any other provision of this Agreement to the contrary, if any payment or benefit hereunder is subject to section 409A of the Code, and if such payment or benefit is to be paid or provided on account of the Participant’s termination of employment (or other separation from service):

 

  (a) and if the Participant is a specified employee (within the meaning of section 409A(a)(2)(B) of the Code) and if any such payment or benefit is required to be made or provided prior to the first day of the seventh month following the Participant’s separation from service or termination of employment, such payment or benefit shall be delayed until the first day of the seventh month following the Participant’s separation from service; and

 

  (b) the determination as to whether the Participant has had a termination of employment (or separation from service) shall be made in accordance with the provisions of section 409A and the guidance issued thereunder without application of any alternative levels of reductions of bona fide services permitted thereunder.

Exhibit 10.5

[ Form of Equity Award Letter for Directors

AMBAC FINANCIAL GROUP, INC.

RESTRICTED STOCK UNIT AND STOCK OPTION AGREEMENT

[ Insert name ] (the “Participant”) has been granted a Full Value Award under the Ambac Financial Group, Inc. Incentive Compensation Plan (the “Plan”) in the form of restricted stock units and an Award in the form of a non-qualified stock option (collectively, the “Awards”). The Award shall be effective as of [ insert date ] (the “Grant Date”). The Award shall be subject to the following terms and conditions (sometimes referred to as this “Agreement”).

1. Defined Terms . Capitalized terms used in this Agreement which are not otherwise defined herein shall have the meaning specified in the Plan.

2. Grant of Restricted Stock Units . Subject to the terms of this Agreement and the Plan, effective as of the Grant Date the Participant is hereby granted [             ] restricted stock units (the “Restricted Stock Units”). This Award contains the right to dividend equivalent units as described in Section 4 (“Dividend Equivalent Units”). Each Restricted Stock Unit shall become vested as described in Section 5 and each vested Restricted Stock Unit shall be settled in accordance with Section 6.

3. Stock Options . Subject to the terms of this Agreement and the Plan, effective as of the Grant Date the Participant is hereby granted a non-qualified stock option to purchase [             ] shares of Common Stock (the “Option”) at an exercise price per share of $[              ]. The Option does not contain the right to Dividend Equivalent Units, but is subject to adjustment in accordance with the terms of Section 10 of the Plan. The Option shall become vested and exercisable as described in Sections 5 and 7, respectively. The Option shall have a seven year term.

4. Dividend Equivalent Units . The Participant shall be entitled to Dividend Equivalent Units in accordance with the following:

 

  (a) Cash Dividend . If a dividend with respect to shares of Common Stock is payable in cash, then, as of the applicable dividend payment date, the Participant shall be credited with that number of Dividend Equivalent Units equal to (i) the cash dividend payable with respect to a share of Common Stock, multiplied by (ii) the number of Restricted Stock Units outstanding (i.e., the number of Restricted Stock Units granted hereunder less the number of such Restricted Stock Units that have settled in accordance with Section 6 below) on the applicable dividend record date, divided by (iii) the Fair Market Value of a share of Common Stock on the dividend payment date.

 

  (b) Stock Dividend . If a dividend with respect to shares of Common Stock is payable in shares of Common Stock, then, as of the dividend payment date, the Participant shall be credited with that number of Dividend Equivalent Units equal to (i) the number of shares Common Stock distributed in the dividend with respect to a share of Common Stock, multiplied by (ii) the number of Restricted Stock Units outstanding on the applicable dividend record date.


Dividend Equivalent Units shall be subject to the same vesting provisions as the Restricted Stock Units to which they relate and shall be settled in accordance with Section 6. No Dividend Equivalent Units shall be credited with respect to previously credited Dividend Equivalent Units.

5. Vesting and Forfeiture of Awards . All Restricted Stock Units, Dividend Equivalent Units and the Option shall be unvested unless and until they become vested and nonforfeitable in accordance with this Section 5.

 

  (a) Service Vesting . Subject to the Participant’s continuing service on the Board of Directors, and the terms and conditions of this Agreement and the Plan, all of the Restricted Stock Units and associated Dividend Equivalent Units and the Option awarded hereunder shall vest, and in the case of the Option shall become exercisable, on April 30, 2014

 

  (b) Accelerated Vesting . All Awards and associated Dividend Equivalent Units shall vest and the Option shall become fully exercisable upon (i) a Change in Control (as defined below), (ii) if Participant is determined to be disabled or in the event of the death of Participant or (ii) in the event of the Participant’s involuntary removal other than for cause from the Board of Directors; provided that no Award shall vest by virtue of the Participant’s removal from the Board of Directors pursuant to a vote of Ambac’s stockholders at Ambac’s regularly scheduled annual meeting of stockholders. For purposes of this Agreement, “Change in Control” shall mean a change in the ownership or effective control of Ambac, or a change in the ownership of a substantially all of the assets of Ambac within the meaning of Regs. Section 1.409A-3(i)(5) under Section 409A of the Code.

 

  (c) Removal Upon Regular Stockholder Vote/Voluntary Resignation . All unvested Awards under this Agreement shall immediately terminate and shall be forfeited and the Participant shall have no further rights with respect to such Awards and associated Dividend Equivalent Units upon the removal of the Participant from the Board of Directors pursuant to a vote of Ambac’s stockholders at Ambac’s regularly scheduled annual meeting of stockholders. If Participant’s service on the Board of Directors terminates by reason of voluntary resignation by Participant, then the Awards and associated Dividend Equivalent Units under this Agreement shall vest as of the date of such termination equal to (x) the number of then outstanding Awards subject to this Agreement multiplied by (y) a fraction, the numerator of which shall be the number of calendar days which have lapsed since the Grant Date and the denominator of which shall be the number of calendar days from the Grant Date until the one-year anniversary of the Grant Date.

 

  (d)

Removal For Cause . All Awards and associated Dividend Equivalent Units under this Agreement, whether or not vested, shall immediately terminate and shall be forfeited and the Participant shall have no further rights with respect to such

 

2


  Awards upon the removal of the Participant from the Board of Directors for cause, which results in economic harm to the Company, as determined in good faith by the Board of Directors in accordance with applicable law and the Company’s by-laws and articles of incorporation.

6. Settlement . Subject to the terms and conditions of this Agreement, Restricted Stock Units and associated Dividend Equivalent Units that have become vested in accordance with Section 5 shall be settled on the earlier of (i) Participant’s Termination Date or (ii) a Change in Control. Settlement of the vested Restricted Stock Units and associated Dividend Equivalent Units shall be made in the form of shares of Common Stock with one share of Common Stock being issued in settlement of each Restricted Stock Unit and associated Dividend Equivalent Unit (any fractional share being rounded up to the next whole unit). Upon the settlement of any vested Restricted Stock Units and Dividend Equivalent Units, such Restricted Stock Units and Dividend Equivalent Units shall be cancelled.

7. Option Exercise . To the extent vested and exercisable, the Option may be exercised in whole or in part upon written notice of exercise to Ambac and payment of the exercise price as reasonably specified by Ambac; provided that the Participant may satisfy the exercise price due upon exercise by reducing the number of shares of Common Stock deliverable upon exercise of the Option in amount sufficient to satisfy the exercise price based on the Fair Market Value of the shares of Common Stock on the date of exercise. Unless terminated pursuant to Section 5(d) above and subject to the terms of the Plan, the vested portion of an Option shall remain exercisable for ninety calendar days after the Participant’s Termination Date. Upon exercise the Option shall immediately terminate and the Participant shall have no further rights with respect to the Option.

8. Taxes . It is expressly understood and agreed that during the term of this Agreement the Participant’s relationship to the Company will be that of an independent contractor and that the Services to be rendered hereunder shall not for any purpose whatsoever or in any way or manner create any employer-employee relationship. The compensation provided by the Company to the Participant, under this Agreement and otherwise, is not intended to constitute “wages” for purposes of federal, state, or local withholding taxes, social security payments, insurance contributions, unemployment taxes or otherwise. Accordingly, the Participant shall have sole and exclusive responsibility for the payment of all of the Participant’s (a) federal, state and local income taxes, (b) employment and disability insurance, and (c) Social Security and other similar taxes, with respect to any compensation or benefits provided to Participant by the Company.

9. Transferability . This Award is not transferable except as designated by the Participant by will or by the laws of descent and distribution.

10. Heirs and Successors . If any benefits deliverable to the Participant under this Agreement have not been delivered at the time of the Participant’s death, such rights shall be delivered to the Participant’s estate.

11. Administration . The authority to administer and interpret this Agreement shall be vested in the Company’s Governance and Nominating Committee, and such Committee shall

 

3


have all the powers with respect to this Agreement as the “Committee” has under the Plan. Any interpretation of the Agreement by the Governance and Nominating Committee and any decision made by it with respect to the Agreement is final and binding on all persons.

12. Adjustment of Award . The number of Restricted Stock Units and Dividend Equivalent Units and the exercise price and the number of shares subject to the Option awarded pursuant to this Agreement may be adjusted (subject to the requirements and limitations of the Code) in accordance with the terms of the Plan to reflect certain corporate transactions which affect the number, type or value of the Common Stock, Restricted Stock Units or Dividend Equivalent Units.

13. Notices . Any notice required or permitted under this Agreement shall be deemed given when delivered personally, or when deposited in a United States Post Office, postage prepaid, addressed, as appropriate, to the Company at its principal offices, to the Participant at the Participant’s address as last known by the Company or, in either case, such other address as one party may designate in writing to the other.

14. Governing Law . The validity, construction and effect of this Agreement shall be determined in accordance with the laws of the State of New York and applicable federal law.

15. Amendments . The Board of Directors may, at any time, amend or terminate the Plan, and the Board of Directors may amend this Agreement, provided that no amendment or termination may, in the absence of written consent to the change by the affected Participant (or, if the Participant is not then living, the affected beneficiary), adversely affect the rights of any Participant or beneficiary under this Agreement prior to the date such amendment or termination is adopted by the Board of Directors, as the case may be.

16. Award Not Contract of Employment . The Award does not constitute a contract of employment or continued service, and the grant of the Award will not give the Participant the right to be retained in the employ or service of the Company or any Subsidiary, nor any right or claim to any benefit under the Plan or this Agreement, unless such right or claim has specifically accrued under the terms of the Plan and this Agreement.

17. Severability . If a provision of this Agreement is held invalid by a court of competent jurisdiction, the remaining provisions will nonetheless be enforceable according to their terms. Further, if any provision is held to be overbroad as written, that provision shall be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended.

18. Plan Governs . The Award evidenced by this Agreement is granted pursuant to the Plan, and the Restricted Stock Units, Dividend Equivalent Units, the Option and this Agreement are in all respects governed by the Plan and subject to all of the terms and provisions thereof, whether such terms and provisions are incorporated in this Agreement by reference or are expressly cited.

 

4


19. Code Section 409A Rules .

 

  (a) Compliance . Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein either shall either be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or shall comply with the requirements of Code Section 409A, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be exempt from or in compliance with Code Section 409A. 

 

  (b) Separate Payments . Notwithstanding anything in this Agreement to the contrary, the right to receive installment payments hereunder shall be treated as a right to receive a series of separate payments in accordance with Code Section 409A and Final Treasury Regulation Section 1.409A-2(b)(2)(iii). 

 

  (c) Short-Term Deferral . Except as otherwise specifically provided, amounts payable under this Agreement, other than those expressly payable on a deferred or installment basis, will be paid as promptly as practicable following the date they are earned and vested and, in any event, on or prior to March 15 of the year following the first calendar year in which such amounts are no longer subject to a substantial risk of forfeiture, as such term is defined in Section 409A of the Code.

 

  (d) Separation from Service . Notwithstanding anything in this Agreement or elsewhere to the contrary, a termination of Participant’s service with the Board of Directors shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that constitute “non-qualified deferred compensation” within the meaning of Code Section 409A upon or following a termination of Participant’s service unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of service” or like terms shall mean “separation from service” and the date of such separation from service shall be the “Termination Date” for purposes of any such payment or benefits.

 

  (e) No Designation . In no event may Participant, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise that constitutes a “deferral of compensation” within the meaning of Code Section 409A.

 

5

Exhibit 10.12

TAX SHARING AGREEMENT

This amended and restated Tax Sharing Agreement (“ Tax Sharing Agreement ”) is executed on March 14, 2012, by and among Ambac Financial Group, Inc. (formerly known as AMBAC Inc., and hereinafter referred to as “ AFGI ” or “ Parent ”) and each of the other corporations that is a signatory to this Tax Sharing Agreement below.

WHEREAS, Parent and each of the Subsidiaries (as defined below), including Ambac Assurance Corporation (formerly known as AMBAC Indemnity Corporation) (“ AAC ”), are includible corporations in an affiliated group of corporations of which AFGI is the common parent, all within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the “ Code ”).

WHEREAS, Parent and the Subsidiaries are parties to a tax sharing agreement dated as of July 18, 1991 (the “ 1991 TSA ”), as amended by Amendment No. 1, effective as of October 1, 1997 (“ Amendment No.1 ”), as amended by Amendment No. 2, effective as of November 19, 2009 (“ Amendment No. 2 ”), and as amended by Amendment No. 3, effective as of January 1, 2010 (“ Amendment No. 3 ”), which sets forth a method to allocate and settle among them the consolidated federal tax liability of the Group (as defined below) and certain other related matters.

WHEREAS, Parent filed a petition in the United States Bankruptcy Court for the Southern District of New York (the “ Bankruptcy Court ”), under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”), on November 8, 2010, as referenced by Case No. 10-15973 (SCC) (the “ Chapter 11 Case ”).

WHEREAS, Parent intends to continue to file consolidated federal income tax returns on behalf of itself and the other Members (as defined below) of the Group.

NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. Effective Date . The effective date of this Tax Sharing Agreement (the “ Effective Date ”) shall be the later of (a) the Bankruptcy Plan Confirmation Date (as defined below) and (b) the date on which a non-stayed order is entered by the Rehabilitation Court (as defined below) approving the transactions contemplated by the Mediation Agreement (as defined below); provided , however , that once this Tax Sharing Agreement becomes effective, it shall have effect for all Taxable Periods (as defined below) beginning on or after January 1, 2011, subject to the following:

 

  (a) For purposes of subparagraph 3(c), this Tax Sharing Agreement shall have effect as of October 1, 2011, and the portion of the Taxable Period beginning on October 1, 2011 and ending on December 31, 2011 shall be considered a separate Taxable Period.

 

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   Amended and Restated Tax Sharing Agreement


  (b) The 1991 TSA as amended by Amendment No. 1 and Amendment No. 2 (the “ Prior Agreement ”) shall remain in effect with respect to all Taxable Periods beginning before January 1, 2011. For the avoidance of doubt:

 

  (i) In the event that tax attributes of the Group, including, but not limited to, NOLs (as defined below), AMT NOLs (as defined below) and tax credit carryforwards, arising in a Taxable Period beginning prior to January 1, 2011 are carried over to a Taxable Period beginning on or after January 1, 2011, the effect, in the Taxable Period to which the tax attribute is carried over, shall be determined by applying the provisions of this Tax Sharing Agreement; and

 

  (ii) In the event that tax attributes of the Group, including, but not limited to, NOLs, AMT NOLs, and tax credit carryforwards, arising in a Taxable Period beginning on or after January 1, 2011 are carried back to a Taxable Period beginning prior to January 1, 2011, the effect, in the Taxable Period to which the tax attribute is carried back, shall be determined by applying the provisions of the Prior Agreement; provided that any carryback of any portion of the Allocated AAC NOL Amount, Allocated AAC AMT NOL Amount, Post-Deconsolidation Allocated NOL Amount, Post-Deconsolidation Allocated AMT NOL Amount or Post-Determination Date NOLs shall be subject to subparagraph 3(c) of this Tax Sharing Agreement with respect to such Taxable Period.

 

  (c) Prior to the Effective Date, payments shall be made by the Subsidiaries to Parent, and by Parent to the Subsidiaries, in accordance with the provisions of the Prior Agreement.

 

  (d) Within sixty (60) days after the Effective Date, Parent shall calculate, in the case of each Subsidiary, the difference between (i) the aggregate amount paid (prior to the Effective Date) by the Subsidiary to Parent pursuant to the Prior Agreement with respect to Taxable Periods beginning on or after January 1, 2011, and (ii) the aggregate amount that would have been payable (prior to the Effective Date) by the Subsidiary to Parent with respect to such Taxable Periods if such payments had been determined under this Tax Sharing Agreement. If the amount in clause (i) exceeds the amount in clause (ii), this excess shall be paid by Parent to the Subsidiary no later than ninety (90) days after the Effective Date. If the amount in clause (ii) exceeds the amount in clause (i), this excess shall be paid by the Subsidiary to Parent no later than ninety (90) days after the Effective Date.

2. Defined Terms . For purposes of this Tax Sharing Agreement, the following terms shall be defined as follows:

AAC AMT ” for a Taxable Period shall mean, with respect to the AAC Subgroup, the AMT liability, if any, that the AAC Subgroup would have for such Taxable Period determined on a Separate Subsidiary Basis.

 

2

   Amended and Restated Tax Sharing Agreement


AAC AMT NOL Usage Amount ” shall mean, with respect to any Taxable Period, the amount determined pursuant to subclause 3(c)(iii)(3).

AAC Federal Tax Usage Amount ” shall mean, with respect to any Taxable Period, the sum of the amounts due and payable by the AAC Subgroup under clauses 3(c)(i) and 3(c)(ii).

AAC Notional AMT Amount ” shall mean, with respect to any Taxable Period, the aggregate amount of the increase in the AAC Subgroup’s AMT liability that would have been owed and payable with respect to such Taxable Period (determined on a Separate Subsidiary Basis), disregarding any exclusion from gross income pursuant to Section 108(a) of the Code, to the extent that no portion of the (i) Allocated AAC AMT NOL Amount or (ii) Post-Deconsolidation Allocated AMT NOL Amount within the applicable NOL Usage Tier or Usage Tiers, as the case may be, would have been available in connection with such determination with respect to such Taxable Period (after applying all applicable modifications provided in subparagraph 3(c)).

AAC Notional Federal Tax Amount ” shall mean, with respect to any Taxable Period, the aggregate amount of the increase in the AAC Subgroup’s Federal Tax liability that would have been owed and payable with respect to such Taxable Period (determined on a Separate Subsidiary Basis), disregarding any exclusion from gross income pursuant to Section 108(a) of the Code, to the extent that no portion of the (i) (A) Allocated AAC NOL Amount or (B) Post-Deconsolidation Allocated NOL Amount within the applicable NOL Usage Tier or Usage Tiers, as the case may be, or (ii) AFGI NOL Amount, as the case may be, would have been available in connection with such determination with respect to such Taxable Period (after applying all applicable modifications provided in subparagraph 3(c)).

AAC Subgroup ” shall mean AAC and any direct or indirect Subsidiary of AAC, including Everspan, which would be treated as an includable corporation of an affiliated group of corporations under Section 1504(a) of the Code as if AAC were the common parent of such affiliated group; provided , however , that for purposes of paragraphs 3, 4 and 5 and subparagraphs 6(e) and 6(f), the AAC Subgroup shall be treated as a single separate Subsidiary of the Group.

AAC Subsidiary ” shall mean any Subsidiary included in the AAC Subgroup.

 

3

   Amended and Restated Tax Sharing Agreement


Adjustment Event ” shall mean any event resulting in the application of Treasury Regulation Section 1.1502-36 to AAC or the AAC Subgroup, other than a Deconsolidation Event.

AFGI NOL Amount or AFGI NOLs ” shall mean, with respect to any Taxable Period, the NOLs of the Group MINUS the sum of (i) the Allocated AAC NOL Amount that has not been previously utilized to offset income for Federal Tax purposes and (ii) the portion of the Post-Determination Date NOLs that has not been previously utilized to offset income for Federal Tax purposes, in each case, as determined as of the end of such Taxable Period (or the portion of each Taxable Period ending on the date of the occurrence of a Deconsolidation Event).

AFGI Subgroup ” shall mean each Member of the Group other than any Member included in the AAC Subgroup.

AFGI Subsidiary ” shall mean each Subsidiary other than any Subsidiary included in the AAC Subgroup.

Allocated AAC AMT NOL Amount ” shall mean the lesser of (i) $2.934 billion and (ii) the total amount of Pre-Determination Date AMT NOLs MINUS the Debt Related Income MINUS the IRS Settlement Amount.

Allocated AAC NOL Amount ” shall mean the lesser of (i) $3.65 billion and (ii) the total amount of Pre-Determination Date NOLs MINUS the Debt Related Income MINUS the IRS Settlement Amount.

AMT ” shall mean the alternative minimum tax imposed pursuant to Sections 55 through 59 of the Code.

AMT NOL or AMT NOLs ” shall mean any NOL or NOLs as determined for purposes of the AMT provisions of the Code, including any adjustments or limitations provided pursuant to Sections 55 though 59 of the Code.

Annual AMT NOL Usage Credit ” shall mean, subject to subclause 3(c)(iii)(4):

 

  i. with respect to the Taxable Period beginning on October 1, 2011, $1 million;

 

  ii. during the second (2 nd ) through seventh (7 th ) Taxable Periods following the Taxable Period beginning on October 1, 2011, the sum of (1) $3 million and (2) the excess of $3 million over the lesser of (Y) the portion of the Annual AMT NOL Usage Credit actually utilized in the immediately prior Taxable Period and (Z) $3 million;

 

4

   Amended and Restated Tax Sharing Agreement


  iii. during the eighth (8 th ) Taxable Period following the Taxable Period beginning on October 1, 2011, the sum of (1) $10 million and (2) the excess of $3 million over the lesser of (Y) the portion of the Annual AMT NOL Usage Credit actually utilized in the immediately prior Taxable Period and (Z) $3 million; and

 

  iv. during the ninth (9 th ) Taxable Period following the Taxable Period beginning on October 1, 2011 and any Taxable Period thereafter, the Annual AMT NOL Usage Credit shall be equal to the sum of (1) $10 million and (2) the excess of $10 million over the lesser of (Y) the portion of the Annual AMT NOL Usage Credit actually utilized in the immediately prior Taxable Period and (Z) $10 million.

Bankruptcy Plan ” shall mean the Plan of Reorganization of Ambac Financial Group, Inc. filed with the Bankruptcy Court on July 6, 2011 (as amended, supplemented or otherwise modified).

Bankruptcy Plan Confirmation Date ” shall mean the date on which an order is entered pursuant to Bankruptcy Code Section 1129 by the Bankruptcy Court confirming the Bankruptcy Plan.

Carryback Payment ” shall have the meaning provided in subparagraph 5(a).

Cash Grant ” shall mean the $30 million paid by AAC to AFGI (through an escrow account) pursuant to the Mediation Agreement.

Closing Date ” shall have the meaning provided in paragraph 11 of the Mediation Agreement.

CODI ” shall mean cancellation of indebtedness income as determined under Sections 61(a)(12) and 108(a) of the Code and the Treasury Regulations thereunder.

Cooperation Agreement ” shall mean the Cooperation Agreement, dated as of March 24, 2010, among AAC, the Segregated Account, AFGI and the Rehabilitator, as amended.

Cost Allocation Agreement ” shall mean the Expense Sharing and Cost Allocation Agreement effective as of the Effective Date among AFGI, AAC and the affiliates listed on Schedule A thereto.

Debt Related Income ” shall mean any Interest Recapture plus any CODI, in each case, realized by AFGI or an AFGI Subsidiary in connection with the Bankruptcy Plan and the Chapter 11 Case.

 

5

   Amended and Restated Tax Sharing Agreement


Deconsolidation Event ” shall mean any event that results in neither AAC nor any entity that, pursuant to Section 381 of the Code, succeeds to the tax attributes of AAC described in Section 381(b) of the Code, being characterized as an includible corporation with the Group, all within the meaning of Section 1504 of the Code.

Determination Date ” shall mean September 30, 2011.

Effective Date ” shall have the meaning provided in paragraph 1.

Estimated Tax Payments ” shall mean, for a Taxable Period, the aggregate payments for such Taxable Period provided in paragraph 4 hereof.

Everspan ” shall mean Everspan Financial Guarantee Corp.

Federal Tax ” shall mean any tax imposed under the Code other than AMT.

Final Determination ” shall have the meaning provided in subparagraph 5(a).

Group ” shall mean (i) Parent and (ii) any corporation (whether now existing or hereafter formed or acquired) which is includible in the affiliated group, as defined in Section 1504(a) of the Code, which includes Parent (or a new common parent if the affiliated group of which Parent is the common parent as of January 1, 2011 remains in existence under Treasury Regulation Section 1.1502-75(d)(3)).

Initial Date ” shall mean the date on which Parent ceased to be a member of the affiliated group of which Citicorp is the common parent.

Interest Recapture ” shall mean the amount of any interest expense of AFGI or an AFGI Subsidiary that is disallowed pursuant to Section 382(l)(5)(B) of the Code upon the consummation of the Bankruptcy Plan or otherwise related to the Chapter 11 Case.

IRS ” shall mean the U.S. Internal Revenue Service.

IRS Dispute ” shall mean the adversary proceeding (including appeals, if any) initiated by AFGI as debtor in the Chapter 11 Case against the IRS (captioned Ambac Financial Group, Inc. vs. United States of America, Case No. 10-04210).

IRS Settlement Amount ” shall mean an amount to be determined upon the execution of a closing agreement with respect to the IRS Dispute.

Maximum Annual AMT NOL Usage Credit” shall mean, with respect to any Taxable Period, an amount of the Annual AMT NOL Usage Credit

 

6

   Amended and Restated Tax Sharing Agreement


equal to the excess, if any, of (i) the AAC AMT NOL Usage Amount (determined before giving effect to the Annual AMT NOL Usage Credit) over (ii) the AAC Federal Tax Usage Amount, such excess, subject to the payment provisions of subclause 3(c)(iii)(2).

Mediation Agreement ” shall mean the mediation agreement, dated as of September 21, 2011, by and among AFGI, AAC, the Segregated Account, the Wisconsin Office of the Commissioner of Insurance, the Rehabilitator and the Official Committee of Unsecured Creditors of AFGI.

Member ” shall mean each corporation (whether now existing or hereafter formed or acquired), including Parent and each of the Subsidiaries, that is entitled, or required, to join with Parent in filing a consolidated federal income tax return with the Group.

NOL or NOLs ” shall mean any net operating loss or losses as determined pursuant to Section 172 of the Code.

NOL Usage Table ” shall mean the table contained in subclauses 3(c)(i)(2), 3(c)(ii)(2) and 3(c)(iii)(3).

NOL Usage Tier ” shall mean the applicable tier for calculating payments as described in each NOL Usage Table.

Post-Deconsolidation Allocated AMT NOL Amount ” shall mean an amount equal to (i) the Allocated AAC AMT NOL Amount MINUS (ii) the Pre-Deconsolidation Utilized AMT NOL Amount; provided , however , that AFGI, in its sole discretion, may increase the Post-Deconsolidation Allocated AMT NOL Amount.

Post-Deconsolidation Allocated NOL Amount ” shall mean an amount equal to (i) the Allocated AAC NOL Amount, MINUS (ii) the Pre-Deconsolidation Utilized NOL Amount; provided , however , that AFGI in its sole discretion, may increase the Post-Deconsolidation Allocated NOL Amount.

Post-Determination Date AMT NOLs ” shall mean, subject to subparagraph 6(f), any AMT NOLs directly accruing and attributable to the AAC Subgroup (determined on a Separate Subsidiary Basis) after the Determination Date.

Post-Determination Date NOLs ” shall mean, subject to subparagraph 6(f), any NOLs directly accruing and attributable to the AAC Subgroup (determined on a Separate Subsidiary Basis) after the Determination Date.

Pre-Deconsolidation Utilized AMT NOL Amount ” shall mean the aggregate portion of the Allocated AAC AMT NOL Amount deemed

 

7

   Amended and Restated Tax Sharing Agreement


utilized by the AAC Subgroup to offset income for AMT purposes pursuant to the provisions of clause 3(c)(iii) following the Determination Date and on or prior to the date on which a Deconsolidation Event occurs (including any AMT NOLs that were not directly or indirectly subject to the payment requirements of clause 3(c)(iii)).

Pre-Deconsolidation Utilized NOL Amoun t” shall mean the aggregate sum of the Allocated AAC NOL Amount deemed utilized by (i) the AAC Subgroup to offset income for Federal Tax purposes pursuant to the provisions of subclause 3(c)(i)(2) and (ii) the AFGI Subgroup to offset income for Federal Tax purposes pursuant to the provisions of clause 3(c)(vii), in each case, following the Determination Date and on or prior to the date on which a Deconsolidation Event occurs (including any NOLs that were not directly or indirectly subject to the payment requirements of clause 3(c)(i)).

Pre-Determination Date AMT NOLs ” shall mean, subject to subparagraph 6(f), any AMT NOLs generated by the Group on or prior to, and existing as of, the Determination Date, not taking into account the consequences of any settlement with respect to the IRS Dispute.

Pre-Determination Date NOLs ” shall mean, subject to the provisions of subparagraph 6(f), any NOLs generated by the Group on or prior to, and existing as of, the Determination Date, not taking into account the consequences of any settlement with respect to the IRS Dispute.

Recovery Payment ” shall have the meaning provided in subparagraph 5(d).

Rehabilitation Court ” shall mean the Circuit Court of Dane County Wisconsin, with respect to the Segregated Account rehabilitation proceeding, Case No. 10-cv-1576.

Rehabilitator ” shall mean the rehabilitator of the Segregated Account appointed by the Rehabilitation Court.

Segregated Account ” shall mean the segregated account of AAC, established pursuant to a plan of operation which sets forth the manner by which AAC shall establish and operate such segregated account in accordance with Wis. Stat. Section 611.24(2).

Separate Subsidiary Basis ” shall mean the Federal Tax liability and AMT liability, taking into account all items of income, gain, deduction, loss, credits (including AMT credits), tax item carryforwards or carrybacks or other similar tax attributes that each Subsidiary would have for such Taxable Period (including interest and penalties related to items attributable to each Subsidiary) determined as if such Subsidiary had filed

 

8

   Amended and Restated Tax Sharing Agreement


its own federal tax return for any such Taxable Period and for all prior Taxable Periods beginning on or after the Initial Date employing the methods and principles of accounting, elections and conventions actually used in the determination of the Federal Tax and AMT liabilities of the Group; provided , however , in each case, that for purposes of paragraph 3, the AAC Subgroup shall be characterized as having available for its use only the NOLs, AMT NOLs and AMT credits specifically allocated to, or made available for use by, the AAC Subgroup pursuant to (and subject to the limitations provided in) clauses 3(c)(i)(1), 3(c)(i)(3), 3(c)(ii)(1), 3(c)(iii)(1), 3(c)(iv)(1) and 3(c)(iv)(2), MINUS the portion of any NOLs described in the last sentence of clause 3(c)(vii)(3).

Separate Subsidiary Tax ” for a Taxable Period shall mean, with respect to each Subsidiary, the Federal Tax liability and AMT liability that each Subsidiary would have for such Taxable Period (including interest and penalties related to items attributable thereto) determined on a Separate Subsidiary Basis; provided , however , that (i) prior to a Deconsolidation Event, the AAC Subgroup shall be treated as a single separate Subsidiary of the Group and (ii) after a Deconsolidation Event, the AAC Subgroup shall be treated as a single corporation that is not included in any affiliated group as defined in Section 1504 of the Code and that is filing its own separate federal tax return; provided further , in each case, that for purposes of paragraph 3, the AAC Subgroup shall be characterized as having available for its use only the NOLs, AMT NOLs and AMT credits specifically allocated to, or made available for use by, the AAC Subgroup pursuant to (and subject to the limitations provided in) clauses 3(c)(i)(1), 3(c)(i)(3), 3(c)(ii)(1), 3(c)(iii)(1), 3(c)(iv)(1) and 3(c)(iv)(2), MINUS the portion of any NOLs described in the last sentence of clause 3(c)(vii)(3).

Subsidiary ” shall mean each corporation, or association taxable as a corporation, that is an includible corporation within the meaning of Section 1504 of the Code with respect to the Group, the AAC Subgroup, or both the Group and the AAC Subgroup, as the case may be.

Taxable Period ” shall mean any taxable year (or portion thereof) ending after the Initial Date with respect to which a federal income tax return is filed on behalf of (i) the Group, (ii) the AAC Subgroup or (iii) AAC.

3. Provisions Relating to Payments . For each Taxable Period, the parties hereto shall make payments to each other in accordance with this Tax Sharing Agreement as follows:

 

  (a) Payments to Parent and AAC .

 

  (i) For each Taxable Period of the Group, each AFGI Subsidiary shall pay to Parent the Separate Subsidiary Tax due with respect to such AFGI Subsidiary no later than the due date (excluding extensions) of the Group’s consolidated federal tax return for the Taxable Period in question.

 

9

   Amended and Restated Tax Sharing Agreement


  (ii) For each Taxable Period of the Group beginning prior to the occurrence of a Deconsolidation Event, AAC on behalf of the AAC Subgroup, shall pay to Parent the Separate Subsidiary Tax due with respect to the AAC Subgroup no later than the due date (excluding extensions) of the Group’s consolidated federal tax return for the Taxable Period in question; provided , however , that, solely for purposes of this clause 3(a)(ii), in the event that AAC is required to make a payment to Parent pursuant to subclause 3(c)(i)(3) with respect to the Taxable Period, the Separate Subsidiary Tax of the AAC Subgroup for the Taxable Period shall be calculated by treating any portion of the AFGI NOL Amount that is utilized by the AAC Subgroup as if such NOLs had been generated by the AAC Subgroup rather than by AFGI or an AFGI Subsidiary; and provided further that to the extent that Parent has not previously made all payments to AAC required under this Tax Sharing Agreement and the Prior Agreement, AAC shall be entitled to offset and retain any portion of the payment of Separate Subsidiary Tax that would otherwise be due to Parent.

 

  (iii) For each Taxable Period of the Group beginning prior to the occurrence of a Deconsolidation Event, AAC on behalf of the AAC Subgroup shall pay to Parent any amounts due pursuant to subparagraph 3(c) hereof no later than forty-five (45) days after the due date (excluding extensions) of the Group’s consolidated federal tax return for the Taxable Period in question; provided , however , that any such amounts due prior to the Closing Date shall be deposited in an escrow account established pursuant to the Mediation Agreement and subsequently transferred to AFGI on the Closing Date; provided further , that AAC shall be entitled to offset and retain any portion of any amounts due pursuant to subparagraph 3(c) to the extent that Parent has not previously made all payments to AAC required under this Tax Sharing Agreement and the Prior Agreement.

 

  (iv)

With respect to any Taxable Period of the AAC Subgroup beginning after a Deconsolidation Event, AAC shall provide AFGI with (1) a copy of any tax return that includes the AAC Subgroup and that reflects the utilization of any portion of the Post-Deconsolidation Allocated NOL Amount or Post-Deconsolidation Allocated AMT NOL Amount and (2) a reasonably detailed written calculation either of the amounts due to Parent under clauses 3(c)(ii) or 3(c)(iii) or an explanation of why no amounts are due, in each case, at least thirty (30) days before the filing of

 

10

   Amended and Restated Tax Sharing Agreement


  such tax return. If AFGI agrees in writing within thirty (30) days of the receipt of the items referenced in (1) and (2) above with AAC’s calculation of the amounts due to AFGI, AAC shall pay to AFGI any amounts due pursuant to subparagraph 3(c) no later than the due date of such tax return including extensions; provided , however , that AAC shall be entitled to offset and retain any portion of any amounts due pursuant to subparagraph 3(c) to the extent that Parent has not previously made all payments to AAC required under this Tax Sharing Agreement and the Prior Agreement. Any disputed item related to such tax return shall be subject to the dispute resolution and payment provisions of paragraph 8.

 

  (v) For each Taxable Period of the Group, each AAC Subsidiary (other than AAC) shall pay to AAC (1) such Subsidiary’s allocable portion of the AAC Subgroup’s Separate Subsidiary Tax, as determined solely in AAC’s discretion, no later than the due date (excluding extensions) of the Group’s consolidated federal tax return for the Taxable Period in question and (2) such subsidiary’s allocable portion of the AAC Subgroup’s amount due to Parent under clause 3(a)(iii), as determined solely in AAC’s discretion, no later than forty-five (45) days after the due date (excluding extensions) of the Group’s consolidated federal tax return for the Taxable Period in question.

 

  (b) Payments by Parent .

 

  (i) To the extent that payments made by any AFGI Subsidiary pursuant to clause 3(a)(i) and paragraph 4 exceed the Separate Subsidiary Tax liability of such AFGI Subsidiary for a Taxable Period, AFGI shall, no later than thirty (30) days after the filing of the Group’s consolidated federal tax return with respect to such Taxable Period, pay such excess to such AFGI Subsidiary.

 

  (ii) To the extent that payments made by AAC on behalf of the AAC Subgroup pursuant to clause 3(a)(ii) and paragraph 4 with respect to a Taxable Period exceed the Separate Subsidiary Tax liability of the AAC Subgroup for such Taxable Period, AFGI shall, no later than thirty (30) days after the filing of the Group’s consolidated federal tax return with respect to such Taxable Period, pay such excess to AAC; provided , however , that Parent shall be entitled to offset and retain any portion of such excess to the extent that AAC has not previously made all payments required under this Tax Sharing Agreement and the Prior Agreement.

 

  (iii)

With respect to (1) any Taxable Period of the Group that does not include a Deconsolidation Event or (2) the portion of any Taxable Period of the Group prior to the occurrence of a Deconsolidation

 

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   Amended and Restated Tax Sharing Agreement


  Event, to the extent that payments made by AAC on behalf of the AAC Subgroup pursuant to subparagraph 3(c) exceed the payments required to be made thereunder, AFGI shall, no later than thirty (30) days after the filing of the Group’s consolidated federal tax return with respect to such Taxable Period, pay such amounts to AAC; provided , however , that Parent shall be entitled to offset and retain any portion of such excess to the extent that AAC has not previously made all payments required under this Tax Sharing Agreement and the Prior Agreement.

 

  (iv) For each Taxable Period of the Group beginning on or prior to the date on which a Deconsolidation Event occurs, Parent shall pay to AAC on behalf of the AAC Subgroup any amounts due pursuant to clause 3(c)(vii) hereof no later than the due date (excluding extensions) of the Group’s consolidated federal tax return with respect to such Taxable Period.

 

  (v) For the avoidance of doubt, the provisions of paragraph 5 shall be taken into account with respect to any payments made as a result of a Final Determination or Carryback Payment (as such terms are defined below).

 

  (c) Payments Related to the Notional Utilization of NOLs . For purposes of determining any payments required under this subparagraph 3(c) related to the notional utilization of NOLs:

 

  (i) Allocated AAC NOL Amount during Consolidation . Subject to clauses 3(c)(iv) through 3(c)(viii):

 

  (1) Allocated NOLs . Unless and until there has been a Deconsolidation Event, the aggregate amount of Pre-Determination Date NOLs allocated to, and available for use by, the AAC Subgroup to offset income for Federal Tax purposes shall be an aggregate amount equal to the Allocated AAC NOL Amount.

 

  (2)

NOL Usage Payment . The AAC Subgroup in the aggregate may utilize Pre-Determination Date NOLs to offset income for Federal Tax purposes in an amount up to the Allocated AAC NOL Amount (to the extent not previously utilized in a prior Taxable Period pursuant to this subclause 3(c)(i)(2)). During any Taxable Period that the AAC Subgroup offsets income for Federal Tax purposes by utilizing any portion of the available Allocated AAC NOL Amount with respect to any NOL Usage Tier set forth in the NOL Usage Table below (taking into account all prior NOL utilization within each NOL Usage Tier during any

 

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   Amended and Restated Tax Sharing Agreement


  Taxable Period), AAC shall make payments to AFGI within the time and in the manner prescribed herein in an amount equal to (Y) the applicable percentages with respect to the applicable NOL Usage Tier, multiplied by (Z) the AAC Notional Federal Tax Amount attributable to the utilization of such portion of the Allocated AAC NOL Amount within the applicable NOL Usage Tier or NOL Usage Tiers, as the case may be.

 

NOL Usage Tier

  

Allocated AAC NOL Amount

   Applicable Percentage

A

   The first $0.479 billion    15%

B

   The next $1.057 billion after NOL Usage Tier A    40%

C

   The next $1.057 billion after NOL Usage Tier B    10%

D

   The next $1.057 billion after NOL Usage Tier C    15%

 

  (3) Additional Payment . Beginning on the fifth (5 th ) anniversary of the Effective Date prior to the occurrence of a Deconsolidation Event, and, subject to AFGI’s consent (not to be unreasonably withheld), the AAC Subgroup may utilize NOLs to offset income for Federal Tax purposes in any Taxable Period in an amount up to the AFGI NOL Amount (less any portion of the AFGI NOL Amount utilized by any Member of the AFGI Subgroup in a prior Taxable Period or the current Taxable Period pursuant to clause 3(c)(vii)). During any Taxable Period that the AAC Subgroup utilizes any portion of the AFGI NOL Amount to offset income of the AAC Subgroup for Federal Tax purposes, AAC shall make a payment to AFGI within the time and manner prescribed herein in an amount equal to 25% multiplied by the AAC Notional Federal Tax Amount determined with respect to the AAC Subgroup’s use of such NOLs, provided that the entire amount of the NOLs comprising the Allocated AAC NOL Amount has been previously subject to subclause 3(c)(i)(2).

 

  (ii) Allocated AAC NOL Amount following a Deconsolidation Event . Subject to clauses 3(c)(iv) through 3(c)(viii):

 

  (1) Allocated NOLs . Following the occurrence of a Deconsolidation Event, the aggregate amount of Pre-Determination Date NOLs allocated to, and available for use by, the AAC Subgroup to offset income for Federal Tax purposes shall be an aggregate amount equal to the Post-Deconsolidation Allocated NOL Amount.

 

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   Amended and Restated Tax Sharing Agreement


  (2) NOL Usage Payment . The AAC Subgroup in the aggregate may utilize Pre-Determination Date NOLs to offset income for Federal Tax purposes in an amount up to the Post-Deconsolidation Allocated NOL Amount (to the extent not previously utilized in a prior Taxable Period pursuant to clause 3(c)(i) or this clause 3(c)(ii)). During any Taxable Period that the AAC Subgroup offsets income for Federal Tax purposes by utilizing any portion of the available Post-Deconsolidation Allocated NOL Amount with respect to any NOL Usage Tier set forth in the NOL Usage Table below (taking into account all prior NOL utilization within each NOL Usage Tier during any Taxable Period, including any utilization of any portion of the Allocated AAC NOL Amount under clause 3(c)(i)), AAC shall make payments to AFGI within the time and in the manner prescribed herein in an amount equal to (Y) the applicable percentages with respect to the applicable NOL Usage Tier, multiplied by (Z) the AAC Notional Federal Tax Amount attributable to the utilization of such portion of the Allocated AAC NOL Amount within the applicable NOL Usage Tier or NOL Usage Tiers, as the case may be.

 

NOL Usage Tier

  

Allocated AAC NOL Amount

   Applicable Percentage

A

   The first $0.479 billion    15%

B

   The next $1.057 billion after NOL Usage Tier A    40%

C

   The next $1.057 billion after NOL Usage Tier B    10%

D

   The next $1.057 billion after NOL Usage Tier C    15%

 

  (iii) AAC AMT Excess Usage Amount . Subject to clauses 3(c)(iv) through 3(c)(viii):

 

  (1) Allocated AMT NOLs . The aggregate amount of Pre-Determination Date AMT NOLs allocated to, and available for use by, the AAC Subgroup to offset income for AMT purposes shall be an aggregate amount equal to the Allocated AAC AMT NOL Amount.

 

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   Amended and Restated Tax Sharing Agreement


  (2) AMT NOL Usage Payment . The AAC Subgroup may utilize (i) prior to a Deconsolidation Event, Pre-Determination Date AMT NOLs to offset income for AMT purposes in an amount up to the Allocated AAC AMT NOL Amount (to the extent not previously utilized in a prior Taxable Period without regard to whether such AMT NOLs were directly or indirectly subject to the payment requirements of this clause 3(c)(iii)) or (ii) following a Deconsolidation Event, Pre-Determination Date AMT NOLs to offset income for AMT purposes in an amount up to the Post-Deconsolidation Allocated AMT NOL Amount (to the extent not previously utilized in a prior Taxable Period without regard to whether such AMT NOLs were directly or indirectly subject to the payment requirements of this clause 3(c)(iii)). During any Taxable Period that the AAC Subgroup offsets income for AMT purposes by utilizing any portion of the Allocated AAC AMT NOL Amount or Post-Deconsolidation Allocated AMT NOL Amount, as the case may be, AAC shall make payments to AFGI within the time and in the manner prescribed hereunder in an amount equal to the excess of (Y) the AAC AMT NOL Usage Amount over (Z) the AAC Federal Tax Usage Amount.

 

  (3) AAC AMT NOL Usage Amount . During any Taxable Period that the AAC Subgroup offsets income for AMT purposes by utilizing any portion of the available Allocated AAC AMT NOL Amount or Post-Deconsolidation Allocated AMT NOL Amount with respect to any NOL Usage Tier or NOL Usage Tiers, as the case may be, set forth in the NOL Usage Table below (taking into account all prior AMT NOL utilization within each NOL Usage Tier during any Taxable Period), the AAC AMT NOL Usage Amount shall equal (Y) the applicable percentages with respect to the applicable NOL Usage Tier or NOL Usage Tiers, as the case may be, multiplied by (Z) (I) the AAC Notional AMT Amount attributable to the utilization of such portion of the Allocated AAC AMT NOL Amount or the Post-Deconsolidation Allocated AMT NOL Amount, as the case may be, within the applicable NOL Usage Tier or NOL Usage Tiers, as the case may be, MINUS (II) the Annual AMT NOL Usage Credit applicable with respect to such Taxable Period; provided that the utilization of the Annual AMT NOL Usage Credit in any Taxable Period shall not exceed the Maximum Annual AMT NOL Usage Credit.

 

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Amended and Restated Tax Sharing Agreement


AMT NOL Usage Tier

  

AAC AMT NOL Usage Amount

   Applicable Percentage

A

   The first $0.387 billion    15%

B

   The next $0.849 billion after AMT NOL Usage Tier A    40%

C

   The next $0.849. billion after AMT NOL Usage Tier B    10%

D

   The next $0.849 billion after AMT NOL Usage Tier C    15%

 

  (4) Annual AMT NOL Usage Credit Limitation . Notwithstanding any other provision of this agreement, (X) with respect to determining the AAC AMT NOL Usage Amount with respect to any Taxable Period, (I) any Annual AMT NOL Usage Credit that is not utilized in any prior Taxable Period, taking into account the Maximum Annual AMT NOL Usage Credit, and subject to the payment requirements of subclause 3(c)(iii)(2) may only be carried to the next succeeding Taxable Period and may not be carried into any other Taxable Period, (Y) the sum of the Annual AMT NOL Usage Credits utilized by the AAC Subgroup, after taking into account the Maximum Annual AMT NOL Usage Credit, shall not exceed in the aggregate $60 million throughout the period that the AAC Subgroup is required to make any payments pursuant to this paragraph 3 and (Z) the Annual AMT NOL Usage Credit shall not be utilized in the event that the AAC Federal Tax Usage Amount exceeds the AAC AMT NOL Usage Amount (as calculated before giving effect to such Annual AMT NOL Usage Credit).

 

  (5) Amounts shall be due and payable from AAC to AFGI pursuant to subparagraph 3(a) and clauses 3(c)(i), (ii) and (iii) without regard to whether the AAC Federal Tax Usage Amount or AAC AMT NOL Usage Amount arises prior, or subsequent, to a Deconsolidation Event.

 

  (iv) Post-Determination Date NOLs and AMT NOLs. Solely for purposes of subparagraph 3(c) or any other provision relating to payments under subparagraph 3(c):

 

  (1)

Post-Determination Date NOLs . Post-Determination Date NOLs shall be available for use by the AAC Subgroup at no cost and shall not be subject to any NOL usage payments under this subparagraph 3(c). Following the occurrence of a Deconsolidation Event, Post-Determination Date NOLs (to the extent not previously utilized by the

 

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   Amended and Restated Tax Sharing Agreement


  AAC Subgroup in any Taxable Period or portion thereof prior to the occurrence of a Deconsolidation Event) shall be allocated to, and available for use by, the AAC Subgroup.

 

  (2) Post-Determination Date AMT NOLs . Post-Determination Date AMT NOLs shall be available for use by the AAC Subgroup at no cost and shall not be subject to any NOL usage payments under this subparagraph 3(c). Following the occurrence of a Deconsolidation Event, Post-Determination Date AMT NOLs (to the extent not previously utilized by the AAC Subgroup in any Taxable Period or portion thereof prior to the occurrence of a Deconsolidation Event) shall be allocated to, and available for use by, the AAC Subgroup.

 

  (v) AAC Subgroup NOL and AMT NOL Carryforwards and Carrybacks . Solely for purposes of subparagraph 3(c) or any other provision relating to payments under subparagraph 3(c):

 

  (1) NOL Carryforwards . It is understood that to the extent that the AAC Subgroup has any available Post-Determination Date NOLs, solely for purposes of determining the amount of any NOL usage payments due to AFGI from AAC under this Tax Sharing Agreement pursuant to clauses 3(c)(i) and (ii), such Post-Determination Date NOLs shall be treated as being used prior to the utilization of any Allocated AAC NOL Amount, Post-Deconsolidation Allocated NOL Amount or AFGI NOL Amount.

 

  (2) AMT NOL Carryforwards . It is understood that to the extent that the AAC Subgroup has any available Post-Determination Date AMT NOLs, solely for purposes of determining the amount of any payments due to AFGI from AAC under this Tax Sharing Agreement pursuant to clause 3(c)(iii), such Post-Determination Date AMT NOLs shall be treated as being used prior to the utilization of any Allocated AAC AMT NOL Amount or Post-Deconsolidation Allocated AMT NOL Amount.

 

  (3)

NOL Carrybacks . It is understood that to the extent that the AAC Subgroup carries back any portion of the Allocated AAC NOL Amount to Taxable Periods beginning prior to January 1, 2011, solely for purposes of determining the amount of any NOL usage payments due to AFGI under this Tax Sharing Agreement pursuant to clauses 3(c)(i) and (ii), such portion of the Allocated AAC NOL Amount carried back to such prior Taxable Periods shall be treated

 

17

   Amended and Restated Tax Sharing Agreement


  as being utilized pursuant to subparagraph 3(c). Any such carryback by the AAC Subgroup shall be deemed to be a carryback of Post-Determination Date NOLs prior to a carryback of any portion of the Allocated AAC NOL Amount.

 

  (4) NOL Expiration . Solely for purposes of this paragraph 3(c), in any Taxable Period in which any portion (expressed in U.S. Dollars) of any Post-Determination Date NOLs (including any such NOLs comprising all or a portion of the Post-Deconsolidation Allocated NOL Amount) are deemed utilized pursuant to subclause 3(c)(iv)(1), an equivalent portion (expressed in U.S. Dollars) of the Allocated AAC NOL Amount (including any such NOLs comprising all or a portion of the Post-Deconsolidation Allocated NOL Amount), to the extent that the Allocated AAC NOL Amount has not been utilized in a prior Taxable Period, shall be characterized for purposes of subparagraph 3(c) as arising in the same Taxable Period that such portion of the Post-Determination Date NOLs arose and such portion of the Allocated AAC NOL Amount shall not expire for purposes of this subparagraph 3(c) until the latest Taxable Period to which such portion of the deemed utilized Post-Determination Date NOLs can be carried forward pursuant to Section 172 of the Code.

 

  (5) AMT NOL Expiration . Solely for purposes of this paragraph 3(c), in any Taxable Period in which any portion (expressed in U.S. Dollars) of any Post-Determination Date AMT NOLs (including any such NOLS comprising all or a portion of the Post-Deconsolidation Allocated AMT NOL Amount) are deemed utilized pursuant to subclause 3(c)(iv)(2), an equivalent portion (expressed in U.S. Dollars) of the Allocated AAC AMT NOL Amount (including any such NOLs comprising all or a portion of the Post-Deconsolidation Allocated AMT NOL Amount), to the extent that the Allocated AAC AMT NOL Amount has not been utilized in a prior Taxable Period, shall be characterized for purposes of subparagraph 3(c) as arising in the same Taxable Period that such portion of the Post-Determination Date AMT NOLs arose and such portion of the Allocated AAC AMT NOL Amount shall not expire for purposes of this subparagraph 3(c) until the latest Taxable Period to which such portion of the deemed utilized Post-Determination Date AMT NOLs can be carried forward pursuant to Section 172 of the Code.

 

18

   Amended and Restated Tax Sharing Agreement


  (6) For the avoidance of doubt, none of the provisions in subclauses 3(c)(v)(1), 3(c)(v)(4), or 3(c)(v)(5) shall affect the calculation of the AAC Subgroup’s Separate Subsidiary Tax for any Taxable Period.

 

  (vi) Cash Grant . The payment of the Cash Grant shall credit against the first $5 million of payments owed by AAC to AFGI in the aggregate with respect to any Taxable Period under each of NOL Usage Tier A, NOL Usage Tier B and NOL Usage Tier C in clauses 3(c)(i), (ii) or (iii), provided that the sum of credits for all tiers shall not exceed $15 million.

 

  (vii) AFGI NOL Usage . Notwithstanding any other provision of this Tax Sharing Agreement and solely for purposes of clauses 3(b)(iv) and 3(c)(i) through 3(c)(vii):

 

  (1) AFGI and any AFGI Subsidiary shall be treated as using any available portion of the AFGI NOL Amount prior to the utilization of any Allocated AAC NOL Amount or Post-Determination Date NOLs.

 

  (2) (Y) Prior to a Deconsolidation Event, AFGI and any AFGI Subsidiary shall be able to utilize NOLs of the Group (other than any portion of the Allocated AAC NOL Amount and the Post-Determination Date NOLs, except as provided in subclause 3(c)(vii)(3)) in an amount equal to the AFGI NOL Amount, and (Z) following a Deconsolidation Event, the Group shall be able to utilize the aggregate amount of the Group’s NOLs, other than the Post-Deconsolidation Allocated NOL Amount and the Post-Determination Date NOLs, in each case, to the fullest extent permitted by the Code without limitation or any requirement to pay or otherwise compensate AAC or any AAC Subsidiary.

 

  (3)

Prior to a Deconsolidation Event, and subject to subclauses 3(c)(vii)(1) and (2) above, if AFGI or any AFGI Subsidiary utilizes (Y) any Allocated AAC NOL Amount to the extent not previously utilized by (I) the AAC Subgroup pursuant to clause 3(c)(i) or (II) any Member of the AFGI Subgroup pursuant to this subclause 3(c)(vii)(3) or (Z) any Post-Determination Date NOLs to the extent not previously utilized by (I) the AAC Subgroup pursuant to clause 3(c)(iv) or (II) any Member of the AFGI Subgroup pursuant to this subclause 3(c)(vii)(3), AFGI shall pay AAC pursuant to this Tax Sharing Agreement an amount equal to 50% multiplied by the aggregate amount of the AFGI Subgroup’s Federal Tax liability for the Taxable Period for

 

19

   Amended and Restated Tax Sharing Agreement


  which such NOLs were used that otherwise would have been paid by AFGI, or an AFGI Subsidiary, if such portion of the Allocated AAC NOL Amount or Post-Determination Date NOLs were not available for its use. Any such use by AFGI and the AFGI Subsidiaries shall be deemed to be a use of the Allocated AAC NOL Amount prior to a use of the Post-Determination Date NOLs. In addition, any Allocated AAC NOL Amount or Post-Determination Date NOLs used by AFGI or any AFGI Subsidiary pursuant to this subclause 3(c)(vii)(3) are no longer specifically allocated to, or made available for use by, the AAC Subgroup.

 

  (viii) NOL Usage Table. In the event that the Allocated AAC NOL Amount is less than $3.65 billion or the Allocated AAC AMT NOL Amount is less than $2.934 billion, the size of each NOL Usage Tier provided in the NOL Usage Table will be reduced proportionally. Such proportionate reduction shall be applied separately to the Allocated AAC NOL Amount and the Allocated AAC AMT NOL Amount. For the avoidance of doubt, if the Allocated AAC NOL Amount is 10% less than $3.65 billion and the Allocated AAC AMT NOL Amount is 20% less than $2.934 billion, then the size of each NOL Usage Tier within the Allocated AAC NOL Amount will be reduced by 10% as compared to the representative usage tiers shown above and the size of each usage tier within the Allocated AAC AMT NOL Amount will be reduced by 20% as compared to the representative tiers shown in the NOL Usage Table.

4. Estimated Tax Payments . No later than two (2) business days prior to the dates specified for payment of estimated tax in Section 6655 of the Code, each Subsidiary (including the AAC Subgroup) shall pay to Parent an amount equal to the estimated Separate Subsidiary Tax liability of such Subsidiary as required by clauses 3(a)(i) and (ii).

5. Redeterminations of Tax Liabilities.

 

  (a)

In General . In the event of any redetermination of any item of income, gain, loss, deduction or credit of any member of the Group for any Taxable Period as a result of an examination by the IRS, any final action by the IRS on an amended return or a claim for refund, the execution of a closing agreement with the IRS or a judicial decision which has become final including, in each case, any determination relating to whether any party to this Tax Sharing Agreement is properly characterized as being includable in the Group or AAC Subgroup (a “ Final Determination ”), or in the event of any redetermination of any item of income, gain, loss, deduction or credit of any member of the Group for any Taxable Period

 

20

   Amended and Restated Tax Sharing Agreement


  which is reflected in an application that is filed with the IRS for a tentative carryback adjustment pursuant to Section 6411 of the Code and that results in a payment by the IRS (a “ Carryback Payment ”), the Subsidiary Separate Tax, and any other payments required pursuant to subparagraph 3(c), in a manner consistent with this Tax Sharing Agreement with respect to each Subsidiary shall be recomputed for such Taxable Period to take into account such redetermination (including any penalties or additions to tax) in a manner consistent with such revised treatment, and the payments pursuant to paragraph 3 and any tax attributes shall be appropriately adjusted. For the avoidance of doubt, any redetermination that occurs in connection with an application filed with the IRS for a tentative carryback adjustment pursuant to Section 6411 of the Code shall not be treated as being a result of a Final Determination.

 

  (b) Procedure Relating to Final Determinations . In the case of any adjustment described in the first sentence of subparagraph 5(a) that occurs in connection with a Final Determination, any payment between Parent and any of the Subsidiaries required by such adjustment shall be paid within seven (7) days of the date of a Final Determination with respect to such redetermination, or as soon as such adjustment can practicably be calculated, if later. Such payment shall be made together with interest for the period from the due date for tax returns for the Taxable Period for which tax liability was recomputed to the date of payment at the rate provided for underpayments in Section 6621 of the Code in the case of payments from any Subsidiary to Parent and at the rate provided for overpayments in Section 6621 of the Code in the case of payments to any Subsidiary by Parent.

 

  (c) Procedure Relating to Carryback Payments . In the case of any adjustment described in the first sentence of subparagraph 5(a) that occurs in connection with a Carryback Payment, any payment between Parent and any of the Subsidiaries required by such adjustment shall be made by wire transfer on the same day that the Carryback Payment is received in immediately available funds from the IRS. Any payment between Parent and any of the Subsidiaries that is described in the first sentence of this subparagraph 5(c) shall not be accompanied by the payment of any additional amount representing interest.

 

  (d) Trust . Any Carryback Payment received by Parent and any payment received by Parent from the IRS as a result of a claim for refund of federal tax (any such payments as a result of claims for refund and any Carryback Payments are referred to collectively as “ Recovery Payments ”), and any rights (including, without limitation, all general intangibles related thereto and all proceeds thereof) of Parent to receive a Recovery Payment, shall be held by Parent in trust for AAC to the extent that the amount of the Recovery Payment does not exceed:

 

21

   Amended and Restated Tax Sharing Agreement


  (i) in the case of a Recovery Payment that is a Carryback Payment, the amount that would, upon receipt of the Recovery Payment, be required to be paid by Parent to AAC pursuant to subparagraphs 5(a) and 5(c); or

 

  (ii) in the case of a Recovery Payment that is received by Parent from the IRS as a result of a claim for refund of federal income tax, the amount that would, after the Final Determination relating to the claim for refund, be required to be paid by Parent to AAC pursuant to subparagraphs 5(a) and 5(b).

 

  (e) Provisions Relating to Trust . All amounts held by Parent in trust hereunder shall be held in (and, to the extent reasonably practicable, Parent shall cause third parties to remit such amounts directly to) a segregated account maintained by The Bank of New York Mellon (A) in which Parent shall not deposit, or permit to be deposited, any other amounts (other than earnings on amounts held in trust as contemplated hereby), (B) the title of which such segregated account expressly states that Parent is the account owner as trustee for the benefit of AAC and (C) with respect to which AAC holds a perfected security interest to the extent permitted under applicable law. In furtherance of the foregoing, Parent granted to AAC effective as of November 19, 2009 a security interest in such segregated account, all cash balances from time to time credited to such account and all proceeds of the foregoing. Notwithstanding any provision in this Tax Sharing Agreement to the contrary, the immediately preceding sentence shall be governed by the internal laws of the State of Wisconsin, without regard to conflicts of law principles that provide for the application of the laws of another jurisdiction.

 

  (f) Security Interest . To the extent that the provisions of subparagraph 5(d) are determined to not establish a trust for the benefit of AAC, Parent shall grant to the extent permitted under applicable law to AAC effective as of the Effective Date, to secure Parent’s payment and performance of any obligations owed by it to AAC under this Tax Sharing Agreement, a first priority security interest in all rights (including, without limitation, all general intangibles related thereto and all proceeds thereof) of Parent to receive Recovery Payments to the extent that the amount of the particular Recovery Payment does not exceed:

 

  (i) in the case of a Recovery Payment that is a Carryback Payment, the amount that would, upon receipt of the Recovery Payment, be required to be paid by Parent to AAC pursuant to subparagraphs 5(a) and 5(c); or

 

  (ii) in the case of a Recovery Payment that is received by Parent from the IRS as a result of a claim for refund of federal income tax, the amount that would, after the Final Determination relating to the claim for refund, be required to be paid by Parent to AAC pursuant to subparagraphs 5(a) and 5(b).

 

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   Amended and Restated Tax Sharing Agreement


  (g) Further Actions . To the extent permitted under applicable law: (i) Parent agrees to execute and deliver such agreements, instruments, and other documents, and take such actions, as are reasonably necessary and/or reasonably requested by AAC to protect, perfect, and maintain the perfection of such security interest (including any account control agreement), and hereby authorizes AAC to file any UCC financing statement or other document in furtherance thereof; (ii) Parent irrevocably appoints AAC and its agents as Parent’s attorney, with power to receive, open and dispose of all mail addressed to Parent and to endorse Parent’s name upon any instruments (including any refund checks) that may come into AAC’s or its agents’ possession, in each case with respect to the collateral pledged hereunder to AAC; (iii) the foregoing power of attorney is coupled with an interest and may not be revoked by Parent; and (iv) notwithstanding any provision in this Agreement to the contrary, the provisions of subparagraphs 5(f) and this subparagraph 5(g) shall be governed by the internal laws of the State of Wisconsin, without regard to conflicts of law principles that provide for the application of the laws of another jurisdiction.

6. Filing of Tax Returns, Payment of Tax, Etc. The provisions of this paragraph 6 shall be subject to Sections 1.08 and 3.01 of the Cooperation Agreement:

 

  (a) Parent as Agent . Each Subsidiary hereby appoints Parent as its agent as long as such Subsidiary is a Member of the Group or such Subsidiary’s income is included in the consolidated federal tax return filed by the Group, in each case, for purposes of filing such consolidated federal income tax returns, making any election, application or taking any action in connection therewith on behalf of the Members of the Group. Each Subsidiary hereby consents to the filing of such returns and the making of such elections and applications.

 

  (b) Cooperation . Each of the Subsidiaries shall cooperate with Parent in the filing of any consolidated federal income tax returns for the Group by maintaining such books and records and providing such information as may be necessary or useful in the filing of such returns and executing any documents and taking any actions which Parent may reasonably request in connection therewith. Each Member of the Group will provide Parent with such information or any powers of attorney concerning such returns and the application of this Tax Sharing Agreement as Parent may reasonably request.

 

  (c) Payment of Tax . For every Taxable Period, Parent will pay or discharge, or cause to be paid or discharged, the consolidated Federal Tax liability or AMT liability, including payments of estimated tax, of the Group.

 

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   Amended and Restated Tax Sharing Agreement


  (d) Tax and Loss Bonds . To the extent that the purchase of tax and loss bonds is allowable under the Code, and is to the advantage of the Group, such purchase will be made.

 

  (e) Elections with Respect to an Adjustment Event or Deconsolidation Event .

 

  (i) Unified Loss Elections .

 

  (1) Deconsolidation Event . With respect to any Taxable Period that includes a Deconsolidation Event, AFGI, so long as it is the parent of the Group (or a new common parent if the Group remains in existence under Treasury Regulation Section 1.1502-75(d)(3)), shall, subject to the prior review and approval of the Rehabilitator, make valid and timely elections pursuant to Treasury Regulation Section 1.1502-36, to the extent permitted and provided for thereunder, such that (Y) the NOLs of the AAC Subgroup that exist immediately following such Deconsolidation Event will be an amount equal to the sum of the Post-Determination Date NOLs existing as of the Deconsolidation Event (to the extent not previously utilized in a prior Taxable Period by the Group) and the Post-Deconsolidation Allocated NOL Amount, and (Z) no reduction in the tax basis of any asset of the AAC Subgroup will be required pursuant to Treasury Regulation Section 1.1502-36(d)(4)(i)(D) and no reduction in the amount of any deferred deduction will be required pursuant to Treasury Regulation Section 1.1502-36(d)(4)(i)(C).

 

  (2)

Adjustment Event . With respect to any Taxable Period that includes an Adjustment Event, AFGI, so long as it is the parent of the Group (or a new common parent if the Group remains in existence under Treasury Regulation Section 1.1502-75(d)(3)), shall, subject to the prior review and approval of the Rehabilitator, make valid and timely elections pursuant to Treasury Regulation Section 1.1502-36, to the extent permitted and provided for thereunder, such that (Y) the NOLs of the AAC Subgroup that exist immediately following such Adjustment Event will be an amount equal to the sum of the Post-Determination Date NOLs existing as of the Adjustment Event (to the extent not previously utilized in a prior Taxable Period by the Group) and the Post-Deconsolidation Allocated NOL Amount (determined as if the date of the Adjustment Event were a Deconsolidation Event), and (Z) no reduction in the tax basis of any asset of the AAC Subgroup will be required

 

24

   Amended and Restated Tax Sharing Agreement


  pursuant to Treasury Regulation Section 1.1502-36(d)(4)(i)(D) and no reduction in the amount of any deferred deduction will be required pursuant to Treasury Regulation Section 1.1502-36(d)(4)(i)(C).

 

  (ii) Protective Deconsolidation Elections . With respect to each Taxable Period of the Group, if AAC or the Rehabilitator notifies AFGI, at least thirty (30) days before the Group tax return is to be filed, that AAC or the Rehabilitator has reasonably determined that there exists uncertainty as to whether or not a Deconsolidation Event or Adjustment Event has occurred during such Taxable Period, AFGI, so long as it is the parent of the Group (or a new common parent if the Group remains in existence under Treasury Regulation Section 1.1502-75(d)(3)), shall, subject to the prior review and approval of the Rehabilitator, make such protective elections or take other similar actions, to the extent permitted by law, so that if such a Deconsolidation Event or Adjustment Event were determined subsequently to have occurred during such Taxable Period, the results contemplated by clause 6(e)(i) would be achieved to the maximum extent permitted thereunder.

 

  (iii) Additional Relief . In addition, if AAC or the Rehabilitator believes that a Deconsolidation Event or Adjustment Event may have occurred in a Taxable Period for which no election or protective election was made pursuant to Treasury Regulation Section 1.1502-36, and if AAC or the Rehabilitator desires to obtain relief from the IRS (whether under Treasury Regulation Section 301.9100 or otherwise) for the failure to make such an election, AFGI shall reasonably cooperate with AAC and the Rehabilitator in obtaining such relief; provided , however , that (i) any costs incurred in connection with obtaining any such relief shall be borne solely by AAC and (ii) AFGI is permitted to review and comment on any written materials provided to the IRS with respect to such relief and attend any meetings or participate in any other communication with the IRS.

 

  (iv) Ratable Allocation Election . If a Deconsolidation Event occurs on a date other than the last day of a Taxable Period of the Group, no election under Treasury Regulation Sections 1.1502-76(b)(2)(ii) or (iii) (a “ratable allocation” election) shall be made in connection with determining the allocation of the items of the AAC Subgroup between the portion of such Taxable Period that ends on the date of the Deconsolidation Event and the remaining portion of such Taxable Period.

 

25

   Amended and Restated Tax Sharing Agreement


  (v) Consolidated Return Filing by AAC . For the first Taxable Period of AAC that ends after a Deconsolidation Event, AAC shall make a timely election to file a consolidated federal income tax return with the other members of the AAC Subgroup.

 

  (vi) AMT Credit Allocation. To the extent permissible under applicable law, upon a Deconsolidation Event AFGI shall allocate to AAC the amount of any unused AMT credits allocable to any AAC AMT.

 

  (vii) Termination . AFGI’s obligations to make elections under this subparagraph 6(e) shall terminate upon the occurrence of any event described in clauses 6(d)(iv), (vii) or (viii) of the Cost Allocation Agreement.

 

  (f) Allocation Methodologies and Tax Assumptions .

 

  (i) NOL Allocation . The portion of any NOLs generated during the Taxable Period ending December 31, 2011 shall be allocated to either the Pre-Determination Date NOLs or the Post-Determination Date NOLs on the basis of a deemed closing, as of the end of the Determination Date, of the books and records of the AAC Subgroup and the AFGI Subgroup, in each case, as determined on a Separate Subsidiary Basis.

 

  (ii) Group Tax Assumptions . For purposes of determining amounts of the Group’s NOLs, AMT NOLs, AMT credits, taxable income (including any tax item or attribute utilized in determining taxable income) or any other amounts or attributes relevant with respect to determining any payable pursuant to this Tax Sharing Agreement, for Federal Tax and AMT purposes (i) the surplus notes issued by AAC in June 2010 will be considered indebtedness issued by AAC for federal income tax purposes, (ii) the aggregate issue price of the surplus notes issued by AAC in June 2010 and subject to a call option letter agreement shall be treated as equal to $232 million and (iii) the aggregate issue price of the remaining surplus notes issued by AAC in June 2010 shall be treated as equal to $1,060 million.

7. State and Local Taxes . In the event that any of the Subsidiaries and Parent is required to file, or elects to file, any combined or consolidated (or similar) state or local income or franchise tax returns or is treated as a member of a unitary group with any Member of the Group, then Parent and any Members of the Group that are required to be included in such returns, or that are requested to be included in such returns by Parent, shall join in the filing thereof, and Parent’s obligations to make payments to taxing authorities and the Member’s rights to payments from each other shall be determined in a manner as similar as possible to that provided herein for Federal Tax purposes, except that the use by the AAC Subgroup of net operating losses available for state and local tax purposes will be at no cost to AAC.

 

26

   Amended and Restated Tax Sharing Agreement


8. Resolution of Disputes .

 

  (a) Except as provided in subparagraph 8(b), if Parent and any Subsidiary are unable to agree upon the calculation, basis or determination of any payments under this Tax Sharing Agreement, after good faith discussions in an attempt to resolve such dispute, the dispute shall be referred to a mutually agreed upon independent accounting firm for resolution. The determination of the accounting firm will be made within sixty (60) days after being selected and shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover and Parent shall pay to such Subsidiary or such Subsidiary shall to pay to Parent, as the case may be, such amount, if any, within ten (10) days of the accounting firm’s decision. The fees, costs and all other direct or indirect expenses of the accounting firm shall be shared equally by Parent and the applicable Subsidiary.

 

  (b) In the event that (i) Parent believes any Subsidiary within the AAC Subgroup (including AAC) or the Rehabilitator to be, or (ii) any Subsidiary within the AAC Subgroup (including AAC) or the Rehabilitator, solely with respect to paragraph 5 and subparagraph 6(e), believes Parent to be, in material breach of, or otherwise not complying with their respective material obligations under, this Tax Sharing Agreement, such party shall provide the alleged breaching or non-complying party with a written notice (copied to their last known legal counsel) describing, in reasonable detail, the nature of the alleged breach or non-compliance. Following delivery of such written notice, the parties shall attempt, in good faith, to resolve their dispute. The party served with a notice of breach or non-compliance shall have thirty (30) days to cure the alleged breach or non-compliance. In the event that there is no cure and the parties are unable to resolve their dispute, any party alleging such breach or non-compliance may, not less than forty-five (45) days following delivery of such written notice, seek a judgment from the Rehabilitation Court that the other party has breached this Tax Sharing Agreement. Solely for purposes of resolving such dispute, Parent shall consent to the jurisdiction of the Rehabilitation Court. In the event that the Rehabilitation Court enters a final, non-appealable order in favor of any party alleging such breach or non-compliance, such party may ask the court to grant such further relief as the court deems appropriate in light of the nature and severity of the breach or non-performance, including specific performance, termination of the parties’ obligations under this agreement and/or monetary damages.

 

27

   Amended and Restated Tax Sharing Agreement


  (c) The obligations and procedures under subparagraph 8(b) shall terminate after the due date (including extensions) of the Group’s consolidated federal tax return for any Taxable Period if:

 

  (i) all of the following conditions are met as of the beginning of the immediately following Taxable Period

 

  (1) no Pre-Determination Date NOLs remain available for use by the AAC Subgroup to offset income for Federal Tax purposes pursuant to the provisions of subclauses 3(c)(i)(1) and (2);

 

  (2) no Pre-Determination Date AMT NOLs remain available for use by the AAC Subgroup to offset income for AMT purposes pursuant to the provisions of subclause 3(c)(iii); and

 

  (3) no NOLs comprising the AFGI NOL Amount exist regardless of whether AFGI has consented to the use of such NOLs by the AAC Subgroup to offset income for Federal Tax purposes pursuant to subclause 3(c)(i)(3);

or

 

  (ii) a Deconsolidation Event has occurred during such Taxable Period.

9. Adjudications . In any audit, conference or other proceeding with the IRS, or in any judicial proceedings concerning the determination of the federal income tax liabilities of the Group or any of its Members with respect to any Taxable Period during which each Subsidiary is, or was, a Member of the Group, the Group and each of its Members shall be represented by persons selected by Parent. The settlement and terms of settlement of any issues relating to any such proceeding shall be in the sole discretion of Parent, and each Subsidiary appoints Parent as its agent for the purpose of proposing and concluding any such settlement. The provisions of this paragraph 9 shall be subject to Section 1.08 of the Cooperation Agreement.

10. Binding Effect; Successors . This Tax Sharing Agreement shall be binding upon each of the parties hereto, including each Member of the Group, whether or not such Member was a Member upon the execution of this Tax Sharing Agreement, and each party hereto consents to the terms hereof and guarantees the performance of the agreements contained herein. Parent shall cause each future Member of such Group to assent to the terms of this Tax Sharing Agreement promptly after becoming a Member of such Group. Each party hereto hereby assents to each new Member becoming a party to this Tax Sharing Agreement. This Tax Sharing Agreement shall inure to the benefit of and be binding upon any successors or assigns of the parties hereto.

11. Equitable Interpretation . This Tax Sharing Agreement is intended to allocate the federal income tax liabilities and benefits of the Group in an equitable manner, and any situation

 

28

   Amended and Restated Tax Sharing Agreement


or circumstance concerning such allocation which is not specifically contemplated hereby or provided for herein shall be dealt with in a manner consistent with the underlying principles of allocation of this Tax Sharing Agreement.

12. Costs and Expenses . Except as otherwise provided herein or in the Cost Allocation Agreement, any and all costs and expenses incurred in connection with (i) the preparation of a consolidated or combined (or similar) federal, state or local income or franchise tax return which includes the income, gain, loss, deductions or credits of members of the Group, (ii) the application of the provisions of this Tax Sharing Agreement to the parties hereto or third parties, or (iii) any audit, conference or other proceeding involving the IRS or any other taxing authority to the extent that it relates to any item of income, gain, loss, deduction or credit of any Member of the Group (other than costs and expenses resulting from Parent’s failure to file a timely income tax return (including an estimated return) or to pay with such return the tax shown on such return or, if no such return was filed, the tax required to be shown on such return) shall be allocated between Parent and each Subsidiary in a reasonable manner as determined by Parent.

13. Effect of Agreement . This Tax Sharing Agreement shall determine the liability of Parent and each Subsidiary (including, to the extent provided herein, the AAC Subgroup) to each other as to the matters provided for herein, whether or not such determination is effective for purposes of the Code or the Treasury Regulations promulgated thereunder, financial reporting or any other matters. In the event of any conflict or inconsistency between this Tax Sharing Agreement and the provisions of the Mediation Agreement, the provisions of this Tax Sharing Agreement shall govern.

14. References . Except as otherwise specifically provided herein, any references to the sections of the Code, or any Treasury Regulations promulgated thereunder, shall be deemed to refer to any successor provisions and shall refer to such sections, Treasury Regulations or provisions as in effect from time to time. Except as otherwise specifically provided herein, all paragraph references are to paragraphs contained in this Tax Sharing Agreement.

15. Termination .

 

  (a) This Tax Sharing Agreement shall be terminated on the happening of any of the following events:

 

  (i) If the parties agree, in writing, to terminate this Tax Sharing Agreement;

 

  (ii) If the Group fails to file a consolidated federal income tax return for any Taxable Period;

 

  (iii) With respect to any Subsidiary (other than AAC or any AAC Subsidiary), if such Subsidiary ceases to be a Member of the Group for any reason; provided , however , AAC shall not be required to make payments under clause 3(a)(ii) with respect to any Taxable Period beginning after a Deconsolidation Event; or

 

29

   Amended and Restated Tax Sharing Agreement


  (iv) A condition to the Closing Date not being able to be satisfied.

Notwithstanding the termination of this Tax Sharing Agreement in whole or with respect to any Member, its provisions (X) will remain in effect with respect to any portion of the Taxable Period in which termination occurs which is required to be included in the consolidated federal tax return of the Group, (Y) will remain in effect for all purposes (including with respect to any Subsidiary who ceases to be a member of the Group) with regard to amounts outstanding under this Tax Sharing Agreement prior to its termination and any payments required to be made to Parent by any Subsidiary, or by Parent to any Subsidiary, hereunder including any payments required pursuant to paragraphs 3, 4 and 5 and (Z) will remain in effect with respect to the matters dealt with in subparagraphs 3(a) and (c) and paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 hereof; provided , that in the event that a condition to the Closing Date cannot be satisfied, amounts held in escrow pursuant to clause 3(a)(iii) shall be released to AAC.

16. Notices . Any payment, notice or communication required or permitted to be given under this Tax Sharing Agreement shall be deemed to have been given when deposited in the United States mail, postage prepaid, addressed as follows:

If to Parent:

Ambac Financial Group, Inc.

One State Street Plaza

New York, New York 10004

If to AAC:

Ambac Assurance Corporation

One State Street Plaza

New York, New York 10004

or to such other address as a party shall furnish in writing to the other party.

17. Execution in Counterparts . This Tax Sharing Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Tax Sharing Agreement.

18. Parties to this Tax Sharing Agreement . Nothing herein shall in any manner create any obligations or establish any rights against any party to this Tax Sharing Agreement in favor of any person not a party to this Tax Sharing Agreement; provided , however , that, solely with respect to paragraph 5 and subparagraphs 6(e) and 8(b), the Rehabilitator shall be an express third party beneficiary of this Tax Sharing Agreement to the same extent as if it were a party to this Tax Sharing Agreement.

 

30

   Amended and Restated Tax Sharing Agreement


IN WITNESS WHEREOF, the parties have caused this Tax Sharing Agreement to be executed as of the date first above written.

 

AMBAC FINANCIAL GROUP, INC.
By:  

/s/ Stephen M. Ksenak

Name:   Stephen M. Ksenak
Title:   Senior Managing Director
  and General Counsel
AMBAC ASSURANCE CORPORATION
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer
AMBAC INVESTMENTS INC.
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer
AMBAC AII CORPORATION
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer
AMBAC ASSET FUNDING CORPORATION
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer

 

31

   Amended and Restated Tax Sharing Agreement


AMBAC CAPITAL FUNDING, INC.
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer
AMBAC CAPITAL CORPORATION
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer
CONNIE LEE HOLDINGS, INC.
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer
AMBAC BERMUDA LTD.
By:  

/s/ Robert Eisman

Name:   Robert Eisman
Title:   Director
EVERSPAN FINANCIAL GUARANTEE CORP.
By:  

/s/ David Trick

Name:   David Trick
Title:   Chief Financial Officer

 

32

   Amended and Restated Tax Sharing Agreement

EXHIBIT 21.01

List of Subsidiaries of Ambac Financial Group, Inc.

The following is a list of significant and other subsidiaries of Ambac Financial Group, Inc. The state of incorporation of each subsidiary is included in parentheses after its name.

 

Ambac Assurance Corporation    (Wisconsin)
Ambac Assurance UK Limited    (United Kingdom Insurance Company)
Ambac Capital Corporation    (Delaware)
Ambac Capital Funding, Inc.    (Delaware)
Ambac Credit Products, LLC    (Delaware)
Ambac Investments, Inc.    (Delaware)
Ambac Financial Services, LLC    (Delaware)
Everspan Financial Guarantee Corp.    (Wisconsin)
Connie Lee Holdings, Inc.    (Delaware)
Ortley Investments LLC    (Delaware)
Orient Bay, LLC    (Delaware)
Ambac (Bermuda) Ltd.    (Bermuda)
AE Global Holdings, LLC    (Delaware)
AE Global Asset Funding, LLC    (Delaware)
AE Global Investments, LLC    (Delaware)
Ambac Japan Co., Ltd    (Japan)
Ambac Conduit Funding LLC    (Delaware)
Ambac Credit Products Limited    (United Kingdom)
Juneau Investments LLC    (Delaware)
Aleutian Investments LLC    (Delaware)

Exhibit 24.01

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below constitutes and appoints each of Stephen M. Ksenak and William J. White, as his or her true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign Ambac Financial Group, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013 to be filed with the Securities and Exchange Commission and any and all amendments thereto, and any and all instruments and documents filed as a part of or in connection with said Form 10-K or amendments thereto, and does hereby grant unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent shall do or cause to be done by virtue hereof.

 

Signature

 

Title

 

Date

/s/ Diana N. Adams

Diana N. Adams

 

President, Chief Executive Officer

and Director

(Principal Executive Officer)

  February 28, 2014

/s/ David Trick

David Trick

 

Senior Managing Director and

Chief Financial Officer

(Principal Financial Officer)

  February 28, 2014

/s/ Robert B. Eisman

Robert B. Eisman

 

Senior Managing Director and

Chief Accounting Officer

(Principal Accounting Officer)

  February 28, 2014

/s/ Eugene M. Bullis

Eugene M. Bullis

  Director   February 28, 2014

/s/ Victor E. Mandel

Victor E. Mandel

  Director   February 28, 2014

/s/ Jeffrey S. Stein

Jeffrey S. Stein

  Director   February 28, 2014

/s/ Nader Tavakoli

Nader Tavakoli

  Director   February 28, 2014

EXHIBIT 31.1

Ambac Financial Group, Inc.

Certifications

I, Diana N. Adam, certify that:

 

  1. I have reviewed this Annual Report on Form 10-K of Ambac Financial Group, Inc;

 

  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a -15(e) and 15d – 15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and


  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

By:  

/s/ Diana N. Adams

  Diana N. Adams
  President and Chief Executive Officer

Date: March 3, 2014

EXHIBIT 31.2

Ambac Financial Group, Inc.

Certifications

I, David Trick, certify that:

 

  1. I have reviewed this Annual Report on Form 10-K of Ambac Financial Group, Inc;

 

  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a -15(e) and 15d – 15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and


  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

By:  

/s/ David Trick

  David Trick
  Senior Managing Director, Chief Financial Officer and Treasurer

Date: March 3, 2014

EXHIBIT 32.1

Certification of CEO Pursuant to

18 U.S.C. Section 1350,

as Adopted Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Annual Report on Form 10-K of Ambac Financial Group, Inc. (the “Company”) for the year ended December 31, 2013, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Diana N. Adams, as Chief Executive Officer of the Company, hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of her knowledge:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ Diana N. Adams

Name:   Diana N. Adams
Title:   President and Chief Executive Officer
Date:   March 3, 2014

EXHIBIT 32.2

Certification of CFO Pursuant to

18 U.S.C. Section 1350,

as Adopted Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Annual Report on Form 10-K of Ambac Financial Group, Inc. (the “Company”) for the year ended December 31, 2013, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), David Trick, as Chief Financial Officer of the Company, hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ David Trick

Name:   David Trick
Title:   Senior Managing Director, Chief Financial Officer and Treasurer
Date:   March 3, 2014

Exhibit 99.3

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

 

     X   
   :   
   :   
In re    :   
   :    Chapter 11
AMBAC FINANCIAL GROUP, INC.,    :   
   :    Case No. 10-15973 (SCC)
   :   
         Debtor.    :   
   :   
     X   

 

 

SECOND MODIFIED FIFTH AMENDED PLAN OF REORGANIZATION

OF AMBAC FINANCIAL GROUP, INC.

 

 

Peter A. Ivanick

Allison H. Weiss

HOGAN LOVELLS US LLP

875 Third Avenue

New York, NY 10022

Attorneys for the Debtor and Debtor in Possession

Dated: April 29, 2013

            New York, New York


TABLE OF CONTENTS

 

             Page  

ARTICLE I. DEFINED TERMS, RULES OF CONSTRUCTION, COMPUTATION OF TIME, AND GOVERNING LAW

     1   
  A.   Defined Terms      1   
  B.   Rules of Construction      34   
  C.   Computation of Time      34   
  D.   Governing Law      34   
  E.   Reference to the Debtor or the Reorganized Debtor      35   

ARTICLE II. ADMINISTRATIVE CLAIMS, ACCRUED PROFESSIONAL COMPENSATION CLAIMS, PRIORITY TAX CLAIMS, U.S. TRUSTEE FEES, AND INDENTURE TRUSTEE FEES

     35   
  A.   Administrative Claims      35   
  B.   Administrative Claims Bar Date      35   
  C.   Accrued Professional Compensation      35   
  D.   Priority Tax Claims      36   
  E.   U.S. Trustee Fees      36   
  F.   Indenture Trustee Fees and Informal Group Fees      36   

ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS

     37   
  A.   Summary of Classification of Claims and Equity Interests      37   
  B.   Treatment of Claims and Equity Interests      38   
  C.   Subordinated Claims      42   
  D.   Confirmation Pursuant to Bankruptcy Code Section 1129(b)      42   
  E.   Elimination of Vacant Classes      42   
  F.   Controversy Concerning Impairment      42   
ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN      42   
  A.   Sources of Consideration for Plan Distributions      42   
  B.   New Organizational Documents      43   
  C.   Continued Corporate Existence      43   
  D.   Vesting of Assets in the Reorganized Debtor      43   
  E.   New Common Stock      43   
  F.   Warrants      43   
  G.   Section 1145 Exemption      44   
  H.   Cancellation of Securities and Indentures      44   
  I.   Amended Plan Settlement      44   

 

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  J.   IRS Settlement      45   
  K.   Directors and Officers of the Reorganized Debtor      45   
  L.   Corporate Action      45   
  M.   Effectuating Documents; Further Transactions      46   
  N.   Exemption from Certain Taxes and Fees      46   

ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

     46   
  A.   Assumption or Rejection of Executory Contracts and Unexpired Leases      46   
  B.   Cure of Defaults for Assumed Executory Contracts and Unexpired Leases      47   
  C.   Claims Based on Rejection of Executory Contracts and Unexpired Leases      47   
  D.   Nonoccurrence of Effective Date      47   

ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS

     48   
  A.   Record Date for Distributions      48   
  B.   Timing and Calculation of Amounts to be Distributed      48   
  C.   Disbursing Agent      48   
  D.   Rights and Powers of Disbursing Agent      49   
  E.   Delivery of Distributions and Undeliverable or Unclaimed Distributions      49   
  F.   Compliance with Tax Requirements      51   
  G.   Allocations      51   
  H.   Setoffs and Recoupment      51   
  I.   Claims Paid or Payable by Third Parties      52   

ARTICLE VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS

     52   
  A.   Resolution of Disputed Claims      52   
  B.   Disallowance of Claims      54   
  C.   Amendments to Claims      54   

ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS

     54   
  A.   Discharge of Claims and Termination of Equity Interests      54   
  B.   Injunction      55   
  C.   Exculpation      55   
  D.   General Releases by the Debtor      56   
  E.   General Releases by Holders of Claims and Equity Interests      56   
  F.   Releases Required Pursuant to the Stipulation of Settlement      57   
  G.   Release of Liens      58   
  H.   Limitation on Applicability of Discharge, Release, and Injunction Provisions on the United States      59   

 

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ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN

     60   
 

A.

  Conditions Precedent to Confirmation      60   
 

B.

  Conditions Precedent to Consummation      60   
 

C.

  Waiver of Conditions      60   
 

D.

  Effect of Nonoccurrence of Conditions      61   

ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN

     61   
 

A.

  Modification and Amendments      61   
 

B.

  Effect of Confirmation on Modifications      62   
 

C.

  Revocation or Withdrawal of the Plan      62   

ARTICLE XI. RETENTION OF JURISDICTION

     62   

ARTICLE XII. MISCELLANEOUS PROVISIONS

     64   
 

A.

  Immediate Binding Effect      64   
 

B.

  Additional Documents      65   
 

C.

  Payment of Statutory Fees      65   
 

D.

  Dissolution of Committee      65   
 

E.

  Reservation of Rights      65   
 

F.

  Successors and Assigns      66   
 

G.

  Service of Documents      66   
 

H.

  Further Assurances      66   
 

I.

  Term of Injunctions or Stays      67   
 

J.

  Entire Agreement      67   
 

K.

  Exhibits and Related Documents      67   
 

L.

  Severability of Plan Provisions      67   
 

M.

  Closing of Chapter 11 Case      67   
 

N.

  Waiver or Estoppel Conflicts      68   
 

O.

  Conflicts      68   

EXHIBITS

Exhibit A: Amended Tax Sharing Agreement

Exhibit B: Cooperation Agreement Amendment

Exhibit C: Cost Allocation Agreement

Exhibit D: New By-Laws

Exhibit E: New Certificate of Incorporation

Exhibit F: Offer Letter

 

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Exhibit G: Ruling Request Agreement

Exhibit H: Schedule of Assumed Executory Contracts and Leases

Exhibit I: Warrant Agreement

 

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INTRODUCTION

Ambac Financial Group, Inc. (the “ Debtor ”) respectfully proposes the following chapter 11 plan of reorganization (as amended, supplemented, or modified, the “Plan”). Capitalized terms used in the Plan and not otherwise defined shall have the meanings ascribed to such terms in Article I of the Plan.

ARTICLE I.

DEFINED TERMS, RULES OF CONSTRUCTION,

COMPUTATION OF TIME, AND GOVERNING LAW

 

A. Defined Terms

 

  1. 5.875% Debentures Due 2103 ” means those certain 5.875% debentures due on March 24, 2103 and issued pursuant to the 2001 Indenture.

 

  2. 5.95% Debentures Due 2035 ” means those certain 5.95% debentures due on December 5, 2035 and issued pursuant to the 2003 Indenture.

 

  3. 5.95% Debentures Due 2103 ” means those certain 5.95% debentures due on February 28, 2103 and issued pursuant to the 2001 Indenture.

 

  4. 7-1/2% Debentures Due 2023 ” means those certain 7-1/2% debentures due on May 1, 2023 and issued pursuant to the 1991 Indenture.

 

  5. 9-3/8% Debentures Due 2011 ” means those certain 9-3/8% debentures due on August 1, 2011 and issued pursuant to the 1991 Indenture.

 

  6. 9.50% Senior Notes Due 2021 ” means those certain 9.50% senior notes due on February 15, 2021 and issued pursuant to the 2008 Indenture.

 

  7. 1991 Indenture ” means that certain Indenture, dated as of August 1, 1991, between the Debtor and The Bank of New York Mellon, as successor indenture trustee to The Chase Manhattan Bank (National Association).

 

  8. 2001 Indenture ” means that certain Indenture, dated as of August 24, 2001, between the Debtor and The Bank of New York Mellon, as successor indenture trustee to The Chase Manhattan Bank (National Association).

 

  9. 2003 Indenture ” means that certain Indenture, dated as of April 22, 2003, between the Debtor and The Bank of New York Mellon, as successor indenture trustee to JPMorgan Chase Bank.

 

  10. 2008 Indenture ” means that certain Indenture, dated as of February 15, 2006 between the Debtor and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee, as supplemented by the Supplemental Indenture, dated as of March 12, 2008, between the Debtor and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee.


  11. AAC ” means Ambac Assurance Corporation.

 

  12. AAC Subgroup” means the subgroup of Affiliates, created pursuant to an amendment to the TSA entered into on June 7, 2010, of which AAC is the common parent, that are members of the Ambac Consolidated Group.

 

  13. Accrued Professional Compensation ” means all Claims for accrued fees and expenses for services rendered by a Professional through and including the Effective Date, to the extent such fees and expenses have not been paid pursuant to the Interim Compensation Order or any other order of the Bankruptcy Court and regardless of whether a fee application has been Filed for such fees and expenses.

 

  14. Administrative Claim ” means a Claim for costs and expenses of administration pursuant to Bankruptcy Code sections 503(b), 507(b), or 1114(e)(2), including, without limitation, (i) the actual and necessary costs and expenses incurred after the Commencement Date of preserving the Estate and operating the Debtor’s business; (ii) all fees and charges assessed against the Estate pursuant to 28 U.S.C. § 1930 and 28 U.S.C. § 3717; and (iii) all requests for compensation or expense reimbursement for making a substantial contribution in the Chapter 11 Case pursuant to Bankruptcy Code sections 503(b)(3)-(5).

 

  15. Affiliate ” means an “affiliate” as such term is defined in Bankruptcy Code section 101(2). For the avoidance of doubt, Affiliate includes AAC.

 

  16. Allowed ” means, with respect to a Claim against the Estate, (i) any Claim, proof of which has been timely Filed by the applicable Claims Bar Date; (ii) any Claim that is listed in the Schedules, as such Schedules may be amended by the Debtor from time to time in accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed or contingent, and with respect to which no contrary Proof of Claim has been timely Filed; (iii) any Claim Allowed pursuant to the Plan or a Final Order of the Bankruptcy Court; provided, however, that with respect to any Claim described in clauses (i) and (ii) above, such Claim shall be considered Allowed only if and to the extent that no objection to the allowance thereof has been interposed within the applicable period fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or by a Final Order of the Bankruptcy Court. Any Claim that has been or is hereafter listed in the Schedules as contingent, unliquidated, or disputed, and for which no Proof of Claim is or has been timely Filed, is not considered Allowed and shall be expunged without further action by the Debtor and without further notice to any party or action, approval, or order of the Bankruptcy Court.

 

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  17. Ambac Consolidated Group ” means the group of Affiliates, of which the Debtor is the common parent, that files a single consolidated U.S. federal income tax return.

 

  18. Ambac Entities ,” as defined in the Stipulation of Settlement, means the Debtor, the Reorganized Debtor, and any and all of their current and former parents, Affiliates, subsidiaries, predecessors, successors, heirs, estates, administrators, and legal Representatives.

 

  19. Amended Plan Settlement ” means the global compromise and settlement of certain disputes among the Debtor, the Committee, AAC, the Segregated Account, the Rehabilitator and OCI, memorialized in that certain Mediation Agreement attached to the Disclosure Statement as Exhibit B (the “Mediation Agreement”), the Amended TSA, the Cost Allocation Agreement, and the Cooperation Agreement Amendment. The Amended Plan Settlement provides as follows:

 

  (i) Except as otherwise approved by the Rehabilitator, the Debtor shall use its best efforts to preserve the use of NOLs for the benefit of the AAC Subgroup as contemplated by the Amended Plan Settlement, including but not limited to refraining from taking any action that would result in, and taking such affirmative steps as are appropriate to avoid, any Deconsolidation Event. In furtherance of the foregoing, the Debtor shall, effective on the Plan Settlement Signing Date, use its best efforts to obtain a Confirmation Order from the Bankruptcy Court which (a) memorializes the parties’ intent to preserve the use of NOLs for the benefit of the AAC Subgroup and the Debtor and the Reorganized Debtor as contemplated by the Amended Plan Settlement, (b) approves the adoption by the Debtor and the Reorganized Debtor of an NOL-preservation plan to remain in effect so long as NOLs remain for the benefit of AAC as contemplated by the Amended Plan Settlement and vests continuing jurisdiction in the Bankruptcy Court to enforce restrictions adopted in connection with such plan, and (c) memorializes the parties’ intent that any subsequent bankruptcy filing by the Reorganized Debtor with the intent of rejecting the Amended Plan Settlement and/or seeking additional value from the AAC Subgroup for its use of the NOLs is a per se bad faith filing;

 

  (ii) the Debtor and AAC shall, and shall cause their affiliates to, enter into the Amended TSA and the Amended TSA shall replace, supersede, and nullify in its entirety the existing TSA; provided once the Amended TSA becomes effective, it shall have effect for all taxable periods beginning on or after January 1, 2011; provided, however, the NOL tolling provisions, which shall have effect as of October 1, 2011 (and the portion of the taxable year beginning on October 1, 2011 and ending on December 31, 2011 shall be considered a separate taxable period for purposes of determining amounts payable pursuant to the Amended TSA). The Amended TSA shall address certain issues including, but not limited to, the following:

 

  (a) Certain NOLs generated by the Ambac Consolidated Group on or prior to, and existing on, September 30, 2011 (the “Determination Date”), not taking into account the consequences of any settlement with respect to the IRS Dispute (“Pre-Determination Date NOLs”), shall be available for use by the AAC Subgroup as set forth in the Amended TSA and as described below.

 

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  (b) Any NOLs generated by the AAC Subgroup determined on a separate company tax basis after the Determination Date (the “Post-Determination Date NOLs”) shall be available for use by the AAC Subgroup at no cost.

 

  (c) The portion of any NOLs generated during the taxable year 2011 shall be allocated to either the Pre-Determination Date NOLs or the Post-Determination Date NOLs on the basis of a deemed closing of the books and records of the AAC Subgroup and members of the Ambac Consolidated Group other than the members included in the AAC Subgroup (the “AFGI Subgroup”), as the case may be, as of the end of the Determination Date. For purposes of determining the amount of any NOLs, AMT NOLs, AMT credits or taxable income pursuant to the Amended Plan Settlement, (I) the AAC Surplus Notes issued in June 2010 will be considered indebtedness issued by AAC for federal income tax purposes, (II) the aggregate issue price, for federal income tax purposes, of the AAC Surplus Notes issued in June 2010 and subject to a call option letter agreement shall be treated as equal to $232 million and (III) the aggregate issue price, for federal income tax purposes, of the remaining AAC Surplus Notes issued in June 2010 shall be treated as equal to $1,060 million.

 

  (d) Unless and until there has been a Deconsolidation Event (as defined below), the amount of Pre-Determination Date NOLs allocated to, and available for use by, the AAC Subgroup to offset income for federal income tax purposes (the “Allocated AAC NOLs”) shall be an amount (such amount being hereinafter referred to as the “Allocated AAC NOL Amount”) equal to the lesser of

 

  (1) $3.65 billion; and

 

  (2)

the total amount of Pre-Determination Date NOLs, MINUS the sum of (I) the amount of cancellation of indebtedness income realized within the meaning of IRC sections 61(a)(12) and 108(a), by the Debtor and any subsidiary not

 

4


  included in the AAC Subgroup in connection with the Plan, (II) the amount of interest expense of the AFGI Subgroup that is disallowed pursuant to IRC section 382(l)(5)(B) upon the consummation of the Plan or otherwise related to the case, and (III) the amount of NOLs reduced pursuant to the settlement of the IRS Dispute.

Pursuant to the Amended TSA, the AAC Subgroup may utilize the Allocated AAC NOL Amount to offset income for federal income tax purposes in exchange for a payment pursuant to the Amended TSA in an amount determined pursuant to the appropriate table contained in the Amended TSA, with the applicable percentage for the particular usage tier shown in such table being multiplied by the aggregate amount of the increase in the AAC Subgroup’s federal income tax liability that would have been owed and payable with respect to such taxable period to the extent that no portion of the (i) (A) Allocated AAC NOL Amount or (B) Post-Deconsolidation Allocated NOL Amount (as defined below), in each case, within the applicable NOL usage tier or (ii) AFGI NOL Amount (as defined below), as the case may be, would have been available in connection with such determination with respect to such taxable period (the “AAC Notional Federal Tax Amount”).

Any amounts due from AAC to the Debtor or the Reorganized Debtor, as applicable, for the use of NOLs pursuant to the Amended TSA shall be paid no later than forty-five (45) days after the due date (excluding extensions) of the consolidated tax return for the taxable period in question; provided that any such amounts due and owing prior to the Plan Settlement Closing Date shall be deposited in an escrow account established under section 6 of the Mediation Agreement, which will be transferred to the Debtor or the Reorganized Debtor, as applicable, on the Plan Settlement Closing Date; provided further, that AAC shall be entitled to offset and retain any portion of any amounts due pursuant to the tolling provisions of the Amended TSA to the extent that Debtor or the Reorganized Debtor have not previously made all payments to AAC required under the Amended TSA. The parties shall cooperate with each other and, upon reasonable request, provide information with respect to the tax matters set forth in the Amended Plan Settlement.

 

  (e)

Beginning on the fifth anniversary of the Plan Settlement Effective Date, prior to the occurrence of a Deconsolidation Event, and subject to the consent of the Debtor or the Reorganized Debtor, as applicable, not to be unreasonably withheld, the AAC Subgroup may utilize NOLs in excess of the sum of (i) the Allocated AAC NOL Amount and (ii) the portion of the Post-Determination Date

 

5


  NOLs that, in each case, has not been previously used to offset income for federal tax purposes (the “AFGI NOLs”) in exchange for a payment pursuant to the Amended TSA in an amount equal to 25% multiplied by the AAC Notional Federal Tax Amount.

 

  (f) Following the occurrence of a Deconsolidation Event, pursuant to the election set forth in clause 6(e)(i) of the Amended TSA, (1) the amount of Pre-Determination Date NOLs allocated to, and owned by, the AAC Subgroup (the “Post-Deconsolidation Allocated NOLs”) shall be an amount (such amount being hereinafter referred to as the “Post-Deconsolidation Allocated NOL Amount”) equal to (I) the Allocated AAC NOL Amount less (II) the AAC Pre-Deconsolidation Utilized NOL Amount (as defined below) and (2) all Post-Determination Date NOLs (to the extent not previously utilized by the AAC Subgroup) shall be allocated to, and owned by, the AAC Subgroup. The Debtor or the Reorganized Debtor, as applicable, in its sole discretion, may allocate incremental NOLs to the AAC Subgroup to increase the Post-Deconsolidation Allocated NOLs. AAC shall compensate the Debtor or the Reorganized Debtor, as applicable, for the use of the Post-Deconsolidation Allocated NOLs to offset income for federal income tax purposes in an amount determined pursuant to the appropriate table contained in the Amended TSA, with the applicable percentage for the particular usage tier shown in such table being multiplied by the AAC Notional Federal Tax Amount.

The “AAC Pre-Deconsolidation Utilized NOL Amount” is the portion of the Allocated AAC NOL Amount that is utilized to offset income for federal income tax purposes as provided in the Amended TSA by AAC following the Determination Date and prior to a Deconsolidation Event.

 

  (g) To the extent that the AAC Subgroup has any available Post Determination Date NOLs solely for purposes of determining the amounts payable under the Amended TSA, such Post-Determination Date NOLs shall be treated as being used prior to utilization of any Allocated AAC NOL Amount, Post-Deconsolidation Allocated NOL Amount or AFGI NOL Amount. It is understood that to the extent that the AAC Subgroup carries back any portion of the Allocated AAC NOL Amount to taxable periods beginning prior to January 1, 2011, solely for purposes of determining the amount of any NOL usage payments due to the Debtor under the Amended TSA, such portion of the Allocated AAC NOL Amount carried back to such prior taxable periods shall be treated as being utilized pursuant to subparagraph 3(c) of the Amended TSA. Any such carryback by the AAC Subgroup shall be deemed to be a carryback of Post-Determination Date NOLs prior to a carryback of any portion of the Allocated AAC NOL Amount.

 

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  (h) Solely for purposes of determining the amounts payable under the Amended TSA, the Debtor or the Reorganized Debtor, as applicable, shall be treated as using the AFGI Allocated NOLs and any NOLs generated by the members of the AFGI Subgroup after the Determination Date (determined on a separate company tax basis without inclusion of the AAC Subgroup) prior to utilization of any Allocated AAC NOLs or Post-Determination Date NOLs. Prior to a Deconsolidation Event, the Debtor and any AFGI Subsidiary shall be able to utilize NOLs of the Group (other than any portion of the Allocated AAC NOL Amount and the Post-Determination Date NOLs, except as provided in subclause 3(c)(vii)(3) of the Amended TSA) in an amount equal to the AFGI NOL Amount, and following a Deconsolidation Event, the Ambac Consolidated Group shall be able to utilize the aggregate amount of the Ambac Consolidated Group’s NOLs, other than the Post¬Deconsolidation Allocated NOL Amount and the Post-Determination Date NOLs, in each case, to the fullest extent permitted by the Code without limitation or any requirement to pay or otherwise compensate AAC or any AAC Subsidiary. If and to the extent that the Debtor or the Reorganized Debtor, as applicable, or any subsidiary thereof other than a member of the AAC Subgroup (an “AFGI Subsidiary”) utilizes (i) any Allocated AAC NOLs or (ii) any Post-Determination Date NOLs, the Debtor or the Reorganized Debtor, as applicable, shall make a payment pursuant to the Amended TSA in an amount equal to 50% of the aggregate amount of the AFGI Subgroup’s federal income tax liability for the taxable year in which the NOLs are used that otherwise would have been paid by the Debtor or the Reorganized Debtor, as applicable, if such NOLs were not available for its use. Any use by the Debtor and the AFGI Subsidiaries of such NOLs shall be deemed to be a use of the Allocated AAC NOL Amount prior to a use of the Post-Determination Date NOLs.

 

  (i)

With respect to any taxable year that includes a Deconsolidation Event, the Debtor or the Reorganized Debtor, as applicable, so long as it is the common parent of the Ambac Consolidated Group, shall, subject to the prior review and approval of the Rehabilitator, make valid and timely elections pursuant to Treasury Regulation Section 1.1502-36 to the extent permitted thereunder such that (1) the NOLs of the AAC Subgroup that exist immediately following a Deconsolidation Event will be an amount equal to the sum of the Post-Determination Date NOLs existing as of the Deconsolidation Event (to the extent not previously utilized by the AAC Subgroup) and the Post-Deconsolidation Allocated NOL Amount, and (2) no

 

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  reduction in the tax basis of any asset of the AAC Subgroup will be required pursuant to Treasury Regulation Section 1.1502- 36(d)(4)(i)(D), and no reduction in the amount of any deferred deduction will be required pursuant to Treasury Regulation Section 1.1502-36(d)(4)(i)(C). With respect to any taxable year that includes any event resulting in the application of Treasury Regulation Section 1.1502-36 to AAC or the AAC Subgroup other than a Deconsolidation Event (an “Adjustment Event”), the Debtor or the Reorganized Debtor, as applicable, so long as it is the common parent of the Ambac Consolidated Group, shall, subject to the prior review and approval of the Rehabilitator, make valid and timely elections pursuant to Treasury Regulation Section 1.1502-36 to the extent permitted thereunder such that (Y) the NOLs of the AAC Subgroup that exist immediately following such Adjustment Event will be an amount equal to the sum of the Post-Determination Date NOLs existing as of the Adjustment Event (to the extent not previously utilized by the AAC Subgroup prior to such Adjustment Event) and the Post-Deconsolidation Allocated NOL Amount determined as if the date of the Adjustment Event were a Deconsolidation Event and (Z) no reduction in the tax basis of any asset of the AAC Subgroup will be required pursuant to Treasury Regulation Section 1.1502-36(d)(4)(i)(D), and no reduction in the amount of any deferred deduction will be required pursuant to Treasury Regulation Section 1.1502-36(d)(4)(i)(C).

 

  (j)

With respect to each taxable year of the Ambac Consolidated Group, if AAC or the Rehabilitator notifies the Debtor or the Reorganized Debtor, as applicable, at least 30 days before the Ambac Consolidated Group tax return is filed, that AAC or the Rehabilitator has reasonably determined that there exists uncertainty as to whether or not a Deconsolidation Event or Adjustment Event has occurred during such taxable year, the Debtor or the Reorganized Debtor, as applicable, so long as it is the common parent of the Ambac Consolidated Group, shall, subject to the prior approval of the Rehabilitator, make such protective elections or take other similar actions so that if such a Deconsolidation Event or Adjustment Event were determined subsequently to have occurred during such taxable year, the results contemplated by clause 6(e)(i) of the Amended TSA (as described above) would be achieved to the maximum extent possible. In addition, if AAC or the Rehabilitator believes that a Deconsolidation Event or Adjustment Event may have occurred in a taxable period for which no election or protective election was made pursuant to Treasury Regulation Section 1.1502-36, and if AAC or the Rehabilitator desires to obtain relief from the IRS (whether under Treasury Regulation Section 301.9100 or otherwise) for the failure to make such an election, the Debtor or

 

8


  the Reorganized Debtor, as applicable, shall reasonably cooperate with AAC and the Rehabilitator in obtaining such relief; provided, however, that (i) any costs incurred in connection with obtaining any such relief shall be borne solely by AAC and (ii) the Debtor or the Reorganized Debtor, as applicable, is permitted to review and comment on any written materials provided to the IRS with respect to such relief and attend any meetings or participate in any other communication with the IRS.

 

  (k) If a Deconsolidation Event occurs on a date other than the last day of a taxable year of the Ambac Consolidated Group, no election under Treasury Regulation Sections 1.1502-76(b)(2)(ii) or (iii) (a so-called “ratable allocation” election) shall be made in connection with determining the allocation of the items of the AAC Subgroup between the portion of such taxable year that ends on the date of the Deconsolidation Event and the remaining portion of such taxable year.

 

  (l) The amount due and payable from AAC to the Debtor or the Reorganized Debtor, as applicable, pursuant to the Amended TSA shall be the SUM of (i) any tax payable pursuant to IRC section 55 or any other similar provision under state or local law ( “AMT”) by the AAC Subgroup (the “AAC AMT”), (ii) any federal income tax owed by the AAC Subgroup as provided in the Amended TSA (the “AAC Federal Tax”) (reduced by any available tax credits previously generated by payment of the AAC AMT, including prior to the Effective Date, and not used in any prior taxable year), (iii) the sum of the amounts due and payable under clauses 3(c)(i) and (ii) of the Amended TSA (the “AAC Federal Tax Usage Amount”), and (iv) the excess of the AAC AMT NOL Usage Amount determined under subclause 3(c)(iii)(3) of the Amended TSA OVER the AAC Federal Tax Usage Amount. For the avoidance of doubt, amounts shall be due and payable from AAC to the Debtor or the Reorganized Debtor, as applicable, pursuant to subparagraph 3(a) and clauses 3(c)(i), (ii), and (iii) of the Amended TSA, irrespective of whether the AAC Federal Tax Usage Amount or the AAC AMT NOL Usage Amount arises prior or subsequent to a Deconsolidation Event.

 

  (m)

Prior to a Deconsolidation Event and subject to clause 3(c)(iii) of the Amended TSA, the AAC Subgroup shall, for purposes of determining the AAC AMT, be permitted to utilize (subject to any restrictions imposed under the IRC or the Treasury Regulations promulgated thereunder) the NOLs of the Group available for use to offset AMT (“AMT NOLs”) in an aggregate amount (the “Allocated AAC AMT NOL Amount”) equal to the lesser of (i) $2.934 billion and (ii) the total amount of Pre-Determination Date

 

9


  AMT NOLs MINUS the Debt Related Income MINUS the amount of AMT NOLs reduced pursuant to the settlement of the IRS Dispute. In addition, any AMT NOL generated by the AAC Subgroup determined on a separate company tax basis after the Determination Date (the “Post-Determination Date AMT NOLs”) shall be available for use by the AAC Subgroup at no cost. Further, it is understood that to the extent that the AAC Subgroup has any available Post-Determination Date AMT NOLs, solely for purposes of determining the amounts payable under the Amended TSA, such Post-Determination Date AMT NOLs shall be treated as being used prior to utilization of any Allocated AAC AMT NOL Amount or any Post-Deconsolidation Allocated AMT NOL Amount.

 

  (n) To the extent permitted under applicable law, upon a Deconsolidation Event the Debtor or the Reorganized Debtor, as applicable, shall allocate to AAC the amount of any unused AMT credits allocable to any AAC AMT not previously utilized by the AAC Subgroup. The “AAC Pre-Deconsolidation Utilized AMT NOL Amount” is the portion of the Allocated AAC AMT NOL Amount utilized to offset income for AMT purposes by the AAC Subgroup following the Determination Date and prior to a Deconsolidation Event (including any AMT NOLs to the extent that they were not subject to the payment requirements of the Amended TSA).

 

  (o) The AAC Subgroup may utilize (i) prior to a Deconsolidation Event, the Allocated AAC AMT NOL Amount or (ii) following a Deconsolidation event, the Post-Deconsolidation Allocated AMT NOL Amount, in each case, to offset income for AMT purposes (the “AAC AMT NOLs”). During any taxable period that the AAC Subgroup offsets income for AMT purposes by utilizing any portion of the Allocated AAC AMT NOL Amount or Post¬Deconsolidation Allocated AMT NOL Amount, as the case may be, AAC shall make payments to the Debtor or the Reorganized Debtor, as applicable, within the time and in the manner prescribed under the Amended TSA in an amount equal to the excess of (Y) the AAC AMT NOL Usage Amount over (Z) the AAC Federal Tax Usage Amount. The AAC AMT NOL Usage Amount shall be equal to the product of (a) the applicable percentages set forth on the appropriate table contained in the Amended TSA, multiplied by (b) (X) the aggregate amount of the AAC Subgroup’s AMT liability for the taxable year that otherwise would have been paid by the AAC Subgroup if such AAC AMT NOLs were not available for its use MINUS (Y) the Annual AMT NOL Usage Credit.

 

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  (p) “Annual AMT NOL Usage Credit” shall generally mean with respect to the taxable period beginning on October 1, 2011, $1 million; during the second (2nd) through seventh (7th) taxable periods following the taxable period beginning on October 1, 2011, the sum of (1) $3 million and (2) the excess of $3 million over the lesser of (Y) the portion of the Annual AMT NOL Usage Credit actually utilized in the immediately prior taxable period and (Z) $3 million; during the eighth (8th) taxable period following the taxable period beginning on October 1, 2011, the sum of (1) $10 million and (2) the excess of $3 million over the lesser of (Y) the portion of the Annual AMT NOL Usage Credit actually utilized in the immediately prior taxable period and (Z) $3 million; and during the ninth (9th) taxable period following the taxable period beginning on October 1, 2011 and any taxable period thereafter, the Annual AMT NOL Usage Credit shall be equal to the sum of (1) $10 million and (2) the excess of $10 million over the lesser of (Y) the portion of the Annual AMT NOL Usage Credit actually utilized in the immediately prior taxable period and (Z) $10 million.

 

  (q) Notwithstanding any other provision of the Amended TSA, (i) any AMT NOL carryover amounts described in the Annual AMT NOL Usage Credit attributable to any specific taxable year may only be carried to the next succeeding taxable year and may not be carried into any other taxable year, (ii) the sum of Annual AMT NOL Usage Credits utilized by the AAC Subgroup shall not exceed in the aggregate $60 million throughout the term of the Amended TSA, and (iii) the Annual AMT NOL Usage Credit shall not be utilized in the event that the Federal Tax Usage Amount exceeds the AAC AMT Usage Amount (as calculated before giving effect to such Annual AMT NOL Usage Credit).

 

  (r) In any taxable year in which any portion (expressed in U.S. Dollars) of any Post-Determination Date NOLs (including any such NOLs comprising all or a portion of the Post-Deconsolidation Allocated NOL Amount) are deemed utilized, an equivalent portion (expressed in U.S. Dollars) of the Allocated NOL Amount (including any such NOLs comprising all or a portion of the Post¬Deconsolidation Allocated NOL Amount), to the extent that the Allocated NOL Amount has not been utilized in a prior taxable year, shall be characterized as arising in the same taxable year that such portion of the Post-Determination Date NOLs arose and such portion of the Allocated NOL Amount shall not expire until the latest taxable year to which such portion of the deemed utilized Post-Determination Date NOLs can be carried forward pursuant to IRC section 172.

 

11


  (s) In any taxable year in which any portion (expressed in U.S. Dollars) of any Post-Determination Date AMT NOLs (including any such NOLS comprising all or a portion of the Post-Deconsolidation Allocated AMT NOL Amount) are deemed utilized, an equivalent portion (expressed in U.S. Dollars) of the Allocated AMT NOL Amount (including any such NOLs comprising all or a portion of the Post-Deconsolidation Allocated AMT NOL Amount), to the extent that the Allocated AMT NOL Amount has not been utilized in a prior taxable year, shall be characterized as arising in the same taxable year that such portion of the Post-Determination Date AMT NOLs arose and such portion of the Allocated AMT NOL Amount shall not expire until the latest taxable year to which such portion of the deemed utilized Post-Determination Date AMT NOLs can be carried forward pursuant to IRC section 172.

 

  (t) The Reorganized Debtor shall implement the directive (Control No. LB&I-04-0712-009), dated July 30, 2012, issued by the Large Business & International Division of the IRS, relating to partial worthlessness deductions for eligible securities reported by insurance companies (the “ Section 166 Directive ”) by causing the Ambac Consolidated Group to (i) file, in accordance with the terms of the Section 166 Directive, a properly completed original (or amended, as the case may be) consolidated federal tax return for the taxable period beginning on January 1 of the taxable year for which the Ambac Consolidated Group first implements the Section 166 Directive, which return shall claim deductions pursuant to the Section 166 Directive in the maximum amount permitted to be claimed for such taxable period under the terms of the Section 166 Directive, and (ii) to file, in accordance with the terms of the Section 166 Directive, a properly completed original (or amended, as the case may be) consolidated federal tax return for each subsequent taxable period, which return shall claim deductions pursuant to the Section 166 Directive in the maximum amount permitted to be claimed for such taxable period under the terms of the Section 166 Directive.

 

  (u) Fifty percent (50%) of the excess (if any) of (i) the Ambac Consolidated Group’s NOLs that are carried forward into the taxable period beginning on January 1, 2013 taking into account the group’s implementation of the Section 166 Directive over (ii) the Ambac Consolidated Group’s NOLs that are carried forward into the taxable period beginning on January 1, 2013 without taking into account the group’s implementation of the Section 166 Directive shall be treated as Post-Determination Date NOLs. No portion of incremental NOLs triggered by implementation of the Section 166 Directive shall be treated as Pre-Determination Date NOLs.

 

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  (v) The foregoing provisions and procedures reflected in I.A.19(ii)(t) and (u) above shall also apply for purposes of determining and allocating AMT NOLs attributable to the Ambac Consolidated Group’s implementation of the Section 166 Directive.

 

  (w) The Reorganized Debtor will implement the Section 166 Directive in an initial taxable year (other than 2009) permitted by the Section 166 Directive that results in the largest increase in the Ambac Consolidated Group’s NOLs;

 

  (iii) the Debtor and AAC shall, and shall cause their affiliates to, enter into the Cost Allocation Agreement, which agreement shall become effective on the Plan Settlement Effective Date. The Cost Allocation Agreement shall provide for the following:

 

  (a) Until (and including) the fifth anniversary of the Plan Settlement Effective Date, AAC shall promptly pay all reasonable operating expenses of the Debtor and the Reorganized Debtor annually in arrears, subject to a $5 million per annum cap. Following the fifth anniversary of the Plan Settlement Effective Date, AAC shall, only with the approval of the Rehabilitator, pay all reasonable operating expenses of the Debtor and the Reorganized Debtor in arrears subject to a $4 million per annum cap. In the event that the Rehabilitator declines to approve AAC’s request to pay reasonable operating expenses of the Debtor and the Reorganized Debtor in any such year, the Debtor and the Reorganized Debtor shall have no further obligations under the Amended Plan Settlement.

 

  (b) The Debtor or the Reorganized Debtor, as applicable, shall prepare in good faith an annual operating expense budget (based on reasonable assumptions) for the forthcoming fiscal year in a form reasonably satisfactory to the Rehabilitator (each, an “Annual Budget”). As soon as available, and in any event within 30 days prior to the commencement of each calendar year, the Debtor or the Reorganized Debtor, as applicable, shall provide each Annual Budget to the Rehabilitator. Within 45 days after each March 31, June 30 and September 30, the Debtor or the Reorganized Debtor, as applicable, shall provide the Rehabilitator with a comparison (in form reasonably satisfactory to the Rehabilitator) of (i) actual expenses incurred through such date, and expenses expected to be incurred from such date until the end of the then-current fiscal year, to (ii) the projected expenses as set forth on the Annual Budget. The Debtor’s and the Reorganized Debtor’s actual operating expenses shall not exceed the amounts set forth in the Annual Budget unless such excess expenses are reasonable.

 

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  (c) AAC’s obligation to reimburse the Debtor’s and the Reorganized Debtor’s operating expenses shall terminate upon the earlier to occur of the following events: (i) a breach by the Debtor of any material term of the Mediation Agreement (including, but not limited to, filing for a new bankruptcy or taking any action which impairs the ability of AAC and/or the Rehabilitator to continue to use NOLs in accordance with the Amended Plan Settlement); and (ii) the imposition, under IRC section 382(a) of an annual “section 382 limitation” (within the meaning of IRC section 382(b)) of $37.5 million or less on the use of NOLs available to the AAC Subgroup under the Amended Plan Settlement. In addition, AAC may elect to terminate its obligation to reimburse the Debtor’s and the Reorganized Debtor’s operating expenses to the extent that none of the NOLs included in the Allocated NOL Amount remains available for use by the AAC Subgroup.

 

  (d) Until AAC’s obligation to reimburse the Debtor’s and the Reorganized Debtor’s operating expenses shall have terminated as provided in section 3(c) of the Mediation Agreement, the Reorganized Debtor shall not make any cash distributions to Holders of New Common Stock if, following such distribution, the Reorganized Debtor would have total unrestricted cash and other liquid assets of less than $5 million.

 

  (iv)

notwithstanding any existing agreement between AAC and the Debtor and subject to the following sentence, effective on the Plan Settlement Signing Date, AAC and the Debtor will share all reasonable litigation fees and expenses incurred by the Debtor on or after the November 1, 2010, in the IRS Dispute, including the IRS Adversary Proceedings and any related proceedings (and any appeals relating to the foregoing), on the basis of 85% to AAC and 15% to the Debtor. Furthermore, AAC agrees to pay the Debtor (a) on the Plan Settlement Signing Date, or as soon as practicable thereafter, an amount equal to 85% of all expenses incurred by the Debtor on or after November 1, 2010, and through the Plan Settlement Signing Date in relation to the IRS Dispute (subject to a $2 million credit for amounts already paid by AAC in connection with the IRS Dispute) and (b) on a monthly basis following the Plan Settlement Signing Date an amount equal to 85% of all reasonable expenses incurred by the Debtor on or after the Plan Settlement Signing Date in relation to the IRS Dispute. The Debtor shall not settle or offer to settle the IRS Dispute, incur any defense costs or otherwise assume any contractual obligation, admit any liability, voluntarily make any payment or otherwise agree to any judgment with respect to the IRS Dispute without the written consent of each of AAC, which shall not be unreasonably withheld, and the Rehabilitator, in its sole

 

14


  and absolute discretion. Each of AAC and the Rehabilitator hereby consents to the defense costs incurred by the Debtor and AAC (i) prior to the Plan Settlement Signing Date with respect to the IRS Dispute, the invoices for which have been provided to AAC and the Rehabilitator, and (ii) in implementing the litigation strategy that the Debtor is currently pursuing in connection with the IRS Dispute. AAC and the Rehabilitator shall be entitled to full cooperation and all information and particulars they or either of them may request from the Debtor in relation to the IRS Dispute and any other issues that AAC may have relative to the IRS, including, without limitation, express authorization to engage with IRS directly on matters arising under the Rehabilitation Plan (including any efforts to obtain a private letter ruling, pre-filing agreement or other form of guidance or clarification);

 

  (v) the Debtor, AAC, the Segregated Account and the Rehabilitator shall enter into the Cooperation Agreement Amendment, which shall become effective on the Plan Settlement Effective Date. The Cooperation Agreement Amendment shall provide for the following:

 

  (a)

Following each taxable year during any part of which AAC is a member of the Ambac Consolidated Group, the Debtor or the Reorganized Debtor, as applicable, shall, no later than April 1st of such subsequent year, provide the Rehabilitator with a summary of the material provisions of its expected tax position and the expected differences between AAC’s statutory financial statements and the expected tax positions of the Debtor or the Reorganized Debtor, as applicable. The Rehabilitator shall notify the Debtor or the Reorganized Debtor, as applicable, and AAC in writing of any concerns of the Rehabilitator with respect to any such expected tax positions no later than May 1 of such year. Promptly thereafter, the Debtor or the Reorganized Debtor, as applicable, and AAC shall meet with the Rehabilitator to resolve in good faith such concerns. In the event that the Rehabilitator is unable to resolve a dispute with the Debtor or the Reorganized Debtor, as applicable, and AAC concerning an expected tax position by July 1 of such year, the parties shall immediately submit such dispute to expedited arbitration before a single arbitrator with the requisite tax expertise, whose decision shall be issued no later than August 31 of such year and shall be final and binding upon the parties. The parties shall agree to such further procedures as are necessary and prudent to permit the arbitrator to issue a decision by August 31 of such year. If the expected tax position relates to the AAC Subgroup, the sole issue before the arbitrator shall be whether the tax position advocated by the Rehabilitator is more likely than not to be upheld by a court of competent jurisdiction in a subsequent challenge to such position by the IRS. If the expected tax position does not relate to the AAC Subgroup, the sole issue before the

 

15


  arbitrator shall be whether the tax position advocated by the Debtor or the Reorganized Debtor, as applicable, is more likely than not to be upheld by a court of competent jurisdiction in a subsequent challenge to such position by the IRS. In the event that the arbitrator rules that the tax position advocated by the Rehabilitator (where the expected tax position relates to the AAC Subgroup) or the tax position advocated by the Debtor or the Reorganized Debtor, as applicable (where the expected tax position does not relate to the AAC Subgroup) is more likely than not to be upheld by a court of competent jurisdiction in a subsequent challenge to such position by the IRS, the Debtor or the Reorganized Debtor, as applicable, shall file its return on the basis of such advocated tax position, which position may be disclosed in such return. In the event that the arbitrator does not rule that the tax position advocated by the Rehabilitator, the Debtor, or the Reorganized Debtor, as the case may be, is more likely than not to be upheld by a court of competent jurisdiction in a subsequent challenge to such position by the IRS, such party shall be precluded from advocating for such tax position in any subsequent year absent any change or changes in facts or circumstances that would support such tax position. The cost of the arbitrator will be split between the Debtor or the Reorganized Debtor, as applicable, and AAC. The Rehabilitator represents that it is not presently aware of any fact, including, without limitation, any plan of rehabilitation for the Segregated Account that is presently being considered, upon which it would seek to change (under section 5.a of the Mediation Agreement) the method of realization or accrual of deductions for interest and original issue discount on the AAC Surplus Notes issued in June 2010, including the application of IRC sections 163(e)(5) and 163(i);

 

  (b) AAC shall

 

  (1) provide the Rehabilitator the opportunity to participate in all meetings with AAC management to discuss loss reserves to be included in any statutory financial report,

 

  (2) provide the Rehabilitator with all reports provided to AAC management (when so provided) concerning the assumptions and vendors utilized or to be utilized in arriving at statutory loss reserves, together with any related reports or materials requested by the Rehabilitator, and

 

  (3)

obtain the approval of the Rehabilitator prior to accepting repayment of any intercompany loan in an amount in excess of $50 million per annum or any modification to or deemed repayment of any intercompany loan in an amount

 

16


  that would result in AAC recognizing income or a reduction in issue price in excess of $50 million per annum. No later than February 1 of each year (or more frequently if requested by AAC), if AAC proposes to make any changes in the assumptions or vendors utilized in determining statutory loss reserves from the prior year’s statutory loss reserves (or, with respect to 2011, the statutory loss reserves for the period from September 30, 2011, to December 31, 2011), which changes would cause the difference (whether positive or negative) between (w) AAC’s statutory reserves determined with such proposed changes and (x) AAC’s statutory reserves determined without such proposed changes to exceed the lesser of (y) $200,000,000 or (z) 10% of AAC’s statutory reserves determined without such proposed changes, AAC shall seek and obtain the approval of its loss reserves from the Rehabilitator, which approval shall not be unreasonably withheld or delayed. In the event that the Rehabilitator disputes AAC’s loss reserves and does not provide such approval, then, unless OCI prescribes an accounting practice requiring AAC to follow the position of the Rehabilitator, the parties shall (i) immediately submit such dispute to expedited arbitration before a single arbitrator with requisite expertise to decide which of the positions most appropriately reflects expected claim payments or (ii) jointly agree to an alternative method of dispute resolution. The decision of an arbitrator shall be final and binding upon the parties, and shall be rendered in such form and substance as shall be necessary to permit AAC to reasonably rely thereon for purposes of filing its statutory financial statements. The parties shall agree to such procedures as are necessary and prudent to permit the arbitrator to issue a decision by no later than ten business days before the date that the annual financial reports are required to be filed (the “Filing Date”). If the differences of the parties are not resolved in a manner described above at least ten business days before the Filing Date, then AAC shall request an extension of the Filing Date from OCI. If OCI agrees to such an extension, it will cooperate with AAC to secure extensions in other jurisdictions as necessary. If such extension (or subsequent extension) is not granted, AAC shall be entitled to file its financial reports on the basis of its own loss reserving positions.

 

17


  (c) Any changes to AAC’s existing “Investment Policy” (dated November 18, 2010) shall be submitted to the Rehabilitator for approval, which approval shall not be unreasonably withheld. The Rehabilitator shall meet with AAC management (including the chief financial officer) semi-annually to discuss the Investment Policy and any changes appropriate thereto. The Rehabilitator may recommend changes to the Investment Policy and AAC shall consider such recommendations in good faith. The Rehabilitator shall also be provided with periodic reports of investment transactions in the ordinary course. Notwithstanding anything to the contrary in the Management Services Agreement or any other agreement, in the event that AAC’s rejection of any proposed changes are not reasonable and fair to the interests of AAC and the Segregated Account, or are not protective or equitable to the interests of AAC and the Segregated Account policyholders generally, the Rehabilitator may direct AAC to transfer investment management functions relating to the investment portfolio to a third party jointly chosen by the Rehabilitator and AAC. With respect to any subsequent transfers to third parties of investment management functions relating to the investment portfolio, such third parties shall be jointly chosen by the Rehabilitator and AAC. If the investment management function is transferred in accordance with the foregoing, the parties shall agree to provisions similar to those contained in section 2.05 of the Cooperation Agreement with respect to such replacement investment manager.

 

  (vi) on the Plan Settlement Effective Date, AAC shall transfer to an escrow account the Cash Grant. On the Plan Settlement Closing Date, the Cash Grant shall be transferred to the Debtor or the Reorganized Debtor, as applicable. The Amended TSA shall provide that in consideration of AAC’s payment of the Cash Grant, to the extent that AAC makes any payments to the Debtor or the Reorganized Debtor, as applicable, for NOL use as set forth in section 2 of the Mediation Agreement and memorialized in the Amended TSA, AAC shall receive a credit against the first $5 million in payments due under each of NOL Usage Tier A, B, and C shown in the table attached to the Mediation Agreement as Appendix A, provided that the sum of the credits for all tiers shall not exceed $15 million;

 

  (vii) effective as of the Plan Settlement Signing Date, the Rehabilitator shall, in conjunction with its petition to the Rehabilitation Court for prompt approval of the transactions contemplated by the Amended Plan Settlement pursuant to section 11 of the Mediation Agreement, seek an order providing that, in the event that any obligations of AAC under the Amended Plan Settlement become subject to the authority of the Rehabilitation Court or any other court of competent jurisdiction overseeing any delinquency proceeding of AAC or any of its assets or liabilities, the obligations of AAC to (a) make payments to the Debtor or the Reorganized Debtor, as applicable, for NOL use pursuant to the Amended TSA, (b) reimburse reasonable operating expenses of the Debtor

 

18


  or the Reorganized Debtor, as applicable, pursuant to the Cost Allocation Agreement (as provided in paragraph 3.c of the Mediation Agreement), (iii) pay the Cash Grant (as provided in section 6 of the Mediation Agreement), (iv) make all payments described in section 2.l of the Mediation Agreement, and (v) make all payments described in section 4 of the Mediation Agreement, in each case, shall be provided administrative-expense status in any such insurer delinquency proceeding. The Junior Surplus Notes to be issued pursuant to section 8 of the Mediation Agreement shall not be provided administrative-expense priority. The priority level of any claim by the Debtor or the Reorganized Debtor, as applicable, for damages arising from AAC’s breach of any other obligation under the Amended Plan Settlement (including such other obligations as memorialized in the Amended TSA, the Cost Allocation Agreement or the Cooperation Agreement) shall be a matter of further proceedings before the Rehabilitation Court, with each party reserving its rights in that regard. The Rehabilitator, OCI and AAC acknowledge that the phrase “the July 18, 1991 Tax Sharing Agreement, as amended” in the amendment to the plan of operation of the Segregated Account (the “Plan of Operation”), as submitted to the Rehabilitation Court on November 8, 2010, does not include the Amended TSA and, that the Amended TSA, once executed, will not be allocated to the Segregated Account by operation of such amendment to the Plan of Operation. Other than the foregoing, nothing in the Amended Plan Settlement shall be interpreted to limit the authority of the Rehabilitator over AAC in the event that AAC becomes subject to a delinquency proceeding under Chapter 645 of the Wisconsin Statutes;

 

  (viii) on the Plan Settlement Closing Date, the Segregated Account shall issue $350 million of Junior Surplus Notes to the Debtor or the Reorganized Debtor, as applicable, the terms of which shall be mutually agreed and no less favorable to the Debtor than those extended to any other recipient of Junior Surplus Notes as a creditor described by subsections (5) or (6) of Section 645.68 of the Wisconsin Statutes;

 

  (ix)

effective as of the Plan Settlement Closing Date, the Debtor and the members of the Committee (the “AFGI Interests”) shall provide an unconditional, full and complete release of OCI, the Rehabilitator, AAC and the Segregated Account, and each of their respective current and former members, shareholders, affiliates, officers, directors, employees and agents (including any attorneys, financial advisors, investment bankers, consultants and other professionals retained by such persons, and any other advisors or experts with whom OCI, the Rehabilitator, AAC or the Segregated Account consults), from any and all claims or causes of action of any nature whatsoever that the AFGI Interests (and/or any person claiming by or through the AFGI Interests) ever had, now has or can, shall or may have, by reason of any matter, cause or thing occurring prior to the Plan Settlement Closing Date, including but not limited to (a) any

 

19


  Avoidance Actions or constructive trust claims the Debtor may have against AAC and (b) any liability to the Debtor pertaining to any possible misallocation of up to $38,485,850 of tax refunds received by AAC in September 2009 and February 2010. Effective as of the Plan Settlement Closing Date, AAC, OCI, the Segregated Account, and the Rehabilitator shall provide an unconditional, full and complete release of the Debtor and the members of the Committee, and each of their current and former members, shareholders, affiliates, officers, directors, employees and agents (including any attorneys, financial advisors, investment bankers, consultants and other professionals retained by such persons, and any other advisors or experts with which it consults), from, without limitation, any and all claims or causes of action of any nature whatsoever that such parties (and/or any person claiming by or through such parties) ever had, now has or can, shall or may have, by reason of any matter, cause or thing occurring prior to the Plan Settlement Closing Date;

 

  (x) upon the reasonable request of the Debtor or the Reorganized Debtor, as applicable, at any time on or after the Plan Settlement Signing Date, AAC commits to undertake commercially reasonable efforts to transfer to the Debtor or the Reorganized Debtor, as applicable, a more than insignificant amount of an active trade or business, subject to (a) OCI’s determination that such a transfer does not violate the law, is reasonable and fair to the interests of AAC and the Segregated Account, and protects and is equitable to the interests of AAC and the Segregated Account policyholders generally, and (b) the receipt by the Debtor or the Reorganized Debtor, as applicable, of a tax opinion stating that it is at least more likely than not that such transfer satisfies the requirements of IRC section 269;

 

  (xi) Promptly following the Plan Settlement Signing Date, the Rehabilitator shall petition the Rehabilitation Court for approval of the transactions contemplated by the Amended Plan Settlement and the Debtor shall petition the Bankruptcy Court for approval of the transactions contemplated by the Amended Plan Settlement. The Debtor and the Rehabilitator shall use their best efforts to ensure that such orders are upheld on any appeal. The Committee shall support the Debtor’s application for Bankruptcy Court approval of the Amended Plan Settlement. The approval from the Bankruptcy Court shall memorialize the parties’ intent to preserve use of NOLs for the benefit of AAC, the Debtor, and the Reorganized Debtor as contemplated by the Amended Plan Settlement. The parties shall use their best efforts to ensure that the order contemplated by subsection (i) of section 11.d of the Mediation Agreement is obtained, and if such an order cannot be obtained, the parties shall use their commercially reasonable efforts to obtain the pre-filing agreement contemplated by subsection (ii) of section 11.d of the Mediation Agreement;

 

20


In the event that a condition to the Plan Settlement Closing Date cannot be satisfied, each of the TSA, the Cooperation Agreement Amendment, and the reimbursement of the Debtor’s and the Reorganized Debtor’s operating expenses set forth in section 3 of the Mediation Agreement shall terminate and be of no further force or effect, the Cash Grant shall be released from escrow to AAC, any other amounts held in escrow pursuant to section 2.d of the Mediation Agreement shall be released to AAC, and the parties to the Plan Settlement shall have no further obligations thereunder;

 

  (xii) upon the reasonable request of AAC at any time on or after the Plan Settlement Closing Date, OCI commits to allow AAC to repurchase Surplus Notes, preferred stock or other securities or other consideration issued pursuant to the Rehabilitation Plan (whether issued by AAC or the Segregated Account) subject to OCI’s determination in its sole and absolute discretion that such repurchases do not violate the law, are reasonable and fair to the interests of AAC and the Segregated Account, and protect and are equitable to the interests of AAC and the Segregated Account policyholders generally;

 

  (xiii) in the event that the Debtor or the Reorganized Debtor, as applicable, believes AAC, OCI or the Rehabilitator to be, or in the event that the Rehabilitator believes the Debtor or the Reorganized Debtor, as applicable, to be, in material breach of, or otherwise not complying with their respective material obligations under, the Amended Plan Settlement, such party shall provide the alleged breaching or non-complying party with a written notice (copied to their last known legal counsel) describing, in reasonable detail, the nature of the alleged breach or non-compliance. Following delivery of such written notice, the parties shall attempt, in good faith, to resolve their dispute. The party served with a notice of breach or non-compliance shall have 30 days to cure the alleged breach or non-compliance. In the event that there is no cure and the parties are unable to resolve their dispute, any party alleging such breach or non¬compliance may, not less than 45 days following delivery of such written notice, seek a judgment from the Rehabilitation Court that the other party has breached this agreement. Solely for purposes of resolving such dispute, the Debtor and the Reorganized Debtor shall consent to the jurisdiction of the Rehabilitation Court. In the event that the Rehabilitation Court enters a Final Order in favor of any party alleging such breach or non-compliance, such party may ask the court to grant such further relief as the court deems appropriate in light of the nature and severity of the breach or non-performance, including specific performance, termination of the parties’ obligations under the Amended Plan Settlement and/or monetary damages;

 

21


  (xiv) the agreements, modifications to agreements and other transactions contemplated by the Amended Plan Settlement, including the Plan, the Amended TSA and the Cost Allocation Agreement, shall be structured, to the extent practicable, to comply with the CDS Settlement Agreement and the Rehabilitation Plan;

 

  (xv) in the event of any conflict or inconsistency between the Mediation Agreement or the Amended Plan Settlement and the provisions of the Amended TSA, the Cooperation Agreement Amendment, or the Cost Allocation Agreement, the provisions of the Amended TSA, the Cooperation Agreement Amendment, or the Cost Allocation Agreement, as applicable, shall govern; and

 

  (xvi) the Mediation Agreement shall be governed by the law of the State of New York.

 

  20. Amended TSA ” means that certain amended and restated tax sharing agreement, and any subsequent amendments and/or modifications thereto, among the Debtor, AAC and certain of their Affiliates, substantially in the form attached hereto as Exhibit A, which shall replace, supersede and nullify in its entirety the TSA.

 

  21. Avoidance Actions ” means any and all avoidance, recovery, subordination, or other actions or remedies that may be brought on behalf of the Debtor or its Estate under the Bankruptcy Code or applicable non-bankruptcy law, including, without limitation, actions or remedies under Bankruptcy Code sections 510, 542, 543, 544, 545, 547, 548, 549, 550, 551, 552, and 553.

 

  22. Bankruptcy Code ” means title 11 of the United States Code.

 

  23. Bankruptcy Court ” means the United States Bankruptcy Court for the Southern District of New York or any other court having jurisdiction over the Chapter 11 Case.

 

  24. Bankruptcy Rules ” means the Federal Rules of Bankruptcy Procedure, as applicable to the Chapter 11 Case, promulgated under 28 U.S.C. § 2075 and the general, local, and chambers rules of the Bankruptcy Court.

 

  25. Bar Date Order ” means the Order Pursuant to Sections 105(a) and 501 of the Bankruptcy Code, Bankruptcy Rules 2002 and 3003, and Local Rule 3003-1 (i) Establishing Deadlines for Filing Proofs of Claim and Requests for Payment and (ii) Approving the Form and Manner of Notice Thereof , entered by the Bankruptcy Court on January 19, 2011 [Docket No. 127], as amended, supplemented, or modified.

 

  26. Beneficial Interest ” means any ownership interest or share in an Entity or Person, including, without limitation, options, warrants, rights, or other securities or agreements to acquire such interest or share in such Entity or Person, whether or not transferrable, preferred, common, or voting and whether or not arising under or in connection with any employment agreement.

 

22


  27. Business Day ” means any day, other than a Saturday, Sunday, or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).

 

  28. Cash ” means legal tender of the United States of America or the equivalent thereof.

 

  29. Cash Grant ” means Cash in the amount of $30 million to be paid by AAC to the Reorganized Debtor on the Effective Date.

 

  30. Cause of Action ” means any Claim, cause of action (including Avoidance Actions), controversy, right of setoff, cross claim, counterclaim, or recoupment and any Claim on contracts or for breaches of duties imposed by law or in equity, demand, right, action, Lien, indemnity, guaranty, suit, obligation, liability, damage, judgment, account, defense, power, privilege, license, and franchise of any kind or character whatsoever, whether known or unknown, fixed or contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising before, on, or after the Commencement Date, in contract or in tort, in law or in equity, or pursuant to any other theory of law.

 

  31. CDS Settlement Agreement ” means the settlement agreement among AAC, Ambac Credit Products, LLC, the Debtor, and certain credit default swap contract counterparties, dated as of June 7, 2010, pursuant to which, in exchange for the termination of certain commuted obligations, AAC paid to such counterparties $2,600,000,000 in Cash and $2,000,000,000 of surplus notes of AAC that have a scheduled maturity of June 7, 2020.

 

  32. Chapter 11 Case ” means the case Filed by the Debtor in the Bankruptcy Court under chapter 11 of the Bankruptcy Code, as referenced by Case No. 10-15973 (SCC).

 

  33. Chief Executive Officer ” means, effective July 7, 2011, Diana Adams, the Debtor’s President and Chief Executive Officer.

 

  34. Claim ” means a “claim” as such term is defined in Bankruptcy Code section 101(5).

 

  35. Claims Bar Date ” means the deadline by which a Proof of Claim must be or must have been Filed, as established by the Bar Date Order or the Plan, or with respect to Proofs of Claim for certain former officers and directors of the Debtor, October 3, 2011, or such date as further extended pursuant to the Order Extending the Deadline For Filing Proofs of Claim For Certain Former Officers And/Or Directors of the Debtor [Docket No. 196].

 

  36. Claims Objection Bar Date ” means the date that is 90 days after the Effective Date, or such later date as may be fixed by order of the Bankruptcy Court.

 

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  37. Claims Register ” means the official register of Claims maintained by Kurtzman Carson Consultants LLC, in its capacity as the Debtor’s notice and claims agent.

 

  38. Class ” means a category of Holders of Claims or Equity Interests established pursuant to Article III of the Plan.

 

  39. Class Period ” means, with respect to the Securities Actions, the period from October 19, 2005 through and including July 18, 2009.

 

  40. Commencement Date ” means November 8, 2010.

 

  41. Committee ” means the statutory committee of creditors in the Chapter 11 Case.

 

  42. Confirmation ” means the entry on the docket of the Chapter 11 Case of the Confirmation Order.

 

  43. Confirmation Date ” means the date upon which the Bankruptcy Court enters on the docket of the Chapter 11 Case the Confirmation Order.

 

  44. Confirmation Hearing ” means the hearing before the Bankruptcy Court pursuant to Bankruptcy Code section 1128 to consider confirmation of the Plan, as the same may be continued from time to time.

 

  45. Confirmation Order ” means the order pursuant to Bankruptcy Code section 1129 of the Bankruptcy Court confirming the Plan, as amended, supplemented, or modified.

 

  46. Consummation ” means the occurrence of the Effective Date.

 

  47. Cooperation Agreement ” means that certain Cooperation Agreement, dated as of March 24, 2010, by and between the Segregated Account and AAC, as amended, supplemented, or modified.

 

  48. Cooperation Agreement Amendment ” means the amendment to the Cooperation Agreement, by and among the Segregated Account, AAC, the Debtor and the Rehabilitator, substantially in the form attached hereto as Exhibit B.

 

  49. Cost Allocation Agreement ” means an agreement among the Debtor, AAC, and their Affiliates other than Ambac Assurance UK Limited, substantially in the form attached hereto as Exhibit C.

 

  50. Cure Claim ” means a Claim based upon a monetary default, if any, by the Debtor on an executory contract or unexpired lease at the time such contract or lease is assumed by the Debtor pursuant to Bankruptcy Code sections 365 or 1123.

 

  51. D&O Insurers ” means the Debtor’s director and officer liability insurance carriers which are or become parties to the Insurer Agreement.

 

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  52. Debtor ” means Ambac Financial Group, Inc.

 

  53. Deconsolidation Event ” means any event that results in neither AAC nor any entity that, pursuant to IRC section 381, succeeds to the tax attributes of AAC described in IRC section 381(b) being characterized as an includible corporation with the affiliated group of corporations of which the Debtor, the Reorganized Debtor, or any successor thereto is the common parent, all within the meaning of IRC section 1504.

 

  54. Depository ” has the meaning set forth in Article VI.E of the Plan.

 

  55. Derivative Actions ” means In re Ambac Financial Group, Inc. Derivative Litigation, No. 08-cv-854-SHS (S.D.N.Y.), In re Ambac Financial Group, Inc. Shareholder Derivative Litigation, C.A. No. 3521-VCL (Del. Ch.), In re Ambac Financial Group, Inc. Shareholder Derivative Litigation, No. 650050/2008E (N.Y. Supp.), and/or any of the individual actions included therein or any of them.

 

  56. Disbursing Agent ” means the Reorganized Debtor or the Entity or Entities chosen by the Reorganized Debtor to make or facilitate distributions pursuant to the Plan.

 

  57. Disclosure Statement ” means the Disclosure Statement for Debtor’s Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code, as amended, supplemented, or modified in accordance with the provisions of the Bankruptcy Code and the Bankruptcy Rules.

 

  58. Disputed Claim ” means any Claim that is not yet Allowed.

 

  59. Disputed Claims Reserve ” means a reserve of Cash and/or New Common Stock, to be created by the Debtor or the Reorganized Debtor, for the payment of Disputed Claims that become Allowed Claims after the Effective Date according to the procedures set forth in Article VII.A.3 of the Plan.

 

  60. Distribution Record Date ” means the date that the Confirmation Order is entered by the Bankruptcy Court and shall be the date for determining which Holders of Allowed Claims are entitled to receive distributions under the Plan, except with respect to Allowed Senior Notes Claims and Allowed Subordinated Notes Claims.

 

  61. District Court ” means the United States District Court for the Southern District of New York or any other court having jurisdiction over the Securities Actions.

 

  62. Effective Date ” means the first Business Day after the Confirmation Date on which no stay of the Confirmation Order is in effect and all of the conditions specified in Article IX.B of the Plan have been satisfied or waived pursuant to Article IX.C of the Plan.

 

  63. Entity ” means an “entity” as such term is defined in Bankruptcy Code section 101(15).

 

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  64. Equity Interest ” means any ownership interest or share in the Debtor, including, without limitation, options, warrants, rights, or other securities or agreements to acquire such interest or share in the Debtor, whether or not transferrable, preferred, common, or voting and whether or not arising under or in connection with any employment agreement.

 

  65. ERISA ” means the Employee Retirement Income Security Act of 1974, as it may subsequently be amended.

 

  66. ERISA Action ” means the action captioned Veera v. Ambac Financial Group, Inc. et al., Case No. 10 CV 4191, in the District Court, asserting violations of ERISA and naming as defendants the Debtor’s Savings Plan administrative committee, Savings Plan investment committee, compensation committee of the Debtor’s Board of Directors, and a number of current and former officers and directors of the Debtor.

 

  67. Estate ” means the estate of the Debtor created on the Commencement Date pursuant to Bankruptcy Code section 541.

 

  68. File ” or “Filed” means file, filed, or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Case.

 

  69. Final Order ” means an order or judgment of the Bankruptcy Court or other court of competent jurisdiction with respect to the relevant subject matter, which has not been reversed, stayed, modified, or amended, and as to which the time to appeal, petition for certiorari, or move for reargument or rehearing has expired and no appeal or petition for certiorari or motion for reargument or rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari or motion for reargument or rehearing that has been or may be Filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought; provided, however, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure or any analogous Bankruptcy Rule may be Filed relating to such order shall not prevent such order from being a Final Order.

 

  70. General Unsecured Claim ” means any Claim against the Debtor that is not an Administrative Claim, a Priority Tax Claim, a Claim for Accrued Professional Compensation, a Claim for Indenture Trustee Fees, a Claim for U.S. Trustee Fees, a Priority Non-Tax Claim, a Secured Claim, a Senior Notes Claim, a Subordinated Notes Claim, a Section 510(b) Claim, an Intercompany Claim, or a Claim included in any other Class under the Plan.

 

  71. General Unsecured Claims Warrant Amount ” means Warrants to acquire such amount of New Common Stock equal to the dilution that would occur to the New Common Stock distributed to Holders of Allowed General Unsecured Claims under the Plan if all of the Warrants issued pursuant to the Plan and the Warrant Agreement are exercised.

 

26


  72. Governmental Unit ” means “governmental unit” as such term is defined in Bankruptcy Code section 101(27).

 

  73. Holder ” means any Entity or Person holding a Claim or Equity Interest.

 

  74. Impaired ” means, with respect to a Class of Claims or Equity Interests, a Class of Claims or Equity Interests that is not Unimpaired.

 

  75. Indenture Trustee Fees ” means the reasonable and documented fees and expenses, including, without limitation, professional fees and expenses, of each Indenture Trustee incurred pursuant to the respective Indentures after the Commencement Date in connection with carrying out its duties as provided for under the applicable Indenture, service on the Committee, and making distributions under the Plan.

 

  76. Indenture Trustees ” means the Senior Notes Indenture Trustee and the Subordinated Notes Indenture Trustee.

 

  77. Indentures ” means the 1991 Indenture, the 2001 Indenture, the 2003 Indenture, the 2008 Indenture, and the Junior Subordinated Indenture.

 

  78. Individual Defendants ” means Michael A. Callen, Jill M. Considine, Robert J. Genader, W. Grant Gregory, Philip B. Lassiter, Sean T. Leonard, Thomas C. Theobald, John W. Uhlein, III, Laura S. Unger, Henry D.G. Wallace, David W. Wallis, Gregg L. Bienstock, Kevin J. Doyle, Philip Duff, Thomas J. Gandolfo, Kathleen McDonough, William T. McKinnon, Douglas C. Renfield-Miller, and Robert G. Shoback.

 

  79. Informal Group ” means that certain ad hoc group of unaffiliated holders of Senior Notes represented by Akin Gump Strauss Hauer & Feld LLP.

 

  80. Informal Group Fees ” means the reasonable and documented fees and expenses, including, without limitation, professional fees and expenses, of the Informal Group incurred after the Commencement Date.

 

  81. Insurer Agreement ” means the agreement contemplated by the Stipulation of Settlement, dated as of May 4, 2011, among the Debtor, the Individual Defendants, and the D&O Insurers.

 

  82. Intercompany Claim ” means any Claim held by any Affiliate against the Debtor.

 

  83. Interim Compensation Order ” means the Order Pursuant to Sections 105(a) and 331 of the Bankruptcy Code, Bankruptcy Rule 2016, and Local Rule 2016-1 Establishing Procedures for Interim Monthly Compensation and Reimbursement of Expenses of Professionals , entered by the Bankruptcy Court on December 21, 2010 [Docket No. 81], as amended, supplemented, or modified.

 

  84. IRC ” means title 26 of the United States Code.

 

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  85. IRS ” means the Department of the Treasury – Internal Revenue Service.

 

  86. IRS Adversary Proceeding ” means the adversary proceeding in the Chapter 11 Case captioned Ambac Financial Group, Inc. and The Official Committee of Unsecured Creditors v. United States of America , Adv. Pro. No. 10-4210 (SCC) and any and all actions or proceedings relating thereto.

 

  87. IRS Claims ” means any and all Proofs of Claim Filed by the IRS in the Chapter 11 Case, including Proof of Claim Nos. 3694 and 3699.

 

  88. IRS Dispute ” means any and all litigation arising from or relating to the IRS Claims or the IRS Adversary Proceeding.

 

  89. IRS Settlement ” means a settlement on terms consistent with, or substantially similar to, the Offer Letter.

 

  90. Junior Subordinated Indenture ” means that certain Junior Subordinated Indenture, dated as of February 12, 2007, between the Debtor and Law Debenture Trust Company of New York, as successor indenture trustee to The Bank of New York Mellon, as supplemented by a First Supplemental Indenture, dated as of February 12, 2007, between the Debtor and Law Debenture Trust Company of New York, as successor indenture trustee to The Bank of New York Mellon.

 

  91. Junior Surplus Notes ” means the 5.1% unsecured notes issued by the Segregated Account in accordance with the Rehabilitation Plan and scheduled to mature on June 7, 2020. For the avoidance of doubt, the terms of the Junior Surplus Notes transferred to the Reorganized Debtor, if any, shall be no less favorable than those extended to any other recipient of such notes.

 

  92. Lien ” means a “lien” as such term is defined in Bankruptcy Code section 101(37).

 

  93. New Board ” means the initial board of directors of the Reorganized Debtor, to be appointed as of the Effective Date.

 

  94. New By-Laws ” means the new by-laws of the Reorganized Debtor, substantially in the form attached hereto as Exhibit D.

 

  95. New Certificate of Incorporation ” means the form of the initial certificate of incorporation of the Reorganized Debtor, substantially in the form attached hereto as Exhibit E.

 

  96. New Common Stock ” means the common stock in the Reorganized Debtor to be authorized, issued, or outstanding on the Effective Date, which collectively shall constitute all equity interests in the Reorganized Debtor.

 

  97. New Organizational Documents ” means the New Certificate of Incorporation and New By-Laws.

 

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  98. NOLs ” means net operating losses as determined for U.S. federal income tax purposes.

 

  99. OCI ” means the Office of the Commissioner of Insurance for the State of Wisconsin in its role as regulator of AAC, and/or the Commissioner of Insurance for the State of Wisconsin in his role as rehabilitator of the Segregated Account, as applicable.

 

  100. Offer Letter ” means the Offer Letter, dated February 24, 2012, sent by the Debtor, the Committee, AAC, the Segregated Account, OCI, and the Rehabilitator to the United States Attorney’s Office for the Southern District of New York, seeking to resolve the IRS Dispute in a manner satisfactory to the Debtor, AAC, OCI, the Rehabilitator, the Committee, and the IRS, which Offer Letter is attached hereto as Exhibit F.

 

  101. OSS Settlement Agreement ” means the Settlement, Discontinuance, and Release Agreement, dated as of March 1, 2011, among One State Street, LLC, the Debtor, AAC, and the Segregated Account, approved by the Bankruptcy Court on March 24, 2011 [Docket No. 223].

 

  102. Person ” means a “person” as such term is defined in Bankruptcy Code section 101(41).

 

  103. Plan Settlement Closing Date” means a date that is no later than ten business days following the date on which each of the following conditions has been satisfied or waived by each of the parties to the Amended Plan Settlement:

 

  (i) entry of a Final Order by the Rehabilitation Court approving the transactions contemplated by the Amended Plan Settlement, such approval to be sought within 30 days of the date of the filing of the Plan;

 

  (ii) entry of a final, non-appealable Confirmation Order, including the transactions contemplated by Amended Plan Settlement;

 

  (iii) resolution of the IRS Dispute, either by settlement as contemplated by section 4 of the Mediation Agreement or by judgment of a court of competent jurisdiction that does not (i) require the AAC Subgroup to make a payment to the IRS of more than $100 million in connection with the IRS’s claim for the recovery of certain federal tax refunds that were received prior to November 7, 2010 by the Debtor, AAC or their affiliates or (ii) reduce the Allocated NOL Amount by more than 10%; and

 

  (iv)

the earliest to occur of the following: (a) the Bankruptcy Court enters a Final Order determining that neither an “ownership change” (within the meaning of section 382 of the IRC) (an “Ownership Change”) with respect to AAC nor a Deconsolidation Event occurred as a result of events identified in Paragraph 1(d) of the Offer Letter, in a form reasonably acceptable to the Rehabilitator with respect to such matters only; or (b) the

 

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  Reorganized Debtor (on behalf of itself, AAC, and the other members of the Ambac Consolidated Group) and the IRS enter into a pre-filing agreement with the IRS, prior to the filing of the Ambac Consolidated Group’s 2011 tax return, by which the IRS agrees that no such Deconsolidation Event or Ownership Change occurred as a result of events identified in Paragraph 1(d) of the Offer Letter; or (c) the Reorganized Debtor (on behalf of itself, AAC, and the other members of the Ambac Consolidated Group) and the IRS enter into a closing agreement, by which the IRS agrees that no such Deconsolidation Event or Ownership Change occurred as a result of events identified in Paragraph 1(d) of the Offer Letter.

 

  104. Plan Settlement Effective Date ” means the later of (i) the Confirmation Date and (ii) the date on which a non-stayed order is entered by the Rehabilitation Court approving the transactions contemplated by the Amended Plan Settlement.

 

  105. Plan Settlement Signing Date ” means the date on which the Mediation Agreement is signed by all parties thereto.

 

  106. Priority Non-Tax Claim ” means a Claim entitled to priority in right of payment pursuant to Bankruptcy Code section 507(a), other than an Administrative Claim, a Claim for Accrued Professional Compensation, or a Priority Tax Claim.

 

  107. Priority Tax Claim ” means a Claim of a Governmental Unit of the kind specified in Bankruptcy Code section 507(a)(8).

 

  108. Pro Rata ” means the proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims in that Class, or the proportion of a particular recovery that a Class is entitled to share with other Classes entitled to the same recovery under the Plan.

 

  109. Professional ” means any Person or Entity retained by order of the Bankruptcy Court in the Chapter 11 Case pursuant to Bankruptcy Code sections 327, 328, 330, or 1103, excluding any ordinary course professionals retained pursuant to a Final Order of the Bankruptcy Court.

 

  110. Proof of Claim ” means a proof of Claim Filed against the Debtor in the Chapter 11 Case.

 

  111. Registered Holder ” means the registered holders of the Senior Notes and the Subordinated Notes issued pursuant to the Indentures.

 

  112. Rehabilitation Court ” means the Circuit Court of Dane County Wisconsin, with respect to the Segregated Account rehabilitation proceeding, Case No. 10-cv-1576.

 

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  113. Rehabilitation Plan ” means the plan of rehabilitation with respect to the Segregated Account, as confirmed by the Rehabilitation Court on January 24, 2011, as it may be amended, modified, or supplemented.

 

  114. Rehabilitator ” means the Commissioner of Insurance for the State of Wisconsin, as rehabilitator of the Segregated Account.

 

  115. Released Parties ” means, collectively, the Debtor, the Reorganized Debtor, AAC, the Segregated Account, OCI, the Rehabilitator, the board of directors and board committees of the Debtor and AAC, all current and former individual directors, officers, or employees of the Debtor and AAC, the Committee and the individual members thereof, the Indenture Trustees, the Informal Group and the individual members thereof, and each of their respective Representatives (each of the foregoing in its individual capacity as such).

 

  116. Reorganized Debtor ” means Ambac Financial Group, Inc., as reorganized under and pursuant to the Plan, or any successor thereto, by merger, consolidation, transfer of substantially all assets, or otherwise, on and after the Effective Date.

 

  117. Representatives ” means, with respect to an Entity, such Entity’s directors, officers, employees, members, attorneys, financial advisors, accountants, agents, and their respective professional firms.

 

  118. Ruling Request Agreement ” means that certain Ruling Request Agreement, by and among the Debtor, the Committee, AAC, the Segregated Account, and the Rehabilitator, a copy of which is attached hereto as Exhibit G.

 

  119. Savings Plan ” means the Ambac Financial Group, Inc. Savings Incentive Plan.

 

  120. Schedule of Assumed Executory Contracts and Unexpired Leases ” means the schedule of certain prepetition executory contracts and unexpired leases to be assumed by the Debtor pursuant to the Plan, as amended, supplemented, or modified at any time before the Effective Date, a copy of which is attached hereto as Exhibit H.

 

  121. Schedules ” means the Debtor’s schedule of assets and liabilities and statement of financial affairs, as amended, supplemented, or modified.

 

  122. Section 510(b) Claim ” means any Claim that is subordinated to General Unsecured Claims, Senior Notes Claims, or Subordinated Notes Claims or subject to such subordination under Bankruptcy Code section 510(b), including Claims arising from the purchase or sale of a security of the Debtor for damages, reimbursement, or contribution.

 

  123. Secured Claim ” means a prepetition Claim that is secured by a Lien, or that has the benefit of rights of setoff under Bankruptcy Code section 553, but only to the extent of the value of the creditor’s interest in the Debtor’s interest in such property, or to the extent of the amount subject to setoff, which value shall be determined by the Bankruptcy Court pursuant to Bankruptcy Code sections 506(a), 553, and/or 1129(b)(2)(A), as applicable.

 

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  124. Securities Actions ” means the consolidated action captioned In re Ambac Financial Group, Inc. Securities Litigation, No. 08-cv-411-NRB (S.D.N.Y.) and the action captioned Tolin v. Ambac Financial Group, Inc., et al., No. 08-cv-11241-CM (S.D.N.Y.).

 

  125. Segregated Account ” means the segregated account of AAC, established pursuant to a plan of operation which sets forth the manner by which AAC shall establish and operate such segregated account in accordance with Wis. Stat. § 611.24(2).

 

  126. Senior Notes ” means the 9-3/8% Debentures Due 2011, the 7-1/2% Debentures Due 2023, the 5.95% Debentures Due 2103, the 5.875% Debentures Due 2103, the 5.95% Debentures Due 2035, and the 9.50% Senior Notes Due 2021.

 

  127. Senior Notes Claim ” means any Claim arising from or relating to the Senior Notes, excluding the fees and expenses of the Senior Notes Indenture Trustee, which fees and expenses shall be paid pursuant to Article II.F of the Plan.

 

  128. Senior Notes Indenture Trustee ” means The Bank of New York Mellon, as indenture trustee or successor indenture trustee under the 1991 Indenture, the 2001 Indenture, the 2003 Indenture, and the 2008 Indenture, together with its respective successors and assigns in such capacity.

 

  129. Settlement Class ” means the settlement class comprising all persons who purchased or otherwise acquired any securities issued by the Debtor, including, without limitation, any Senior Notes, Subordinated Notes, Equity Interests, options thereon, or any STRATS during the Class Period. Excluded from the Settlement Class are defendants in the Securities Actions, members of their immediate families, and their legal representatives, heirs, successors or assigns. Also excluded from the Settlement Class are any persons who exclude themselves by filing a timely and valid request for exclusion in accordance with applicable requirements.

 

  130. Stipulation of Settlement ” means the Stipulation of Settlement with Ambac and the Individual Defendants, as approved by the Bankruptcy Court in the Stipulation of Settlement 9019 Approval Order and preliminarily approved by the District Court in the Securities Actions, and any amendments thereto and agreements entered into in connection therewith or pursuant thereto.

 

  131. Stipulation of Settlement 9019 Approval Order ” means the Amended Order (a) Approving the Settlement Stipulation and the Insurer Agreement and (b) Approving Ambac’s Entry Into the Settlement Stipulation and the Insurer Agreement and Performance of All of Its Obligations Thereunder Pursuant to Section 105(a) of the Bankruptcy Code and Bankruptcy Rule 9019 [Docket No. 558], entered by the Bankruptcy Court on September 13, 2011, as such order may be subsequently amended.

 

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  132. Subordinated Notes ” means those certain 6.15% Directly-Issued Subordinated Capital Securities due February 15, 2087, issued pursuant to the Junior Subordinated Indenture.

 

  133. Subordinated Notes Claim ” means any Claim arising from or relating to the Subordinated Notes, excluding the fees and expenses of the Subordinated Notes Indenture Trustee, which fees and expenses shall be paid pursuant to Article II.F of the Plan.

 

  134. Subordinated Notes Claims Warrant Amount ” means Warrants, which shall be distributed pursuant to the Plan only if the Class of Senior Notes Claims votes to accept the Plan, to acquire 10% of the New Common Stock allocated for distribution pursuant to the Plan with customary anti-dilution provisions and other terms as set forth in the Warrant Agreement.

 

  135. Subordinated Notes Indenture Trustee ” means Law Debenture Trust Company of New York, as successor indenture trustee under the Junior Subordinated Indenture, together with its successors and assigns in such capacity.

 

  136. Surrender Date ” has the meaning set forth in Article VI.E of the Plan.

 

  137. Trading Order ” means the Final Order Pursuant to Sections 105(a), 362, and 541 of the Bankruptcy Code Establishing Procedures for Certain Transfers of Equity Interests in and Claims Against the Debtor, entered by the Bankruptcy Court on November 30, 2010 [Docket No. 40]

 

  138. TSA ” means the Tax Sharing Agreement, entered into as of July 18, 1991, among the Debtor and certain of its Affiliates, as amended by (i) Amendment No. 1, effective as of October 1, 1997, (ii) Amendment No. 2, effective as of November 19, 2009, and (iii) Amendment No. 3, effective as of January 1, 2010, and as further amended, supplemented, or modified.

 

  139. Unimpaired ” means, with respect to a Class of Claims or Equity Interests, a Class of Claims or Equity Interests that is unimpaired within the meaning of Bankruptcy Code section 1124.

 

  140. United States ” means the United States of America, its agencies, departments, and agents.

 

  141. U.S. Trustee ” means the Office of the United States Trustee for the Southern District of New York.

 

  142. U.S. Trustee Fees ” means fees arising under 28 U.S.C. § 1930, and, to the extent applicable, accrued interest thereon arising under 31 U.S.C. § 3717.

 

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  143. Warrant Agreement ” means the agreement, substantially in the form attached hereto as Exhibit I.

 

  144. Warrants ” means warrants, to be distributed, provided that the Class of Senior Notes Claims votes to accept the Plan, to Holders of Allowed General Unsecured Claims and the Holders of Allowed Subordinated Notes Claims pursuant to the terms of the Plan and the Warrant Agreement, and which have an expiration date of the tenth anniversary of the Effective Date, an exercise price based on an implied total equity value for the Reorganized Debtor of $750,000,000 and other terms set forth in the Warrant Agreement.

 

B. Rules of Construction

For the purposes of the Plan: (i) terms and phrases, whether capitalized or not, that are used but not defined in the Plan, but that are defined in the Bankruptcy Code, shall have the meanings ascribed to them in the Bankruptcy Code; (ii) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (iii) any reference in the Plan to an existing document or exhibit having been Filed or to be Filed shall mean that document or exhibit, as it may thereafter be amended, modified, or supplemented; (iv) except as otherwise provided in the Plan, all references in the Plan to “Articles” are references to Articles of the Plan; (v) except as otherwise provided in the Plan, the words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than to a particular portion of the Plan; (vi) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Plan; (vii) the rules of construction set forth in Bankruptcy Code section 102 shall apply; and (viii) any immaterial effectuating provisions may be interpreted by the Reorganized Debtor in a manner that is consistent with the overall purpose and intent of the Plan, all without further order of the Bankruptcy Court.

 

C. Computation of Time

Except as otherwise provided in the Plan, Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed in the Plan.

 

D. Governing Law

Unless a rule of law or procedure is supplied by federal law or unless otherwise specifically stated, the laws of the State of New York, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, and any agreements, securities, instruments, or other documents executed or delivered in connection with the Plan (except as otherwise set forth in those documents, in which case the governing law of such documents shall control); provided, however, that corporate governance matters relating to the Debtor or the Reorganized Debtor, as applicable, shall be governed by the laws of the State of Delaware.

 

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E. Reference to the Debtor or the Reorganized Debtor

Except as otherwise provided in the Plan, references in the Plan to the Debtor or to the Reorganized Debtor shall mean the Debtor and the Reorganized Debtor, as applicable, to the extent that the context requires.

ARTICLE II.

ADMINISTRATIVE CLAIMS, ACCRUED PROFESSIONAL

COMPENSATION CLAIMS, PRIORITY TAX CLAIMS, U.S.

TRUSTEE FEES, AND INDENTURE TRUSTEE FEES

In accordance with Bankruptcy Code section 1123(a)(1), Administrative Claims, Claims for Accrued Professional Compensation, and Priority Tax Claims have not been classified and, therefore, are excluded from the Classes of Claims and Equity Interests set forth in Article III of the Plan and shall have the following treatment:

 

A. Administrative Claims

Except with respect to Administrative Claims that are Claims for Accrued Professional Compensation and except to the extent that a Holder of an Allowed Administrative Claim agrees to less favorable treatment, each Holder of an Allowed Administrative Claim shall be paid in full, in Cash, on the later of (i) the Effective Date or as soon as practicable thereafter; (ii) the first date such Administrative Claim becomes Allowed or as soon as practicable thereafter; and (iii) the date such Allowed Administrative Claim becomes due and payable by its terms or as soon as practicable thereafter.

 

B. Administrative Claims Bar Date

Requests for the payment of Administrative Claims, other than Claims (i) for Accrued Professional Compensation, (ii) for administrative expenses incurred by the Debtor in the ordinary course of business, and (iii) in respect of any obligations pursuant to the Amended Plan Settlement that come into effect before the Effective Date, must be Filed and served on the Reorganized Debtor pursuant to the procedures specified in the Confirmation Order no later than forty-five (45) days after the Effective Date. Holders of Administrative Claims that are required to, but do not, File and serve a request for payment of such Claims by such date shall be forever barred, estopped, and enjoined from asserting such Claims against the Debtor, the Reorganized Debtor, or their assets or properties and such Claims shall be deemed discharged as of the Effective Date. Objections to such requests, if any, must be Filed and served on the Reorganized Debtor and the requesting party no later than ninety (90) days after the Effective Date. Notwithstanding the foregoing, no request for payment of an Administrative Claim need be Filed with respect to an Administrative Claim previously Allowed by Final Order, including all Administrative Claims expressly Allowed under the Plan.

 

C. Accrued Professional Compensation

Professionals asserting a Claim for Accrued Professional Compensation for services rendered before the Effective Date shall (i) File and serve on the Reorganized Debtor and such other Entities who are designated by the Bankruptcy Rules, the Confirmation Order, the Interim Compensation Order, or other order of the Bankruptcy Court a final application for the

 

35


allowance of such Claim for Accrued Professional Compensation no later than sixty (60) days after the Effective Date and; (ii) if granted such an award by the Bankruptcy Court, be paid in full in Cash in such amounts as are Allowed by the Bankruptcy Court on the date such Claim for Accrued Professional Compensation becomes Allowed or as soon as practicable thereafter. Holders of Claims for Accrued Professional Compensation that do not File and serve such application by the required deadline shall be forever barred, estopped, and enjoined from asserting such Claims against the Debtor, the Reorganized Debtor, or their assets or properties, and such Claims shall be deemed discharged as of the Effective Date. Objections to Claims for Accrued Professional Compensation shall be Filed no later than ninety (90) days after the Effective Date.

Following the Confirmation Date and notwithstanding anything to the contrary in the Interim Compensation Order, approximately every 180 days, but no more than every 210 days, each of the Professionals shall File with the Bankruptcy Court and serve an application for interim Bankruptcy Court approval and allowance, pursuant to Bankruptcy Code sections 330 and 331, of the compensation and reimbursement of expenses requested.

If, prior to Consummation of the Plan, it appears that there will be insufficient funds in the Estate to pay Allowed Administrative Claims in accordance with the Plan, the Professionals shall discuss methods of reducing Claims for Accrued Professional Compensation.

 

D. Priority Tax Claims

Except to the extent that a Holder of an Allowed Priority Tax Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed Priority Tax Claim, each Holder of an Allowed Priority Tax Claim due and payable on or before the Effective Date shall receive, at the option of the Debtor, one of the following treatments: (i) Cash, payable by the Debtor on the later of (a) the Effective Date and (b) the date on which such Priority Tax Claim becomes Allowed, or as soon as practicable thereafter, in an amount equal to the amount of such Allowed Priority Tax Claim; or (ii) Cash in an aggregate amount of such Allowed Priority Tax Claim payable in installment payments over a period of time not to exceed five (5) years after the Commencement Date, in accordance with Bankruptcy Code section 1129(a)(9)(C).

 

E. U.S. Trustee Fees

On the Effective Date or as soon as practicable thereafter, the Reorganized Debtor shall pay all U.S. Trustee Fees that are due and owing on the Effective Date. For the avoidance of doubt, nothing in the Plan shall release the Reorganized Debtor from its obligation to pay all U.S. Trustee Fees due and owing after the Effective Date before an order or final decree is entered by the Bankruptcy Court concluding or closing the Chapter 11 Case.

 

F. Indenture Trustee Fees and Informal Group Fees

On the Effective Date, the Reorganized Debtor shall pay in Cash the Indenture Trustee Fees and the Informal Group Fees, without the need for the Indenture Trustees or the Informal Group to file fee applications with the Bankruptcy Court; provided, however, that (i) each Indenture Trustee and the Informal Group shall provide the Debtor and the Committee with the

 

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invoices for which it seeks payment at least ten (10) days prior to the Effective Date; and (ii) the Debtor and the Committee do not object to the reasonableness of the Indenture Trustee Fees or the Informal Group Fees; provided further, however, that notwithstanding the foregoing, the Reorganized Debtor shall not be required to pay any Informal Group Fees unless (x) the Informal Group supports the Plan and (y) members of the Informal Group holding at least sixty-seven percent (67%) of the aggregate holdings of the Informal Group as of July 6, 2011, less any amount sold by members of the Informal Group as a result of any notice issued by the Debtor pursuant to the Trading Order requiring Holders of Claims to “sell down” a portion of their Claim(s) prior to Consummation, vote their Claims to accept the Plan. To the extent that the Debtor or the Committee objects to the reasonableness of any portion of the Indenture Trustee Fees or the Informal Group Fees, the Reorganized Debtor shall not be required to pay such disputed portion until either such objection is resolved or a further order of the Bankruptcy Court is entered providing for payment of such disputed portion. Notwithstanding anything in the Plan to the contrary, each Indenture Trustee’s Lien against distributions or property held or collected by it for fees and expenses and priority rights pursuant to the Indentures shall be discharged solely upon payment of its Indenture Trustee Fees in full on the Effective Date and the termination of such Indenture Trustee’s duties under the applicable Indenture. The Reorganized Debtor shall pay in Cash all reasonable Indenture Trustee Fees invoiced after the Effective Date upon presentation.

ARTICLE III.

CLASSIFICATION AND TREATMENT

OF CLAIMS AND EQUITY INTERESTS

 

A. Summary of Classification of Claims and Equity Interests

All Claims and Equity Interests, except Administrative Claims, Accrued Professional Compensation Claims, Priority Tax Claims, Indenture Trustee Fees, U.S. Trustee Fees and Informal Group Fees, are classified in the Classes set forth in Article III of the Plan. A Claim or Equity Interest is also classified in a particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent that such Claim or Equity Interest is an Allowed Claim or Allowed Equity Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date.

 

Class

  

Claim/Equity Interest

  

Impairment

  

Voting Rights

1    Priority Non-Tax Claims    Unimpaired    Not Entitled to Vote (Conclusively Presumed to Accept)
2    Secured Claims    Unimpaired    Not Entitled to Vote (Conclusively Presumed to Accept)
3    General Unsecured Claims    Impaired    Entitled to Vote
4    Senior Notes Claims    Impaired    Entitled to Vote
5    Subordinated Notes Claims    Impaired    Entitled to Vote
6    Section 510(b) Claims    Impaired    Not Entitled to Vote (Deemed to Reject)
7    Intercompany Claims    Impaired    Not Entitled to Vote (Deemed to Reject)
8    Equity Interests    Impaired    Not Entitled to Vote (Deemed to Reject)

 

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B. Treatment of Claims and Equity Interests

The following summarizes the treatment of each Class:

 

  1. Class 1 – Priority Non-Tax Claims

 

  (i) Classification : Class 1 consists of all Priority Non-Tax Claims.

 

  (ii) Treatment : Except to the extent that a Holder of an Allowed Priority Non-Tax Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed Priority Non-Tax Claim, on the later of (a) the Effective Date and (b) the date on which such Priority Non-Tax Claim becomes Allowed, or as soon as practicable thereafter, each Holder of such Allowed Priority Non-Tax Claim shall be paid in full in Cash.

 

  (iii ) Voting : Class 1 is Unimpaired. Pursuant to Bankruptcy Code section 1126(f), Holders of Allowed Priority Non-Tax Claims are conclusively presumed to accept the Plan.

 

  2. Class 2 – Secured Claims

 

  (i) Classification : Class 2 consists of all Secured Claims.

 

  (ii) Treatment : Except to the extent that a Holder of an Allowed Secured Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed Secured Claim, on the later of (a) the Effective Date and (b) the date on which such Secured Claim becomes Allowed, or as soon as practicable thereafter, each Holder of such Allowed Secured Claim shall receive, in the Reorganized Debtor’s sole discretion, (1) Cash, including the payment of any interest required to be paid pursuant to Bankruptcy Code section 506(b), in the amount equal to such Allowed Secured Claim, (2) the collateral securing such Allowed Secured Claim, or (3) any other treatment such that the Allowed Secured Claim will be Unimpaired; provided, however, that the aggregate amount of Allowed Secured Claims shall not exceed $200,000.00.

 

  (iii) Voting : Class 2 is Unimpaired. Pursuant to Bankruptcy Code section 1126(f), Holders of Allowed Secured Claims are conclusively presumed to accept the Plan.

 

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  3. Class 3 – General Unsecured Claims

 

  (i) Classification : Class 3 consists of all General Unsecured Claims.

 

  (ii) Treatment : Except to the extent that a Holder of an Allowed General Unsecured Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed General Unsecured Claim, on the later of (a) the Effective Date and (b) the date on which such General Unsecured Claim becomes Allowed, or as soon as practicable thereafter, each Holder of such Allowed General Unsecured Claim shall receive (1) its Pro Rata share of the New Common Stock distributed to Holders of Allowed General Unsecured Claims, Senior Notes Claims and Subordinated Notes Claims pursuant to the Plan and (2), provided that the Class of Senior Notes Claims votes to accept the Plan, the Warrants distributed to Holders of Allowed General Unsecured Claims, which shall be, in the aggregate, an amount equal to the General Unsecured Claims Warrant Amount.

 

  (iii) Voting : Class 3 is Impaired. Holders of Allowed General Unsecured Claims are entitled to vote to accept or reject the Plan.

 

  4. Class 4 – Senior Notes Claims

 

  (i) Classification : Class 4 consists of all Senior Notes Claims.

 

  (ii) Allowance of Senior Notes Claims : The Senior Notes Claims shall be allowed in the aggregate amount of $1,246,129,468.66, comprised of (a) $410,115,000.00 in respect of the 5.95% Debentures Due 2035, (b) $176,085,243.06 in respect of the 5.875% Debentures Due 2103, (c) $201,256,111.11 in respect of the 5.95% Debentures Due 2103, (d) $77,921,875.00 in respect of the 7-1/2% Debentures Due 2023, (e) $125,275,545.05 in respect of the 9-3/8% Debentures Due 2011, and (f) $255,475,694.44 in respect of the 9.50% Senior Notes Due 2021. For the avoidance of doubt, the Allowed Senior Notes Claims shall not be subject to any avoidance, reductions, setoff, offset, recharacterization, subordination (equitable or contractual or otherwise), counter-claim, defense, disallowance, impairment, objection or any challenges under applicable law or regulation.

 

  (iii)

Treatment: In full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed Senior Notes Claim, on the Effective Date or as soon as practicable thereafter, each Holder of such Allowed Senior Notes Claim shall receive its Pro Rata share of the New Common Stock distributed to Holders of Allowed General Unsecured Claims, Senior Notes Claims, and Subordinated Notes Claims pursuant to the Plan, subject to the condition set forth below. In addition, the Senior Notes Indenture Trustee shall receive redistributions of New Common Stock and

 

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  Warrants, in an amount equal to the Subordinated Notes Claims Warrant Amount, from the Subordinated Notes Indenture Trustee in accordance with the subordination provisions of the Indentures; provided, however, that, if the Class of Senior Notes Claims votes to accept the Plan, (1) the Senior Notes Indenture Trustee shall transfer to the Subordinated Notes Indenture Trustee the Warrants, in an amount equal to the Subordinated Notes Claims Warrant Amount, to distribute on a Pro Rata basis to Holders of Allowed Subordinated Notes Claims, and (2) if the Class of Subordinated Notes Claims also votes to accept the Plan, prior to distributing any New Common Stock to the Holders of Allowed Senior Notes Claims, the Senior Notes Indenture Trustee shall transfer to the Subordinated Notes Indenture Trustee 1.5% of the New Common Stock that is distributed to creditors pursuant to the Plan, to distribute on a Pro Rata basis to Holders of Allowed Subordinated Notes Claims.

 

  (iv) Voting : Class 4 is Impaired. Holders of Allowed Senior Notes Claims are entitled to vote to accept or reject the Plan.

 

  5. Class 5 – Subordinated Notes Claims

 

  (i) Classification : Class 5 consists of all Subordinated Notes Claims.

 

  (ii) Allowance of Subordinated Notes Claims : The Subordinated Notes Claims shall be allowed in the aggregate amount of $444,182,604.08. For the avoidance of doubt, the Allowed Subordinated Notes Claims shall not be subject to any avoidance, reductions, setoff, offset, recharacterization, subordination (equitable or contractual or otherwise), counter-claim, defense, disallowance, impairment, objection or any challenges under applicable law or regulation.

 

  (iii)

Treatment : In full and final satisfaction, settlement, release, and discharge of and in exchange for each Allowed Subordinated Notes Claim, on the Effective Date or as soon as practicable thereafter, each Holder of such Allowed Subordinated Notes Claim shall receive (a) its Pro Rata share of the New Common Stock distributed to Holders of Allowed General Unsecured Claims, Senior Notes Claims, and Subordinated Notes Claims pursuant to the Plan, and (b), provided that the Class of Senior Notes Claims votes to accept the Plan, the Warrants distributed to Holders of Subordinated Notes Claims, which shall be an amount equal to the Subordinated Notes Claims Warrant Amount; provided, however, that any distribution of New Common Stock and Warrants to Holders of Allowed Subordinated Notes Claims shall be redistributed to the Senior Notes Indenture Trustee for the benefit of Holders of Allowed Senior Notes Claims in accordance with the subordination provisions of the Indentures; provided further, however, that, if the Class of Senior Notes Claims votes to accept the Plan, (1) the Senior Notes Indenture Trustee shall transfer to the Subordinated Notes Indenture Trustee the Warrants, in an amount

 

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  equal to the Subordinated Notes Claims Warrant Amount, to distribute on a Pro Rata basis to Holders of Allowed Subordinated Notes Claims, and (2) if the Class of Subordinated Notes Claims also votes to accept the Plan, prior to distributing any New Common Stock to the Holders of Allowed Senior Notes Claims, the Senior Notes Indenture Trustee shall transfer to the Subordinated Notes Indenture Trustee 1.5% of the New Common Stock that is distributed to creditors pursuant to the Plan, to distribute on a Pro Rata basis to Holders of Allowed Subordinated Notes Claims.

 

  (iv) Voting : Class 5 is Impaired. Holders of Allowed Subordinated Notes Claims are entitled to vote to accept or reject the Plan.

 

  6. Class 6 – Section 510(b) Claims

 

  (i) Classification : Class 6 consists of all Section 510(b) Claims.

 

  (ii) Treatment : On the Effective Date, all Section 510(b) Claims shall be terminated, cancelled, and extinguished and each Holder of an Allowed Section 510(b) Claim shall not be entitled to, and shall not receive or retain, any property or interest in property on account of such Section 510(b) Claim.

 

  (iii) Voting : Class 6 is Impaired. Pursuant to Bankruptcy Code section 1126(g), Holders of Section 510(b) Claims are conclusively presumed to reject the Plan.

 

  7. Class 7 – Intercompany Claims

 

  (i) Classification : Class 7 consists of all Intercompany Claims, except any claims AAC may have under the Amended TSA, the Cost Allocation Agreement, the Cooperation Agreement, the Mediation Agreement, or any other documents entered into in connection with the Amended Plan Settlement.

 

  (ii) Treatment : On the Effective Date, except as otherwise provided in the Plan, all Intercompany Claims shall be terminated, cancelled, and extinguished and each Holder of an Intercompany Claim shall not be entitled to, and shall not receive or retain, any property or interest in property on account of such Intercompany Claim.

 

  (iii) Voting : Class 7 is Impaired. Pursuant to Bankruptcy Code section 1126(g), Holders of Intercompany Claims are conclusively presumed to reject the Plan.

 

  8. Class 8 – Equity Interests

 

  (i) Classification : Class 8 consists of all Equity Interests.

 

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  (ii) Treatment : On the Effective Date, all Equity Interests shall be terminated, cancelled, and extinguished and each Holder of an Equity Interest shall not be entitled to, and shall not receive or retain, any property or interest in property on account of such Equity Interest.

 

  (iii) Voting : Class 8 is Impaired. Pursuant to Bankruptcy Code section 1126(g), Holders of Equity Interests are conclusively presumed to reject the Plan.

 

C. Subordinated Claims

The allowance, classification, and treatment of all Allowed Claims and Equity Interests and the respective distributions and treatments under the Plan take into account the relative priority and rights of the Claims and Equity Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, Bankruptcy Code section 510(b), or otherwise. Pursuant to Bankruptcy Code section 510, the Debtor or the Reorganized Debtor, as applicable, reserves the right to re-classify any Allowed Claim or Equity Interest in accordance with any contractual, legal, or equitable subordination relating thereto.

 

D. Confirmation Pursuant to Bankruptcy Code Section 1129(b)

Because certain Classes are deemed not to have accepted the Plan, the Debtor will request confirmation of the Plan pursuant to Bankruptcy Code section 1129(b). The Debtor reserves the right to alter, amend, modify, revoke or withdraw the Plan or any related documents, in order to satisfy the requirements of Bankruptcy Code section 1129(b), if necessary.

 

E. Elimination of Vacant Classes

Any Class of Claims or Equity Interests that does not have a Holder of an Allowed Claim or Allowed Equity Interest or a Claim or Equity Interest temporarily or finally Allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class.

 

F. Controversy Concerning Impairment

If a controversy arises as to whether any Class of Claims or Equity Interests is Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.

ARTICLE IV.

MEANS FOR IMPLEMENTATION OF THE PLAN

 

A. Sources of Consideration for Plan Distributions

All consideration necessary to make all monetary payments in accordance with the Plan shall be obtained from the Cash of the Debtor or the Reorganized Debtor, as applicable, including the Cash Grant and any payments made pursuant to the Amended TSA or Cost Allocation Agreement.

 

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B. New Organizational Documents

The Debtor’s organizational documents shall be amended as necessary in order to satisfy the provisions of the Plan and the Bankruptcy Code. The New Organizational Documents shall include, among other things, pursuant to Bankruptcy Code section 1123(a)(6), a provision prohibiting the issuance of non-voting equity securities.

 

C. Continued Corporate Existence

In accordance with the laws of the State of Delaware and the New Organizational Documents, after the Effective Date, the Reorganized Debtor shall continue to exist as a separate corporate entity.

 

D. Vesting of Assets in the Reorganized Debtor

Except as otherwise provided in the Plan, on the Effective Date, all property of the Estate and any property acquired by the Debtor pursuant to the Plan shall vest in the Reorganized Debtor, free and clear of all Liens and Claims. On and after the Effective Date, except as otherwise provided in the Plan, the Reorganized Debtor may operate its business and use, acquire, or dispose of property and compromise or settle any Claims without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.

 

E. New Common Stock

Pursuant to the terms set forth in the Plan, on the Effective Date or as soon as reasonably practicable thereafter, the Reorganized Debtor shall issue shares of New Common Stock for distribution to Holders of Allowed Claims as set forth in Article III.B of the Plan. All of the shares of the New Common Stock issued pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable. The Reorganized Debtor will use its commercially reasonable best efforts to list the New Common Stock on a national securities exchange. The issuance and allocation of the New Common Stock shall be structured to ensure that such issuance qualifies as an exchange subject to IRC section 382(l)(5). In addition, the New Common Stock shall be subject to trading restrictions, as necessary, to prevent an “ownership change” within the meaning of IRC section 382, from occurring following the Effective Date.

 

F. Warrants

Pursuant to the terms set forth in the Plan and in the Warrant Agreement, if the Class of Senior Notes votes to accept the Plan, (i) on the Effective Date or as soon as reasonably practicable thereafter, the Reorganized Debtor shall issue the Warrants in the amounts set forth in the Warrant Agreement for distribution to Holders of General Unsecured Claims as set forth in Article III.B of the Plan, and (ii) on the Surrender Date, the Reorganized Debtor shall issue the Warrants in the amounts set forth in the Warrant Agreement for distribution to Holders of Subordinated Notes Claims as set forth in Article III.B of the Plan. The amounts and initial exercise price of the Warrants shall be as set forth in the Warrant Agreement. The Reorganized Debtor shall reserve for issuance the number of shares of New Common Stock sufficient for issuance upon exercise of the Warrants.

 

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G. Section 1145 Exemption

Unless required by provision of applicable law, regulation, order, or rule, as of the Effective Date, the issuance of the New Common Stock and the Warrants in accordance with the Plan shall be authorized under Bankruptcy Code section 1145 without further act or action by any Entity.

 

H. Cancellation of Securities and Indentures

On the Surrender Date, except as otherwise provided in the Plan, all notes, stock, instruments, certificates, indentures, guarantees, and other documents or agreements evidencing the Senior Notes Claims, the Subordinated Notes Claims, and Equity Interests, including, without limitation, the Senior Notes, the Subordinated Notes, and the Indentures, shall be deemed automatically cancelled and shall be of no further force or effect, whether surrendered for cancellation or otherwise, and the obligations of the Debtor or the Reorganized Debtor thereunder or in any way related thereto shall be discharged. Notwithstanding the foregoing, the Senior Notes, the Subordinated Notes, and the Indentures shall continue in effect solely for the purposes of (i) allowing the Indenture Trustees to receive and distribute New Common Stock and the Warrants pursuant to the Plan; (ii) permitting the Indenture Trustees to maintain any Lien or priority rights they may have pursuant to the Indentures against distributions or property held or collected by them for fees and expenses; (iii) permitting, but not requiring, the Indenture Trustees to exercise their rights and obligations relating to the interests of their Holders pursuant to the applicable Indentures; and (iv) permitting the Indenture Trustees to appear in the Chapter 11 Case and to continue to serve on the Committee until the Committee is dissolved pursuant to Article XII.D. of the Plan. The Senior Notes, the Subordinated Notes, and the Indentures shall terminate completely upon completion of the distribution of New Common Stock and the Warrants to the Holders of Senior Notes Claims and Subordinated Notes Claims, as applicable, pursuant to the Plan.

 

I. Amended Plan Settlement

Entry of the Confirmation Order shall, subject to the occurrence of the Effective Date and effective as of the Effective Date, constitute an order of the Bankruptcy Court approving the Amended Plan Settlement, including the Debtor’s entry into the Cost Allocation Agreement, the Cooperation Agreement Amendment and the Amended TSA. Additionally, entry of the Confirmation Order shall, subject to the occurrence of the Effective Date and effective as of the Effective Date, constitute an order of the Bankruptcy Court approving the unconditional, full, and complete mutual releases by and among the Debtor, the Committee, AAC, the Segregated Account, OCI, and the Rehabilitator from any and all Claims and Causes of Action, including Avoidance Actions; provided, however, the Confirmation Order shall not release claims arising under the Amended TSA, the Cost Allocation Agreement, the Cooperation Agreement, the Mediation Agreement or any other documents entered into in connection with the Amended Plan Settlement.

 

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J. IRS Settlement

No provision of the Disclosure Statement, Plan, Confirmation Order, or any other document or agreement (including but not limited to those referenced in Article XII.O of the Plan) shall impair, change, or modify the IRS’s rights in connection with the IRS Dispute and no statements or assertions by the Debtor in the Disclosure Statement, Plan, or any other document or agreement (including but not limited to those referenced in Article XII.O of the Plan) shall be deemed to estop the IRS from asserting any arguments in the IRS Dispute or elsewhere, particularly with respect to the NOLs or tax refunds. Additionally, confirmation of the Plan and entry of the Confirmation Order shall be without prejudice to the IRS in the IRS Dispute or elsewhere. Pending finalization of the IRS Settlement and irrespective of entry of the Confirmation Order, the Debtor shall not Consummate the Plan, make any distributions to Holders of Claims or Equity Interests outside of the ordinary course of business, or File a motion pursuant to Bankruptcy Rule 9019 requesting approval of the IRS Settlement without the United States’s prior written approval.

 

K. Directors and Officers of the Reorganized Debtor

On the Effective Date, the term of the current members of the Debtor’s board of directors shall expire. On and after the Effective Date, the existing officers of the Debtor shall remain in place in their current capacities as officers of the Reorganized Debtor, subject to the ordinary rights and powers of the New Board to remove or replace them. The New Board shall consist of the Reorganized Debtor’s Chief Executive Officer and four (4) additional directors, all of whom shall serve on an interim basis until such time that the Holders of the New Common Stock elect four (4) new directors. The interim directors shall be appointed as follows: one (1) director shall be appointed by the Informal Group and three (3) directors shall be appointed by the Committee. In the event that, after the Confirmation Date but prior to the Effective Date, one of the New Board nominees appointed by the Committee or the Informal Group becomes incapable, unavailable or unable to serve as a director, the Committee shall, as soon as practicable, but in no event more than sixty (60) days after the Effective Date, and in consultation with any then-outstanding New Board nominees or, following the Effective Date, the members of the New Board, and the Committee’s professional advisors, designate a replacement nominee.

 

L. Corporate Action

Except as otherwise provided in the Plan, each of the matters provided for by the Plan involving corporate or related actions to be taken by or required of the Reorganized Debtor shall, as of the Effective Date, be deemed to have occurred and be effective as provided in the Plan, and shall be authorized, approved, and, to the extent taken prior to the Effective Date, ratified in all respects without any requirement of further action by Holders of Claims or Equity Interests, directors of the Debtor, or any other Entity. On or prior to the Effective Date, the appropriate officers of the Debtor or the Reorganized Debtor, as applicable, shall be authorized and directed to issue, execute, and deliver the agreements, securities, instruments, or other documents contemplated by the Plan, or necessary or desirable to effect the transactions contemplated by the Plan, in the name of and on behalf of the Reorganized Debtor, including New Organizational Documents and any and all other agreements, securities, instruments, or other documents relating to such documents. Notwithstanding any requirements under nonbankruptcy law, the authorizations and approvals contemplated by this provision shall be effective.

 

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M. Effectuating Documents; Further Transactions

On and after the Effective Date, the Reorganized Debtor and the officers and members of the New Board are authorized to and may issue, execute, deliver, file, or record such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan and the New Common Stock in the name of and on behalf of the Reorganized Debtor, without the need for any approvals, authorization, or consents, except for those expressly required by the Plan.

 

N. Exemption from Certain Taxes and Fees

Pursuant to Bankruptcy Code section 1146(a), any transfers of property pursuant to the Plan shall not be subject to any stamp, real estate transfer, mortgage reporting, sales, use tax or other similar state or local tax or governmental assessment in the United States, and the Confirmation Order shall direct and be deemed to direct the appropriate state or local governmental officials or agents to forego the collection of any such tax or governmental assessment and to accept for filing and recordation instruments or other documents pursuant to such transfers of property without the payment of any such tax or governmental assessment.

ARTICLE V.

TREATMENT OF EXECUTORY

CONTRACTS AND UNEXPIRED LEASES

 

A. Assumption or Rejection of Executory Contracts and Unexpired Leases

Except as otherwise provided in the Plan, each of the Debtor’s prepetition executory contracts and unexpired Leases shall be deemed rejected as of the Effective Date, unless such executory contract or unexpired lease (i) was assumed or rejected previously by the Debtor; (ii) previously expired or terminated pursuant to its terms; (iii) is the subject of a motion to assume or reject Filed on or before the Effective Date; or (iv) is identified on the Schedule of Assumed Executory Contracts and Unexpired Leases. Entry of the Confirmation Order shall, subject to the occurrence of the Effective Date, constitute the approval by the Bankruptcy Court of the assumptions or rejections of prepetition executory contracts and unexpired leases as set forth in the Plan. Except as otherwise provided in the Plan, all assumptions or rejections of prepetition executory contracts and unexpired leases pursuant to the Plan are effective as of the Effective Date. Notwithstanding anything to the contrary in the Plan, the Debtor reserves the right to amend, modify, or supplement the Schedule of Assumed Executory Contracts and Unexpired Leases at any time before the Effective Date. Nothing in Article V of the Plan is intended to modify the obligations under executory contracts or unexpired leases entered into by the Debtor after the Commencement Date.

 

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B. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases

Any monetary defaults under each executory contract and unexpired lease to be assumed pursuant to the Plan shall be satisfied, pursuant to Bankruptcy Code section 365(b)(1), by payment of the default amount in Cash on the Effective Date or as soon as practicable thereafter, subject to the limitations described below, or on such other terms as the parties to such executory contracts or unexpired leases may otherwise agree. At least twenty-one (21) days before the Confirmation Hearing, the Debtor shall distribute, or cause to be distributed, to the appropriate third parties, notices of proposed assumption of executory contracts and unexpired leases and proposed amounts of Cure Claims, which notices shall be in a format reasonably acceptable to the Committee and shall include procedures for objecting to proposed assumptions of executory contracts and unexpired leases and any amounts of Cure Claims to be paid in connection therewith. Any objection by a counterparty to an executory contract or unexpired lease to a proposed assumption or related cure amount must be Filed, served, and actually received by counsel to the Debtor and the Committee at least seven (7) days before the Confirmation Hearing. Any counterparty to an executory contract or unexpired lease that fails to object timely to the proposed assumption or cure amount will be deemed to have assented to such assumption and cure amount. In the event of a dispute regarding (i) the amount of any payments to cure such a default, (ii) the ability of the Reorganized Debtor or any assignee to provide “adequate assurance of future performance,” within the meaning of Bankruptcy Code section 365, under the executory contract or unexpired lease to be assumed, or (iii) any other matter pertaining to assumption, the cure payments required by Bankruptcy Code section 365(b)(1) shall be made following the entry of a Final Order or orders resolving the dispute and approving the assumption. Assumption of any executory contract or unexpired lease pursuant to the Plan or otherwise shall result in the full release and satisfaction of any Claims or defaults, whether monetary or nonmonetary, arising under any assumed executory contract or unexpired lease at any time before the effective date of the assumption.

 

C. Claims Based on Rejection of Executory Contracts and Unexpired Leases

All Proofs of Claim with respect to Claims arising from the rejection of executory contracts or unexpired leases, including any executory contracts or unexpired leases rejected or deemed rejected under the Plan, must be Filed in accordance with the procedures set forth in the Bar Date Order within thirty (30) days after the date of an order approving such rejection, including the Confirmation Order, is entered. Any Claims arising from the rejection of an executory contract or unexpired lease not Filed within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtor, the Reorganized Debtor, or their assets or properties without the need for any objection by the Reorganized Debtor or further notice to, or action, order, or approval of the Bankruptcy Court. All Allowed Claims arising from the rejection of the Debtor’s executory contracts or unexpired leases shall be classified as General Unsecured Claims and shall be treated in accordance with Article III.B.3 of the Plan. The deadline to object to Claims arising from the rejection of executory contracts or unexpired leases, if any, shall be ninety (90) days following the date on which such Proof of Claim was Filed.

 

D. Nonoccurrence of Effective Date

In the event that the Effective Date does not occur, the Bankruptcy Court shall retain jurisdiction with respect to any consensual request, pursuant to Bankruptcy Code section 365(d)(4), to extend the deadline for assuming or rejecting executory contracts and unexpired leases.

 

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ARTICLE VI.

PROVISIONS GOVERNING DISTRIBUTIONS

 

A. Record Date for Distributions

Except with respect to Allowed Senior Notes Claims and Allowed Subordinated Notes Claims, as of the Distribution Record Date, the transfer registers for each Class of Claims or Equity Interests, as maintained by the Debtor or its agents, shall be deemed closed and there shall be no further changes made to reflect any new record holders of any Claims or Equity Interests. Except with respect to Allowed Senior Notes Claims and Allowed Subordinated Notes Claims, the Debtor shall have no obligation to recognize any transfer of Claims or Equity Interests occurring on or after the Distribution Record Date.

 

B. Timing and Calculation of Amounts to be Distributed

Except as otherwise provided in the Plan, on the Effective Date or as soon as practicable thereafter (or if a Claim is not an Allowed Claim on the Effective Date, on the date that such a Claim becomes an Allowed Claim), each Holder of an Allowed Claim against the Debtor shall receive the full amount of the distributions that the Plan provides for Allowed Claims in the applicable Class; provided, however, that any Holder of Allowed Senior Notes Claims or Allowed Subordinated Notes Claims that does not comply with the Trading Order shall only receive distributions of New Common Stock to the extent set forth in the Trading Order. In the event that any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date. If and to the extent that there are Disputed Claims, distributions on account of any such Disputed Claims shall be made in accordance with the provisions set forth in Article VII of the Plan. Except as otherwise provided in the Plan, Holders of Claims shall not be entitled to interest, dividends, or accruals on the distributions provided for in the Plan, regardless of whether such distributions are delivered on or at any time after the Effective Date.

 

C. Disbursing Agent

On the Effective Date or as soon as practicable thereafter, all distributions under the Plan shall be made by the Reorganized Debtor as Disbursing Agent or such other Entity designated by the Reorganized Debtor as a Disbursing Agent. Except as otherwise ordered by the Bankruptcy Court, a Disbursing Agent shall not be required to give any bond or surety or other security for the performance of its duties.

 

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D. Rights and Powers of Disbursing Agent

 

  1. Powers of the Disbursing Agent

The Disbursing Agent shall be empowered to: (i) effect all actions and execute all agreements, securities, instruments, and other documents necessary to perform its duties under the Plan; (ii) make all distributions contemplated by the Plan; (iii) employ professionals to represent it with respect to its responsibilities; and (iv) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan, or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions of the Plan.

 

  2. Expenses Incurred On or After the Effective Date

Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and expenses incurred by the Disbursing Agent on or after the Effective Date (including taxes) and any reasonable compensation and expense reimbursement claims (including reasonable attorney fees and expenses) made by the Disbursing Agent shall be paid in Cash by the Reorganized Debtor.

 

E. Delivery of Distributions and Undeliverable or Unclaimed Distributions

 

  1. Delivery of Distributions

Except as otherwise provided in the Plan, the Disbursing Agent shall make distributions to Holders of Allowed Claims (except Allowed Senior Notes Claims and Allowed Subordinated Notes Claim as to which distributions shall be treated as set forth in Article VI.E.2 of the Plan) as of the Distribution Record Date at the address for each such Holder as indicated on the Debtor’s books and records as of the date of any such distribution or as set forth in any Proof of Claim Filed by such Holder; provided, however, that the manner of such distributions shall be determined at the discretion of the Disbursing Agent. If a Holder holds more than one Claim in any one Class, all Claims of the Holder will be aggregated into one Claim and one distribution will be made with respect to the aggregated Claim. Distributions to Holders of Senior Notes Claims shall be made to the Senior Notes Indenture Trustee for the benefit of the respective Holders of Senior Notes Claims, and shall be deemed completed when made to the Senior Notes Indenture Trustee. Distributions to Holders of Subordinated Notes Claims shall be made to the Subordinated Notes Indenture Trustee for the benefit of the respective Holders of Subordinated Notes Claims, and shall be deemed completed when made to the Subordinated Notes Indenture Trustee.

 

  2. Surrender of Existing Publicly Traded Securities

On the Effective Date, or as soon as reasonably practicable thereafter, each Indenture Trustee, with the cooperation of the Reorganized Debtor, shall cause The Depository Trust Company or other securities depository (each, a “Depository”) to surrender the debt securities in respect of the Senior and Subordinated Notes to the applicable Indenture Trustee. No distributions under the Plan shall be made for or on behalf of a Registered Holder unless and until (i) such debt securities have been received by the applicable Indenture Trustee or appropriate instructions from the Depository have been received by the applicable Indenture Trustee in accordance with the respective indenture; or (ii) the loss, theft, or destruction of such debt securities has been established to the reasonable satisfaction of the applicable Indenture

 

49


Trustee, which satisfaction may require such Registered Holder to submit a lost instrument affidavit and an indemnity bond holding the Debtor, the Reorganized Debtor and the applicable Indenture Trustee harmless in respect of such debt securities and distributions made in respect thereof. Each Registered Holder shall be deemed to have surrendered such debt securities as of the date it has complied with the foregoing (the “Surrender Date”). On the Surrender Date, Holders of Allowed Senior Notes Claims and Subordinated Notes Claims shall be entitled to receive distributions pursuant to the Plan. Any Registered Holder that fails to surrender such debt securities or, if applicable, satisfactorily explain the loss, theft, or destruction of such debt securities to the respective Indenture Trustee within one (1) year of the Effective Date shall be deemed to have no further Claim against the Debtor, the Reorganized Debtor, or the applicable Indenture Trustee in respect of such Claim and shall not be entitled to receive any distribution under the Plan. All property in respect of such forfeited distributions, including interest thereon, shall be promptly returned to the Reorganized Debtor by the respective Indenture Trustee and any such debt securities shall be cancelled.

 

  3. Minimum; De Minimis Distributions

The Disbursing Agent shall not be required to make partial distributions or payments of fractions of New Common Stock and such fractions shall be deemed to be zero. The total number of authorized shares of New Common Stock to be distributed pursuant to the Plan shall be adjusted, as necessary, to account for the foregoing. No Cash payment of less than $50 shall be made to a Holder of an Allowed Claim on account of such Allowed Claim.

 

  4. Undeliverable Distributions and Unclaimed Property

 

  (i) Failure to Claim Undeliverable Distributions

In the event that any distribution to any Holder is returned as undeliverable, no distribution to such Holder shall be made unless and until the Disbursing Agent has determined the then current address of such Holder, at which time such distribution shall be made to such Holder without interest; provided, however, that such distributions shall be deemed unclaimed property under Bankruptcy Code section 347(b) at the expiration of six (6) months from the Effective Date. After such date, all unclaimed property or interests in property shall revert to the Reorganized Debtor (notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property laws to the contrary), and the Claim of any Holder to such property or interest in property shall be released, settled, compromised, and forever barred.

 

  (ii) Failure to Present Checks

Checks issued by the Disbursing Agent on account of Allowed Claims shall be null and void if not negotiated within ninety (90) days after the issuance of such check. Requests for reissuance of any check shall be made directly to the Disbursing Agent by the Holder of the relevant Allowed Claim with respect to which such check originally was issued. Any Holder of an Allowed Claim holding an un-negotiated check that does not request reissuance of such un¬negotiated check within ninety (90) days after the issuance of such check shall have its Claim for such un-negotiated check discharged and be discharged and forever barred, estopped, and enjoined from asserting any such Claim against the Debtor, the Reorganized Debtor, or their assets and properties.

 

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F. Compliance with Tax Requirements

In connection with the Plan, to the extent applicable, the Disbursing Agent shall comply with all tax withholding and reporting requirements imposed upon it by any Governmental Unit, and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. Notwithstanding the above, each Holder of an Allowed Claim that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any taxes imposed on such holder by any governmental unit, including income, withholding and other tax obligations, on account of such distribution. The Disbursing Agent has the right, but not the obligation, not to make a distribution until such Holder has made arrangements satisfactory to the Disbursing Agent for payment of any such withholding tax obligations and, if the Disbursing Agent fails to withhold with respect to any such Holder’s distribution, and is later held liable for the amount of such withholding, the Holder shall reimburse the Disbursing Agent. Notwithstanding any provision in the Plan to the contrary, the Disbursing Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms it believes are reasonable and appropriate. The Disbursing Agent may require, as a condition to the receipt of a distribution, that the Holder complete the appropriate Form W-8 or Form W-9, as applicable to each Holder. If the Holder fails to comply with such a request within six months, such distribution shall be deemed an unclaimed distribution. Finally, the Disbursing Agent reserves the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, Liens, and encumbrances.

 

G. Allocations

Distributions in respect of Allowed Claims shall be allocated first to the principal amount (as determined for federal income tax purposes) of such Claims, and then, to the extent the consideration exceeds the principal amount of such Claims, to any portion of such Claims for accrued but unpaid interest.

 

H. Setoffs and Recoupment

The Debtor or the Reorganized Debtor may, but shall not be required to, setoff against or recoup from any Claims of any nature whatsoever that the Debtor may have against the claimant, but neither the failure to do so nor the Allowance of any Claim shall constitute a waiver or release by the Debtor or the Reorganized Debtor of any such Claim it may have against the Holder of such Claim.

 

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I. Claims Paid or Payable by Third Parties

 

  1. Claims Paid by Third Parties

The Debtor, on or prior to the Effective Date, or the Reorganized Debtor, after the Effective Date, shall reduce a Claim, and such Claim shall be disallowed without a Claims objection having to be Filed and without any further notice, action, order, or approval of the Bankruptcy Court, to the extent that the Holder of such Claim receives payment on account of such Claim from a party that is not the Debtor or the Reorganized Debtor. To the extent a Holder of a Claim receives a distribution on account of such Claim and receives payment from a party that is not the Debtor or the Reorganized Debtor on account of such Claim, such Holder shall, within two weeks of receipt thereof, repay or return the distribution to the Reorganized Debtor, to the extent the Holder’s total recovery on account of such Claim from the third party and under the Plan exceeds the amount of such Claim.

 

  2. Claims Payable by Third Parties

No distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtor’s insurance policies until the Holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtor’s insurers agrees to satisfy in full a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then immediately upon such insurers’ agreement, such Claim may be expunged without an objection to such Claim having to be Filed and without any further notice to or action, order, or approval of the Bankruptcy Court.

ARTICLE VII.

PROCEDURES FOR RESOLVING CONTINGENT,

UNLIQUIDATED, AND DISPUTED CLAIMS

 

A. Resolution of Disputed Claims

 

  1. Allowance of Claims

On or after the Effective Date, the Reorganized Debtor shall have and shall retain any and all rights and defenses that the Debtor had with respect to any Claim, except with respect to any Claim deemed Allowed as of the Effective Date. Except as otherwise provided in the Plan or in any order entered in the Chapter 11 Case prior to the Effective Date, including, without limitation, the Confirmation Order, no Claim shall become an Allowed Claim unless and until such Claim is deemed Allowed (i) under the Plan or the Bankruptcy Code or (ii) by Final Order of the Bankruptcy Court, including, without limitation, the Confirmation Order.

 

  2. No Distribution Pending Allowance

Except as otherwise provided in the Plan, if any portion of a Claim is a Disputed Claim, no payment or distribution provided under the Plan shall be made on account of such Claim unless and until such Disputed Claim becomes an Allowed Claim. To the extent a Disputed Claim becomes an Allowed Claim, in accordance with the provisions of the Plan, distributions shall be made to the Holder of such Allowed Claim, without interest.

 

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  3. Disputed Claims Reserve

 

  (i) Disputed Claims Reserve

On the Effective Date or as soon as practicable thereafter, the Debtor or the Reorganized Debtor, as applicable, shall deposit into the Disputed Claims Reserve the amount of Cash, New Common Stock and Warrants that would have been distributed to Holders of all Disputed Claims as if such Disputed Claims had been Allowed on the Effective Date, with the amount of such Allowed Claims to be determined, solely for the purpose of establishing reserves and for maximum distribution purposes, to be the lesser of (i) the asserted amount of the Disputed Claim Filed with the Bankruptcy Court, or if no Proof of Claim was Filed, listed by the Debtor in the Schedules, (ii) the amount, if any, estimated by the Bankruptcy Court pursuant to Bankruptcy Code section 502(c), and (iii) the amount otherwise agreed to by the Debtor or the Reorganized Debtor, as applicable, and the Holder of such Disputed Claim for reserve purposes.

 

  (ii) Distribution of Excess Amounts in the Disputed Claims Reserve

When all Disputed Claims are resolved and either become Allowed or are disallowed by Final Order, to the extent Cash, New Common Stock and/or Warrants remain in the Disputed Claims Reserve after all Holders of Disputed Claims that have become Allowed have been paid the full amount they are entitled to pursuant to the treatment set forth for the appropriate Class under the Plan, then such remaining Cash, New Common Stock and/or Warrants shall be cancelled or shall vest in the Reorganized Debtor.

 

  4. Prosecution of Objections to Claims

The Debtor, prior to and on the Effective Date, or the Reorganized Debtor, after the Effective Date, shall have the exclusive authority to File objections to Claims or settle, compromise, withdraw or litigate to judgment objections to any and all Claims, regardless of whether such Claims are in a Class or otherwise. From and after the Effective Date, the Reorganized Debtor may settle or compromise any Disputed Claim without any further notice to or action, order or approval of the Bankruptcy Court. From and after the Effective Date, the Reorganized Debtor shall have the sole authority to administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice, action, order, or approval of the Bankruptcy Court.

 

  5. Claims Estimation

The Debtor, prior to and on the Effective Date, or the Reorganized Debtor, after the Effective Date, may request that the Bankruptcy Court estimate any contingent or unliquidated Claim to the extent permitted by Bankruptcy Code section 502(c) regardless of whether the Debtor or the Reorganized Debtor has previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall have jurisdiction to estimate any Claim at any time during litigation concerning any objection to such Claim, including during the pendency of any appeal relating to any such objection.

 

  6. Expungement or Adjustment of Claims Without Objection

Any Claim that has been paid, satisfied, or superseded may be expunged on the Claims Register by the Debtor or the Reorganized Debtor, as applicable, and any Claim that has been

 

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amended may be adjusted thereon by the Debtor or the Reorganized Debtor, in both cases without a Claims objection having to be Filed and without any further notice to or action, order or approval of the Bankruptcy Court.

 

  7. Deadline to File Claims Objections

Any objections to Claims shall be Filed by no later than the Claims Objection Bar Date.

 

B. Disallowance of Claims

Any Claims held by an Entity from which property is recoverable under Bankruptcy Code sections 542, 543, 550, or 553, or that is a transferee of a transfer avoidable under Bankruptcy Code section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a), shall be deemed disallowed pursuant to Bankruptcy Code section 502(d), and Holders of such Claims may not receive any Distributions on account of such Claims until such time as such Causes of Action against that Entity have been settled or a Final Order with respect thereto has been entered and all sums due, if any, by that Entity have been turned over or paid by such Entity to the Debtor or the Reorganized Debtor.

EXCEPT AS OTHERWISE AGREED BY THE DEBTOR OR THE REORGANIZED DEBTOR, AS APPLICABLE, ANY AND ALL PROOFS OF CLAIM FILED AFTER THE CLAIMS BAR DATE SHALL BE DEEMED DISALLOWED AND EXPUNGED AS OF THE EFFECTIVE DATE WITHOUT ANY FURTHER NOTICE TO OR ACTION, ORDER, OR APPROVAL OF THE BANKRUPTCY COURT, AND HOLDERS OF SUCH CLAIMS MAY NOT RECEIVE ANY DISTRIBUTIONS ON ACCOUNT OF SUCH CLAIMS, UNLESS SUCH LATE PROOF OF CLAIM IS DEEMED TIMELY FILED BY A FINAL ORDER OF THE BANKRUPTCY COURT.

 

C. Amendments to Claims

On or after the Effective Date, a Claim may not be Filed or amended without prior authorization of the Bankruptcy Court or the Reorganized Debtor, and any such new or amended Claim Filed without such prior authorization shall be deemed disallowed in full and expunged without any further action.

ARTICLE VIII.

SETTLEMENT, RELEASE, INJUNCTION,

AND RELATED PROVISIONS

 

A. Discharge of Claims and Termination of Equity Interests

Pursuant to and to the fullest extent permitted by Bankruptcy Code section 1141(d), and except as otherwise provided in the Plan, the distributions, rights, and treatment that are provided in the Plan shall be in full and final satisfaction, settlement, release, and discharge, effective as of the Effective Date, of all Claims, Equity Interests, and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Equity Interests from and after the Commencement Date, whether known or unknown, against, liabilities of, Liens on, obligations

 

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of, rights against, and Equity Interests in the Debtor, the Reorganized Debtor, or their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Plan on account of such Claims or Equity Interests, including demands, liabilities, and Causes of Action that arose before the Effective Date, any contingent or non-contingent liability on account of representations or warranties issued on or before the Effective Date, and all debts of the kind specified in Bankruptcy Code sections 502(g), 502(h), or 502(i), in each case whether or not: (i) a Proof of Claim or Equity Interest based upon such Claim, debt, right, or Equity Interest is Filed or deemed Filed pursuant to Bankruptcy Code section 501; (ii) a Claim or Equity Interest based upon such Claim, debt, right, or Equity Interest is Allowed pursuant to Bankruptcy Code section 502; or (iii) the Holder of such a Claim or Equity Interest has accepted the Plan. Any default by the Debtor with respect to any Claim or Equity Interest that existed immediately before or on account of the Filing of the Chapter 11 Case shall be deemed cured on the Effective Date. The Confirmation Order shall be a judicial determination of the discharge of all Claims against and Equity Interests in the Debtor, subject to the Effective Date occurring.

 

B. Injunction

Except as otherwise provided in the Plan and the Amended Plan Settlement, from and after the Effective Date, all Entities that have held, hold, or may hold Claims against, Claims that may result in reimbursement, contribution, or indemnification by the Debtor on account of such Claims, or Equity Interests in the Debtor or the Estate are permanently enjoined from taking any of the following actions against the Debtor, the Reorganized Debtor, or the Estate: (i) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Equity Interests; (ii) enforcing, attaching, collecting, or recovering by any manner or means any judgment, award, decree, or order against such Entities on account of or in connection with or with respect to any such Claims or Equity Interests; (iii) creating, perfecting, or enforcing any Lien of any kind against such Entities or the property or estates of such Entities on account of or in connection with or with respect to any such Claims or Equity Interests; (iv) asserting any right of setoff, subrogation, or recoupment of any kind against any obligation due from such Entities or against the property of such Entities on account of or in connection with or with respect to any such Claims or Equity Interests, unless such Holder has Filed a motion requesting the right to perform such setoff, subrogation, or recoupment on or before the Confirmation Date, and notwithstanding an indication in a Proof of Claim or otherwise that such Holder asserts, has, or intends to preserve any right of setoff, subrogation, or recoupment pursuant to Bankruptcy Code section 553 or otherwise, provided, however, that nothing herein shall detract from AAC’s ability to exercise its right of offset pursuant to section 7 of the Cost Allocation Agreement without notice or further order of the Bankruptcy Court; and (v) commencing or continuing, in any manner or in any place, any action that does not comply with or is inconsistent with the provisions of the Plan.

 

C. Exculpation

Except as otherwise provided in Article VIII.H of the Plan, none of the Released Parties shall have or incur any liability to any holder of any Claim or Equity Interest for any act or omission in connection with or arising out of the Debtor’s restructuring, including, without limitation, the negotiation and execution of the Plan, the Chapter 11 Case, the Disclosure Statement, the solicitation of votes for and the pursuit of the Plan, the Consummation of the Plan,

 

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the CDS Settlement Agreement, the rehabilitation of the Segregated Account, or the administration of the Plan or the Cash, New Common Stock and Warrants, if issued, to be distributed under the Plan, and further including, without limitation, all documents ancillary thereto, all decisions, actions, inactions and alleged negligence or misconduct relating thereto, and all prepetition activities leading to the promulgation and confirmation of the Plan; provided, however, that the foregoing shall not apply to (i) any act or omission that might form the basis of any claim by any policyholder or securities holder in connection with or arising out of any policy issued by AAC; or (ii) any act which constitutes a bankruptcy crime under title 18 of the United States Code. Nothing in this section shall (a) be construed to exculpate any entity from fraud, gross negligence, willful misconduct, malpractice, criminal conduct, misuse of confidential information that causes damages, or ultra vires acts or (b) limit the liability of the professionals of the Debtor, the Reorganized Debtor, the Committee, and the Indenture Trustees, to their respective clients pursuant to DR 6-102 of the Code of Professional Responsibility. Notwithstanding the foregoing, nothing in Article VIII.C of the Plan or the Plan generally may be construed as waiving immunity, or as subjecting the Rehabilitator or OCI, or the Rehabilitator’s or OCI’s employees or agents, to liability, including contractual liability, for matters that are otherwise subject to immunity from liability, including immunity under Wis. Stat. § 645.08(2).

 

D. General Releases by the Debtor

For good and valuable consideration, including the facilitation of the Debtor’s expeditious reorganization, on and after the Effective Date, the Released Parties shall be released and discharged by the Debtor, the Reorganized Debtor, and the Estate from any and all Claims and Causes of Action of any nature whatsoever, including any derivative Claims asserted by or on behalf of the Debtor, based upon or relating to any act, omission, transaction, event, or other occurrence taking place on or prior to the Effective Date; provided, however, that the foregoing shall not apply to any act which constitutes a bankruptcy crime under title 18 of the United States Code or any claims arising under the Amended TSA, the Cost Allocation Agreement, the Cooperation Agreement, the Mediation Agreement or any other documents entered into in connection with the Amended Plan Settlement; provided further, however, that the Released Parties shall not be released from any Claims arising out of or relating to the Securities Actions, and any releases of the Released Parties granted pursuant to the Stipulation of Settlement shall not become effective, unless and until the Stipulation of Settlement 9019 Approval Order becomes a Final Order and the Stipulation of Settlement becomes effective as set forth in paragraph 35 thereof.

 

E. General Releases by Holders of Claims and Equity Interests

Except as otherwise provided in Article VIII.H of the Plan and to the extent permitted by applicable law, as of the Effective Date, each Entity that has held, holds, or may hold a Claim or an Equity Interest, as applicable, in consideration for the obligations of the Debtor under the Plan, the Plan distributions, and other agreements, securities, instruments, or other documents executed or delivered in connection with the Plan, shall be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged the Released Parties from any and all Claims and Causes of Action of any nature whatsoever, including any derivative Claims asserted by or on behalf of the Debtor, that such entity would have been

 

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legally entitled to assert based upon or relating to any act, omission, transaction, event, or other occurrence taking place on or prior to the Effective Date and based upon or relating to the Debtor, the Estate, the Reorganized Debtor, the Chapter 11 Case, or the preparation, negotiation, or implementation of the Plan or Disclosure Statement; provided, however, that the foregoing shall not apply to (i) any act which constitutes a bankruptcy crime under title 18 of the United States Code, (ii) any claims that policyholders or securities holders may have against AAC or the Segregated Account pursuant to their respective policies or securities, (iii) any obligations of the Reorganized Debtor pursuant to the Plan, and (iv) any claims arising under the Amended TSA, the Cost Allocation Agreement, the Cooperation Agreement, the Mediation Agreement or any other documents entered into in connection with the Amended Plan Settlement; provided further, however, that the Released Parties shall not be released from any Claims arising out of or relating to the Securities Actions, and any releases of the Released Parties granted pursuant to the Stipulation of Settlement shall not become effective, unless and until the Stipulation of Settlement 9019 Approval Order becomes a Final Order and the Stipulation of Settlement becomes effective as set forth in paragraph 35 thereof. Notwithstanding anything to the contrary in the Plan, One State Street, LLC shall continue to be entitled to the benefits set forth in the OSS Settlement Agreement. Neither the Plan nor any contract, instrument, release, agreement, or document executed or delivered in connection therewith, nor the occurrence of the Effective Date, shall release, waive, discharge, contribute, or assign any of the claims or causes of action against the non-debtor defendants in the ERISA Action.

 

F. Releases Required Pursuant to the Stipulation of Settlement

In accordance with the Stipulation of Settlement, the Plan includes the following releases, which shall become effective at the time, and only in the event that, the Stipulation of Settlement becomes effective and the Stipulation of Settlement 9019 Approval Order becomes a Final Order:

 

  1.

To the fullest extent permitted by applicable law, on the Effective Date, all Persons or Entities, including, but not limited, to the Ambac Entities and any shareholder or creditor of any of the Ambac Entities (including any other Person or Entity purportedly acting derivatively on behalf of the Ambac Entities) shall be permanently barred and enjoined from instituting, prosecuting, or continuing to prosecute any and all manner of Claims, actions, Causes of Actions, suits, controversies, agreements, costs, damages, judgments, and demands whatsoever, known or Unknown (as defined in the Stipulation of Settlement), suspected or unsuspected, accrued or unaccrued, arising under the laws, regulations, or common law of the United States of America, any state or political subdivision thereof, or any foreign country or jurisdiction, in law, contract, or in equity, against any or all of the Individual Defendants and any or all of the current or former officers, directors, or employees of any Ambac Entity (i) that were, could have been, might have been, or might be in the future asserted in any of the Securities Actions or any of the Derivative Actions; (ii) in connection with, arising out of, related to, or based upon, in whole or in part, directly or indirectly, any action or omission or failure to act within the Class Period or relevant periods specified in any of the Derivative Actions by any of the Individual Defendants or any of the current or former officers, directors, or employees of any Ambac Entity

 

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  relating to any Ambac Entity or in his or her capacity as an officer, director, or employee of any Ambac Entity; or (iii) that allege, arise out of, or are based upon or attributable to any fact, action, omission, or failure to act that is alleged in any of the Securities Actions or the Derivative Actions or related to any fact, action, omission, or failure to act alleged in the Securities Actions or the Derivative Actions.

 

  2. On the Effective Date, the Reorganized Debtor, on behalf of itself and (to the fullest extent of its power to do so) all Ambac Entities and (to the fullest extent of their power to do so) any shareholder, creditor, or other Person or Entity purporting to sue on behalf of or in the right of any of the Ambac Entities, shall be deemed to fully release any and all manner of Claims, actions, Causes of Action, suits, controversies, agreements, costs, damages, judgments, and demands whatsoever, known or Unknown (as defined in the Stipulation of Settlement), suspected or unsuspected, accrued or unaccrued, arising under the laws, regulations, or common law of the United States of America, any state or political subdivision thereof, or any foreign country or jurisdiction, in law, contract, or in equity, against any or all of the Individual Defendants and any or all of the current or former officers, directors, or employees of any Ambac Entity (i) that were, could have been, might have been, or might be in the future asserted in any of the Securities Actions or any of the Derivative Actions; (ii) in connection with, arising out of, related to, or based upon, in whole or in part, directly or indirectly, any action or omission or failure to act within the Class Period or relevant periods specified in any of the Derivative Actions by any of the Individual Defendants or any of the current or former officers, directors, or employees of any Ambac Entity relating to any Ambac Entity or in his or her capacity as an officer, director, or employee of any Ambac Entity; or (iii) that allege, arise out of, or are based upon or attributable to any fact, action, omission, or failure to act that is alleged in any of the Securities Actions or the Derivative Actions or related to any fact, action, omission, or failure to act alleged in the Securities Actions or the Derivative Actions.

 

  3. The injunctions and releases set forth in Article VIII.F of the Plan and in the Stipulation of Settlement 9019 Approval Order do not release and/or bar the ERISA claims at issue in the ERISA Action, provided that nothing in Article VIII.F of the Plan or in the Stipulation of Settlement or the amendments thereto shall be deemed a waiver by the defendants in the ERISA Action of their rights to maintain that any recovery by the Savings Plan pursuant to the Stipulation of Settlement approved hereby shall offset any recovery by the plaintiffs in the ERISA Action.

 

G. Release of Liens

Except as otherwise provided in the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to the Plan, and, in the case of a Class 2 Secured Claim, satisfaction in full of the portion of such Claim that is Allowed as of the Effective Date, all mortgages, deeds, trusts, Liens, pledges, or other security interests against any property of the

 

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Estate shall be fully released and discharged, and all of the right, title, and interest of any Holder of such mortgages, deeds, trusts, Liens, pledges, or other security interests shall revert to the Reorganized Debtor.

 

H. Limitation on Applicability of Discharge, Release, and Injunction Provisions on the United States

As to the United States, notwithstanding anything contained in the Plan or Confirmation Order to the contrary, nothing in the Plan or Confirmation Order shall discharge, release, impair, or otherwise preclude: (i) any liability of the Debtor or Reorganized Debtor arising on or after the Confirmation Date; (ii) any liability to the United States that is not a Claim; (iii) any valid right of setoff or recoupment of the United States against the Debtor; or (iv) any liability of the Debtor or Reorganized Debtor under any environmental law to any governmental unit, as the owner or operator of property that such entity owns or operates after the Confirmation Date.

As to the United States, nothing in the Plan or Confirmation Order shall limit or expand the scope of discharge, release, or injunction to which the Debtor or Reorganized Debtor is entitled to under the Bankruptcy Code, if any. The Plan and Confirmation Order shall bind the United States only to the extent that the United States is a creditor, as defined in Bankruptcy Code section 101(10). The discharge, release, and injunction provisions contained in the Plan and Confirmation Order are not intended and shall not be construed to bar the United States from, subsequent to entry of the Confirmation Order, pursuing any police or regulatory action. Nothing contained in the Plan or Confirmation Order shall be deemed to determine the tax liability of any Person or Entity, including, but not limited to, the Debtor and Reorganized Debtor, nor shall the Plan or Confirmation Order be deemed to have determined the federal tax treatment of any item, distribution, or Entity, including the federal tax consequences of the Plan, nor shall anything in the Plan or Confirmation Order be deemed to have conferred jurisdiction upon the Bankruptcy Court to make determinations as to federal tax liability and federal tax treatment except as provided under Bankruptcy Code section 505.

Nothing in the Plan or Confirmation Order shall release or exculpate any non-Debtor, including the Released Parties, from any liability to the United States, including but not limited to any liabilities arising under the IRC, the environmental laws, or the criminal laws against the Released Parties, nor shall anything in the Plan or Confirmation Order enjoin the United States from bringing any Claim, Cause of Action, or other proceeding against the Released Parties for any liability whatsoever; provided, however, that the foregoing sentence shall not limit the scope of discharge granted to the Debtor and Reorganized Debtor under Bankruptcy Code sections 524 and 1141.

 

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ARTICLE IX.

CONDITIONS PRECEDENT TO CONFIRMATION

AND CONSUMMATION OF THE PLAN

 

A. Conditions Precedent to Confirmation

It shall be a condition to Confirmation of the Plan that the following conditions shall have been satisfied or waived pursuant to Article IX.C of the Plan: (i) the Bankruptcy Court shall have approved the Disclosure Statement with respect to the Plan; (ii) the Ruling Request Agreement shall have been executed by the parties thereto; and (iii) the proposed Confirmation Order shall be in form and substance reasonably satisfactory to (a) the Debtor and (b) only to the extent such Confirmation Order relates to the Amended Plan Settlement, the Amended TSA, resolution of the IRS Dispute, the Cost Allocation Agreement, the Cooperation Agreement, or the Ruling Request Agreement, AAC.

 

B. Conditions Precedent to Consummation

It shall be a condition to Consummation of the Plan that the following conditions shall have been satisfied or waived pursuant to Article IX.C of the Plan: (i) the Confirmation Order shall have become a Final Order; (ii) the Bankruptcy Court shall have approved any plan supplement filed with respect to the Plan; (iii) the New Organizational Documents shall have been effected; (iv) the Debtor or the Reorganized Debtor, as applicable, shall have executed and delivered all documents necessary to effectuate the issuance of the New Common Stock and, if applicable, Warrants; (v) all authorizations, consents, and regulatory approvals required, if any, in connection with the consummation of the Plan shall have been obtained; (vi) the Stipulation of Settlement shall have become effective; (vii) the terms of the IRS Settlement shall have been approved by OCI, the United States, the Rehabilitation Court, the Committee, and the boards of directors of the Debtor and AAC and all conditions to the effectiveness of the IRS Settlement shall have been satisfied; (viii) the IRS Settlement and all transaction documents relating thereto shall have been executed by the parties thereto; (ix) the Bankruptcy Court shall have entered an order pursuant to Bankruptcy Rule 9019 approving the IRS Settlement; (x) the aggregate face amount of Allowed and Disputed General Unsecured Claims shall be less than $50,000,000.00; (xi) the Rehabilitation Court shall have approved the transactions contemplated by the Mediation Agreement, the Amended TSA, the Cost Allocation Agreement, and the Cooperation Agreement Amendment; (xii) the Cash Grant will have been paid or paid into escrow as set forth in the Mediation Agreement; (xiii) the Amended TSA, the Cooperation Agreement Amendment and the Cost Allocation Agreement shall have been executed; and (xiv) all other actions, documents, certificates, and agreements necessary to implement the Plan shall have been effected or executed and delivered to the required parties and, to the extent required, filed with the applicable Governmental Units in accordance with applicable laws.

 

C. Waiver of Conditions

With the consent of AAC, OCI, the Rehabilitator, and the Committee, and after consultation with the Informal Group, the Debtor shall have the right to waive one or more of the conditions to Confirmation or Consummation of the Plan set forth in Article IX of the Plan at any time without notice, leave, or order of the Bankruptcy Court or any formal action other than proceeding to confirm or consummate the Plan; provided, however, that the Debtor shall not waive the conditions precedent to Consummation set forth in Article IX.B.(vii), (viii), or (ix) of the Plan without the consent of the IRS.

 

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D. Effect of Nonoccurrence of Conditions

If each of the conditions to Confirmation and Consummation, other than the conditions to Consummation set forth in Article IX.B.(vii), (viii), or (ix) of the Plan, has not been satisfied or duly waived on or before the date that is 180 days after the Confirmation Date, the Debtor, with the consent of the Committee, AAC, OCI and the Rehabilitator, which consents shall not be unreasonably withheld, and after consultation with the Informal Group, may move the Bankruptcy Court to vacate the Confirmation Order. If the condition set forth in Article IX.B.(vii) of the Plan has not been met on or before the date that is one (1) year after the Confirmation Date, which date may be extended only upon the consent of the IRS, the Confirmation Order shall be automatically vacated. In addition, the Confirmation Order shall be automatically vacated upon notice to the Bankruptcy Court and to the Debtor by the United States that (i) the IRS Settlement will not be accepted by the United States, (ii) the Offer Letter has been withdrawn prior to its acceptance by the United States, or (iii) either the Rehabilitation Court or the Bankruptcy Court has not approved the IRS Settlement within ninety (90) days following its approval by the United States. If the Confirmation Order is vacated pursuant to this provision, the Plan shall be null and void in all respects and nothing contained in the Plan or the Disclosure Statement shall: (a) constitute a waiver or release of any claims by or Claims against or Equity Interests in the Debtor; (b) prejudice in any manner the rights of the Debtor, any Holders, or any other Entity; or (c) constitute an admission, acknowledgment, offer, or undertaking by the Debtor, any Holders, or any other Entity in any respect. For the avoidance of doubt, if the Confirmation Order is vacated pursuant to this provision, the Confirmation Order shall not in any way affect the IRS Dispute.

ARTICLE X.

MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN

 

A. Modification and Amendments

The Debtor may amend, modify, or supplement the Plan pursuant to Bankruptcy Code section 1127(a) at any time prior to the Confirmation Date; provided that the Debtor obtain the consent, which shall not be unreasonably withheld, of the Committee, AAC, OCI and the Rehabilitator, only to the extent such amendment, modification or supplement relates to the Amended Plan Settlement, the Amended TSA, resolution of the IRS Dispute, the Cost Allocation Agreement, the Cooperation Agreement, or the Ruling Request Agreement. After the Confirmation Date, but prior to Consummation of the Plan, the Debtor may, (i) with the consent, which shall not be unreasonably withheld, of the Committee, AAC, OCI and the Rehabilitator, only to the extent such amendment, modification, or supplement relates to the Amended Plan Settlement, the Amended TSA, resolution of the IRS Dispute, the Cost Allocation Agreement, the Cooperation Agreement, or the Ruling Request Agreement, and (ii) upon consultation with the Informal Group, amend, modify, or supplement the Plan without further order of the Bankruptcy Court to remedy any defect or omission or reconcile any inconsistencies in the Plan or the Confirmation Order.

 

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B. Effect of Confirmation on Modifications

Pursuant to Bankruptcy Code section 1127(a), entry of a Confirmation Order shall mean that all modifications or amendments to the Plan since the solicitation thereof are approved and do not require additional disclosure or re-solicitation under Bankruptcy Rule 3019.

 

C. Revocation or Withdrawal of the Plan

The Debtor reserves the right to revoke or withdraw the Plan prior to the Confirmation Date and to File subsequent chapter 11 plans; provided that the Debtor obtain the consent, which shall not be unreasonably withheld, of the Committee, AAC, OCI and the Rehabilitator, only to the extent such revocation or withdrawal relates to the Amended Plan Settlement, the Amended TSA, resolution of the IRS Dispute, the Cost Allocation Agreement, the Cooperation Agreement, or the Ruling Request Agreement. If the Debtor revokes or withdraws the Plan, or if Confirmation or Consummation does not occur, then: (i) the Plan shall be null and void in all respects; (ii) any settlement or compromise embodied in the Plan, assumption or rejection of executory contracts or unexpired leases effected by the Plan, and any document or agreement executed pursuant to the Plan shall be deemed null and void except as may be set forth in a separate order entered by the Bankruptcy Court; and (iii) nothing contained in the Plan shall constitute a waiver or release of any Claims by or against, or any Equity Interests in, the Debtor or any other Entity, prejudice in any manner the rights of the Debtor or any other Entity, or constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtor or any other Entity.

ARTICLE XI.

RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date and except as otherwise provided by the Mediation Agreement, the Amended TSA, the Cost Allocation Agreement, the Cooperation Agreement Amendment, or the Ruling Request Agreement, the Bankruptcy Court shall, after the Effective Date, retain such jurisdiction over the Chapter 11 Case and all Entities with respect to all matters related to the Chapter 11 Case, the Debtor, and the Plan as legally permissible, including, without limitation, jurisdiction to:

 

  1. allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured, or unsecured status, or amount of any Claim or Equity Interest, including the resolution of any request for payment of any Administrative Claim, including Claims of a Professional for services rendered to the Debtor or any Committee, and the resolution of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims or Equity Interests;

 

  2. decide and resolve all matters related to the granting and denying, in whole or in part, any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or the Plan;

 

  3. decide and resolve all matters related to the reasonableness of the Indenture Trustee Fees and the Informal Group Fees;

 

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  4. resolve any matters related to: (i) the assumption, assumption and assignment, or rejection of any executory contract or unexpired lease to which the Debtor is party or with respect to which the Debtor may be liable, and the hearing, determination, and, if necessary, liquidation of any Claims arising therefrom, including Cure Claims pursuant to Bankruptcy Code section 365; (ii) any potential contractual obligation under any executory contract or unexpired lease that is assumed; and (iii) any dispute regarding whether a contract or lease is or was executory or expired;

 

  5. ensure that distributions to Holders of Allowed Claims and Equity Interests are accomplished pursuant to the provisions of the Plan;

 

  6. adjudicate, decide, or resolve any motions, adversary proceedings, Causes of Action, contested or litigated matters, and any other matters, and grant or deny any applications involving the Debtor that may be pending on the Effective Date;

 

  7. adjudicate, decide, or resolve any and all matters related to Bankruptcy Code sections 1141 and 1145;

 

  8. interpret, implement, or enforce the IRS Settlement or any order pursuant to Bankruptcy Rule 9019 approving the IRS Settlement;

 

  9. enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents, including the Cost Allocation Agreement and the Amended TSA, created in connection with the Plan or the Disclosure Statement;

 

  10. implement, interpret, or enforce any and all matters relating to the Confirmation Order (including the Trading Order and any requirements set forth therein or in any notice disseminated pursuant to such Trading Order);

 

  11. resolve any disputes or controversies arising from or relating to that certain stipulation and agreed order resolving Karthikeyan V. Veera’s objection to confirmation of the Plan, Filed on March 12, 2012;

 

  12. enter and enforce any order pursuant to Bankruptcy Code sections 363, 1123, or 1146(a) for the sale of property;

 

  13. resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Plan or any Entity’s obligations in connection with the Plan;

 

  14. issue injunctions, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Entity with Consummation or enforcement of the Plan;

 

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  15. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, injunctions, and other provisions contained in Article VIII of the Plan and enter such orders as may be necessary or appropriate to implement such releases, injunctions, and other provisions;

 

  16. enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;

 

  17. enter an order or final decree concluding or closing the Chapter 11 Case;

 

  18. adjudicate any and all disputes arising from or relating to distributions under the Plan;

 

  19. consider any modifications of the Plan, to cure any defect or omission, or reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order;

 

  20. determine requests for the payment of Administrative Claims or Claims entitled to priority pursuant to Bankruptcy Code section 507;

 

  21. hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan, or the Confirmation Order, including disputes arising under agreements, securities, instruments, or other documents;

 

  22. hear and determine matters in accordance with Bankruptcy Code sections 346, 505, and 1146;

 

  23. hear and determine all disputes involving the existence, nature, or scope of the Debtor’s discharge, including any dispute relating to any liability arising out of the termination of employment or the termination of any employee or retiree benefit program, regardless of whether such termination occurred prior to or after the Effective Date;

 

  24. enforce all orders previously entered by the Bankruptcy Court; and

 

  25. hear any other matter not inconsistent with the Bankruptcy Code.

ARTICLE XII.

MISCELLANEOUS PROVISIONS

 

A. Immediate Binding Effect

Subject to Article IX.B of the Plan and notwithstanding Bankruptcy Rules 3020(e), 6004(g), 7062, or otherwise, upon the occurrence of the Effective Date, the terms of the Plan shall be immediately effective and enforceable and deemed binding upon the Debtor, the Reorganized Debtor, and any and all Holders of Claims or Equity Interests (irrespective of

 

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whether such Claims or Equity Interests are deemed to have accepted the Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Plan, each Entity acquiring property under the Plan, and any and all non-Debtor parties to executory contracts and unexpired leases with the Debtor.

 

B. Additional Documents

On or before the Effective Date, the Debtor may File with the Bankruptcy Court any and all agreements and other documents that may be necessary or appropriate in order to effectuate and further evidence the terms and conditions of the Plan.

 

C. Payment of Statutory Fees

All fees payable pursuant to 28 U.S.C. § 1930 and, if applicable, 28 U.S.C. § 3717, as determined by the Bankruptcy Court at a hearing pursuant to Bankruptcy Code section 1128, shall be paid for each quarter (including any fraction thereof) until the Chapter 11 Case is converted, dismissed, or closed, whichever occurs first.

 

D. Dissolution of Committee

On the later of (i) the Effective Date, or (ii) the date on which the New Common Stock and Warrants, as applicable, have been delivered to the Holders of Allowed General Unsecured Claims, Senior Notes Claims, and Subordinated Notes Claims pursuant to the Plan, the Committee shall dissolve automatically, whereupon its members, Professionals, and agents shall be released from any further authority, duties, obligations and responsibilities in the Chapter 11 Case and under the Bankruptcy Code; provided, however, that, for sixty (60) days following the Effective Date, the Committee shall continue to exist for the sole purpose of appointing a replacement nominee in accordance with Article IV.K. herein. The Committee shall be dissolved by the earlier of (a) sixty (60) days following the Effective Date, or (b) the date on which the Committee notifies the Debtor of its appointment of a replacement New Board nominee. Additionally, following the Effective Date, the Committee shall (a) continue to have standing and a right to be heard with respect to (1) Claims and/or applications for compensation by Professionals and requests for allowance of Administrative Expenses, including, but not limited to, filing applications for Accrued Professional Compensation in accordance with Article II.C of the Plan and (2) any appeals of the Confirmation Order that remain pending as of the Effective Date, and (b) continue to respond to creditor inquiries for one hundred twenty (120) days following the Effective Date.

 

E. Reservation of Rights

Except as otherwise provided in the Plan, the Plan shall have no force or effect unless the Bankruptcy Court enters the Confirmation Order. None of the Filing of the Plan, any statement or provision contained in the Plan, or the taking of any action by the Debtor with respect to the Plan or the Disclosure Statement shall be or shall be deemed to be an admission or waiver of any rights of the Debtor with respect to the Holders of Claims or Equity Interests prior to the Effective Date.

 

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F. Successors and Assigns

The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, Affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.

 

G. Service of Documents

All notices, requests and demands to or upon the Debtor to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:

Ambac Financial Group, Inc.

One State Street Plaza

Attn: General Counsel

New York, NY 10004

and

Hogan Lovells US LLP

Counsel for the Debtor

875 Third Avenue

Attn: Peter A. Ivanick, Esq., and Allison H. Weiss, Esq.

New York, NY 10022

With copies to:

Morrison & Foerster LLP

Counsel for the Committee

1290 Avenue of the Americas

Attn: Anthony Princi, Esq.

New York, NY 10104

After the Effective Date, the Reorganized Debtor has authority to send a notice to Entities that in order to continue to receive documents pursuant to Bankruptcy Rule 2002, they must File a renewed request to receive documents with the Bankruptcy Court. After the Effective Date, the Debtor is authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have Filed such renewed requests.

 

H. Further Assurances

The Debtor or the Reorganized Debtor, as applicable, all Holders of Claims receiving distributions pursuant to the Plan, and all other Entities shall, from time to time, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan or the Confirmation Order.

 

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I. Term of Injunctions or Stays

Unless otherwise provided in the Plan or in the Confirmation Order, all injunctions or stays in effect in the Chapter 11 Case pursuant to Bankruptcy Code sections 105 or 362 or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan, the Confirmation Order and the Stipulation of Settlement 9019 Approval Order shall remain in full force and effect in accordance with their terms.

 

J. Entire Agreement

Except as otherwise indicated, the Plan supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into the Plan.

 

K. Exhibits and Related Documents

All exhibits and documents Filed in relation to the Plan are incorporated into and are a part of the Plan as if set forth in full in the Plan. After any exhibits and documents are Filed, copies of such exhibits and documents shall be available upon written request to the Debtor’s counsel at the address above or by downloading such exhibits and documents from the Debtor’s restructuring website, http://www.kccllc.net/ambac, or the Bankruptcy Court’s website, http://www.nys.uscourts.gov (a PACER login and password are required to access documents on the Bankruptcy Court’s website).

 

L. Severability of Plan Provisions

If, before Confirmation of the Plan, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan shall remain in full force and effect and shall in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable.

 

M. Closing of Chapter 11 Case

Promptly after the full administration of the Chapter 11 Case, the Reorganized Debtor shall File with the Bankruptcy Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Bankruptcy Court to close the Chapter 11 Case.

 

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N. Waiver or Estoppel Conflicts

Each Holder of a Claim or Equity Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its Claim or Equity Interest should be Allowed in a certain amount, in a certain priority, secured, or not subordinated, by virtue of an agreement made with the Debtor or its counsel, the Committee or its counsel, or any other Entity, if such agreement was not disclosed in the Plan, the Disclosure Statement, or papers Filed with the Bankruptcy Court prior to the Confirmation Date.

 

O. Conflicts

Except as set forth in the Plan or unless otherwise ordered by the Bankruptcy Court, to the extent that the Disclosure Statement, any order of the Bankruptcy Court (other than the Confirmation Order), or any exhibit to the Plan or document executed or delivered in connection with the Plan is inconsistent with the terms of the Plan, the terms of the Plan shall control; provided, however, that to the extent the Mediation Agreement, the Amended TSA, the Cost Allocation Agreement, the Cooperation Agreement Amendment, the Ruling Request Agreement, the Stipulation of Settlement, or the Stipulation of Settlement 9019 Approval Order may be inconsistent with the Plan, the terms of such document shall control.

 

Dated: April 29, 2013   Respectfully Submitted,
New York, New York  
 

/s/ Stephen M. Ksenak

  Ambac Financial Group, Inc.
  By: Stephen M. Ksenak
  Title: Senior Managing Director and General Counsel

 

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