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Financial Guaranty Insurance Contracts
12 Months Ended
Dec. 31, 2011
Financial Guaranty Insurance Contracts  
Financial Guaranty Insurance Contracts

5. Financial Guaranty Insurance Contracts

Accounting Policies

Premium Revenue Recognition

        Premiums are received either upfront or in installments over the life of the contract. Accounting policies for financial guaranty contracts that meet the definition of insurance are consistent whether the contract was written on a direct basis, assumed from another financial guarantor under a reinsurance treaty, ceded to another insurer under a reinsurance treaty or acquired in a business combination. Accounting for financial guaranty contracts that do not meet the FASB definition of a derivative are subject to industry specific guidance which prescribes revenue recognition and loss measurement and recognition methodologies.

        "Unearned premium reserve" or "unearned premium revenue" represents "deferred premium revenue" net of paid claims that have not yet been expensed, or "contra-paid." See "—Loss and Loss Adjustment Expense Reserve" below for a description of "contra-paid."

        The amount of deferred premium revenue at contract inception is determined as follows:

  • For upfront premium financial guaranty insurance contracts originally underwritten by the Company, deferred premium revenue is equal to the amount of cash received. Upfront premiums typically relate to public finance transactions.

    For installment premium financial guaranty insurance contracts originally underwritten by the Company, deferred premium revenue is the present value of either (1) contractual premiums due or (2) premiums expected to be collected over the life of the contract. The contractual term is used to estimate the present value of future premiums unless the obligations underlying the financial guaranty contract represent homogeneous pools of assets for which prepayments are contractually prepayable, the amount of prepayments are probable, and the timing and amount of prepayments can be reasonably estimated. When the Company makes a significant adjustment to prepayment assumptions, or expected premium collections, it recognizes a prospective change in premium revenues. When the Company adjusts prepayment assumptions, an adjustment is recorded to the deferred premium revenue, with a corresponding adjustment to the premium receivable. Installment premiums typically relate to structured finance transactions, where the insurance premium rate is determined at the inception of the contract but the insured par is subject to prepayment throughout the life of the deal.

    For financial guaranty contracts acquired in a business combination, deferred premium revenue is equal to the fair value at the date of acquisition based on what a hypothetical similarly rated financial guaranty insurer would have charged for the contract at that date and not the actual cash flows under the insurance contract.

        The Company recognizes deferred premium revenue as earned premium over the contractual period or expected period of the contract in proportion to the amount of insurance protection provided. Amounts expected to be recognized in net earned premiums differ significantly from expected cash collections due primarily to amounts in deferred premium revenue representing cash already collected on policies paid upfront and fair value adjustments recorded in connection with the AGMH Acquisition. As premium revenue is recognized, a corresponding decrease to the deferred premium revenue is recorded. The amount of insurance protection provided is a function of the insured principal amount outstanding. Accordingly, the proportionate share of premium revenue recognized in a given reporting period is a constant rate calculated based on the relationship between the insured principal amounts outstanding in the reporting period compared with the sum of each of the insured principal amounts outstanding for all periods. When the issuer of an insured financial obligation retires the insured financial obligation before its maturity, the financial guaranty insurance contract on the retired financial obligation is extinguished. The Company immediately recognizes any nonrefundable deferred premium revenue related to that contract as premium revenue and recognizes any associated acquisition costs previously deferred as an expense.

        In the Company's assumed businesses, the Company estimates the ultimate written and earned premiums to be received from a ceding company at the end of each quarterly reporting period. A portion of the premiums must be estimated because some of the companies that cede to Assured Guaranty report premium data between 30 and 90 days after the end of the reporting period. Earned premium reported in the Company's consolidated statements of operations are based upon reports received from ceding companies supplemented by the Company's own estimates of premium for which ceding company reports have not yet been received. Differences between such estimates and actual amounts are recorded in the period in which the actual amounts are determined. When installment premiums are related to assumed reinsurance amounts, the Company assesses the credit quality and liquidity of the company that the premiums are assumed from as well as the impact of any potential regulatory constraints to determine the collectability of such amounts.

        Deferred premium revenue ceded to reinsurers is recorded as an asset called "ceded unearned premium reserve." The corresponding income statement recognition is included with the direct and assumed business in "net earned premiums."

Loss and Loss Adjustment Expense Reserve

        Under financial guaranty insurance accounting, the sum of unearned premium reserve and loss and LAE reserves represents the Company's stand-ready obligation. At contract inception, the entire stand-ready obligation is represented by unearned premium reserve. A Loss and LAE reserve for a contract is only recorded when expected losses to be paid in the future plus contra-paid (i.e. "total losses") exceed the deferred premium revenue on a contract by contract basis.

        "Expected loss to be paid" represents the Company's discounted expected future cash outflows for claim payments, net of expected salvage and subrogation expected to be recovered. See "—Salvage and Subrogation Recoverable" below.

        When a claim payment is made on a contract it first reduces any recorded "loss and LAE reserve." To the extent a "loss and LAE reserve" is not recorded on a contract, which occurs when total losses are less than deferred premium revenue, or to the extent loss and LAE reserve is not sufficient to cover a claim payment, then such claim payment is recorded as "contra-paid," which reduces the unearned premium reserve. The contra-paid is recognized in the line item "loss and LAE" in the consolidated statement of operations when and for the amount that total losses exceed the remaining deferred premium revenue on the contract.

        The "expected loss to be paid" is equal to the present value of expected future net cash outflows to be paid under the contract using the current risk-free rate. That current risk-free rate is based on the remaining period of the contract used in the premium revenue recognition calculation (i.e., the contractual or expected period, as applicable). The Company updates the discount rate each quarter and records the effect of such changes in loss development. Expected net cash outflows are probability weighted cash flows that reflect the likelihood of all possible outcomes. The Company estimates the expected net cash outflows using management's assumptions about the likelihood of all possible outcomes based on all information available to it. Those assumptions consider the relevant facts and circumstances and are consistent with the information tracked and monitored through the Company's risk-management activities.

Salvage and Subrogation Recoverable

        When the Company becomes entitled to the cash flow from the underlying collateral of an insured credit under salvage and subrogation rights as a result of a claim payment or estimated future claim payment, it reduces the "expected loss to be paid" on the contract. Such reduction in expected to be paid can result in one of the following:

  • a reduction in the corresponding loss and LAE reserve with a benefit to the income statement,

    no entry recorded, if "total loss" is not in excess of deferred premium revenue, or

    the recording of a salvage asset with a benefit to the income statement if the expected loss is in a net cash inflow position at the reporting date.         

        The Company recognizes the expected recovery of AGMH claim payments made prior to the Acquisition consistent with its policy for recognizing recoveries on all financial guaranty insurance contracts. To the extent that the estimated amount of recoveries increases or decreases, due to changes in facts and circumstances, including the examination of additional loan files and our experience in recovering loans put back to the originator, the Company would recognize a benefit or expense consistent with how changes in the expected recovery of all other claim payments are recorded.

Policy Acquisition Costs

        Costs that vary with and are directly related to the production of new financial guaranty contracts that meet the definition of insurance are deferred and amortized in relation to earned premiums. These costs include direct and indirect expenses such as ceding commissions, and the cost of underwriting and marketing personnel. Management uses its judgment in determining the type and amount of cost to be deferred. The Company conducts an annual study to determine which operating costs vary with, and are directly related to, the acquisition of new business, and therefore qualify for deferral. Ceding commission income on business ceded to third party reinsurers reduces policy acquisition costs and is deferred. Expected losses, LAE and the remaining costs of servicing the insured or reinsured business are considered in determining the recoverability of DAC. When an insured issue is retired early, the remaining related DAC is expensed at that time. Ceding commission expense and income associated with future installment premiums on assumed and ceded business, respectively, are calculated at their contractually defined rates and recorded in deferred acquisition costs on the consolidated balance sheets with a corresponding offset to net premium receivable or reinsurance balances payable.

        In October 2010, the FASB adopted Accounting Standards Update ("Update") No. 2010-26. The amendment in the Update specifies that certain costs incurred in the successful acquisition of new and renewal insurance contracts should be capitalized. These costs include direct costs of contract acquisition that result directly from and are essential to the contract transaction and would not have been incurred by the insurance entity had the contract transaction not occurred. Costs incurred by the insurer for soliciting potential customers, market research, training, administration, unsuccessful acquisition efforts, and product development as well as all overhead type costs should be charged to expense as incurred. This guidance is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2011. The Company is adopting this new guidance on January 1, 2012 and estimates that the after-tax cumulative effect on opening retained earnings on that date to be a decrease of $60 million to $80 million and the pre-tax cumulative effect on DAC to be a decrease of $90 million to $110 million. The Company is adopting this guidance with retrospective application and will revise previously issued historical financial statements in future filings.

Application of Financial Guaranty Insurance Accounting to the AGMH Acquisition

        Acquisition accounting required that the fair value of each of the financial guaranty contracts in AGMH's insured portfolio be recorded on the Company's consolidated balance sheet at the Acquisition Date. The fair value of AGMH's direct contracts was recorded on the line items "premium receivable, net of ceding commissions payable" and "unearned premium reserve" and the fair value of its ceded contracts was recorded within "reinsurance balances payable" and "ceded unearned premium reserve" on the consolidated balance sheet.

        At the Acquisition Date, the acquired AGMH financial guaranty insurance contracts were recorded at fair value. Due to the unprecedented credit crisis, the Company acquired AGMH at a significant discount to its book value primarily because the fair value of the obligation associated with its financial guaranty insurance contracts was significantly in excess of the obligation's historical carrying value. The Company, taking into account then current market spreads and risk premiums, recorded the fair value of these contracts based on what a hypothetical similarly rated financial guaranty insurer would have charged for each contract at the Acquisition Date and not the actual cash flows under the insurance contract. This resulted in some AGMH acquired contracts having a significantly higher unearned premium reserve and, subsequently, higher premium earnings compared to the contractual premium cash flows for the policy.

        On the Acquisition Date, there were limited financial guaranty contracts being written in the structured finance market, particularly in the U.S. RMBS asset class. Therefore, for certain asset classes, significant judgment was required by management to determine the estimated fair value of the acquired contracts. The Company determined the fair value of these contracts by taking into account the rating of the insured obligation, expectation of loss, estimated risk premiums, sector and term.

Financial Guaranty Insurance Premiums and Losses

        The portfolio of outstanding exposures discussed in Note 4, Outstanding Exposure, includes financial guaranty 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 to financial guaranty insurance contracts. Tables presented herein also present reconciliations to financial statement line items for other less significant types of insurance.


Net Earned Premiums

 
  Year Ended December 31,  
 
  2011   2010   2009  
 
  (in millions)
 

Scheduled net earned premiums

  $ 764.6   $ 1,054.4   $ 724.9  

Acceleration of premium earnings

    125.2     90.0     173.8  

Accretion of discount on net premiums receivable

    28.5     39.9     28.7  
               

Total financial guaranty

    918.3     1,184.3     927.4  

Other

    1.8     2.4     3.0  
               

Total net earned premiums(1)

  $ 920.1   $ 1,186.7   $ 930.4  
               

(1)
Excludes $74.7 million in 2011 and $47.6 million in 2010, related to consolidated FG VIEs.


Gross Premium Receivable, Net of Ceding Commissions Roll Forward

 
  Year Ended December 31,  
 
  2011   2010   2009  
 
  (in millions)
 

Gross premium receivable, net of ceding commissions payable:

                   

Balance beginning of period, December 31

  $ 1,167.6   $ 1,418.2   $ 15.7  

Change in accounting(1)

        (19.0 )   721.5  
               

Balance beginning of the period, adjusted

    1,167.6     1,399.2     737.2  

Premiums receivable purchased in AGMH Acquisition on July 1, 2009 after intercompany eliminations

            800.9  

Premium written, net(2)

    244.6     347.1     594.5  

Premium payments received, net

    (317.6 )   (486.8 )   (736.4 )

Adjustments to the premium receivable:

                   

Changes in the expected term of financial guaranty insurance contracts

    (104.0 )   (101.8 )   (37.5 )

Accretion of discount

    31.8     43.1     27.7  

Foreign exchange translation

    (5.1 )   (31.4 )   37.0  

Consolidation of FG VIEs

    (9.8 )   (6.5 )    

Other adjustments

    (4.6 )   4.7     (5.2 )
               

Balance, end of period, December 31(3)

  $ 1,002.9   $ 1,167.6   $ 1,418.2  
               

(1)
Represents elimination of premium receivable at January 1, 2010 related to consolidated FG VIEs upon the adoption of the new accounting guidance and the adoption of the financial guaranty insurance accounting model on January 1, 2009.

(2)
Includes $16.1 million of premium written related to financial guaranty insurance contracts which replaced existing credit derivative contracts in 2011.

(3)
Excludes $27.5 million as of December 31, 2011 and $23.4 million as of December 31, 2010 related to consolidated FG VIEs.

        Gains or losses due to foreign exchange rate changes relate to installment premium receivables denominated in currencies other than the U.S. dollar. Approximately 47% and 42% of installment premiums at December 31, 2011 and 2010, respectively, are denominated in currencies other than the U.S. dollar, primarily in euro and British Pound Sterling.

        Actual collections may differ from expected collections in the tables below due to factors such as foreign exchange rate fluctuations, counterparty collectability issues, refundings, accelerations, commutations and changes in expected lives.


Expected Collections of Gross Premiums Receivable,
Net of Ceding Commissions (Undiscounted)

 
  December 31, 2011  
 
  (in millions)
 

2012 (January 1 – March 31)

  $ 56.2  

2012 (April 1 – June 30)

    40.6  

2012 (July 1 – September 30)

    28.4  

2012 (October 1 – December 31)

    42.8  

2013

    104.3  

2014

    92.1  

2015

    81.8  

2016

    75.9  

2017-2021

    299.1  

2022-2026

    200.3  

2027-2031

    146.5  

After 2031

    178.6  
       

Total(1)

  $ 1,346.6  
       

(1)
Excludes expected cash collections on FG VIEs of $33.3 million.


Components of Unearned Premium Reserve

 
  As of December 31, 2011   As of December 31, 2010  
 
  Gross   Ceded   Net(1)   Gross   Ceded   Net(1)  
 
  (in millions)
 

Deferred premium revenue

  $ 6,046.3   $ 727.4   $ 5,318.9   $ 7,108.2   $ 846.2   $ 6,262.0  

Contra-paid

    (92.2 )   (18.8 )   (73.4 )   (146.1 )   (24.8 )   (121.3 )
                           

Total financial guaranty

    5,954.1     708.6     5,245.5     6,962.1     821.4     6,140.7  

Other

    8.7     0.3     8.4     10.8     0.4     10.4  
                           

Total

  $ 5,962.8   $ 708.9   $ 5,253.9   $ 6,972.9   $ 821.8   $ 6,151.1  
                           

(1)
Total net unearned premium reserve excludes $274.2 million and $193.2 million related to FG VIE's as of December 31, 2011 and December 31, 2010, respectively.

        The following table provides a schedule of the expected timing of the income statement recognition of financial guaranty insurance net deferred premium revenue and the present value of net expected losses to be expensed, pretax which are not included in loss and LAE reserve. The amount and timing of actual premium earnings and loss and LAE may differ from the estimates shown below due to factors such as refundings, accelerations, commutations, changes in expected lives and updates to loss estimates. A Loss and LAE reserve is only recorded for the amount by which net expected loss to be expensed exceeds deferred premium revenue determined on a contract-by-contract basis. This table excludes amounts related to consolidated FG VIEs.


Expected Timing of Financial Guaranty Insurance
Premium and Loss Recognition

 
  As of December 31, 2011  
 
  Scheduled
Net Earned
Premium
  Net Expected
Loss to be
Expensed
  Net  
 
  (in millions)
 

2012 (January 1–March 31)

  $ 153.5   $ 32.1   $ 121.4  

2012 (April 1–June 30)

    147.5     27.5     120.0  

2012 (July 1–September 30)

    140.5     24.0     116.5  

2012 (October 1–December 31)

    134.5     20.9     113.6  
               

Subtotal 2012

    576.0     104.5     471.5  

2013

    485.8     61.0     424.8  

2014

    426.5     44.0     382.5  

2015

    378.4     34.9     343.5  

2016

    343.1     30.9     312.2  

2017 - 2021

    1,297.7     135.3     1,162.4  

2022 - 2026

    811.8     68.1     743.7  

2027 - 2031

    492.5     34.4     458.1  

After 2031

    507.1     24.3     482.8  
               

Total present value basis(1)(2)

    5,318.9     537.4     4,781.5  

Discount

    296.0     276.1     19.9  
               

Total future value

  $ 5,614.9   $ 813.5   $ 4,801.4  
               

(1)
Balances represent discounted amounts.

(2)
Consolidation of FG VIEs resulted in reductions of $407.2 million in future scheduled amortization of deferred premium revenue and $222.7 million in net present value of expected loss to be expensed.


Selected Information for Policies Paid in Installments

 
  As of December 31,  
 
  2011   2010  
 
  (dollars in millions)
 

Premiums receivable, net of ceding commission payable

  $ 1,002.9   $ 1,167.6  

Gross deferred premium revenue

    2,192.6     2,933.6  

Weighted-average risk-free rate used to discount premiums

    3.4     3.5  

Weighted-average period of premiums receivable (in years)

    9.8     10.1  


Rollforward of Deferred Acquisition Costs

 
  Year Ended December 31,  
 
  2011   2010   2009  
 
  (in millions)
 

Balance, beginning of period

  $ 239.8   $ 242.0   $ 288.6  

Change in accounting(1)

            101.8  

Settlement of pre-existing relationships(2)

            (114.0 )

Costs deferred during the period:

                   

Ceded and assumed commissions

    (12.5 )   (18.2 )   (10.2 )

Premium taxes

    6.6     11.6     14.2  

Compensation and other acquisition costs

    28.8     39.4     25.9  
               

Total

    22.9     32.8     29.9  

Costs amortized during the period

    (30.8 )   (34.1 )   (53.9 )

Foreign exchange translation

    0.0     (0.9 )   (10.4 )
               

Balance, end of period

  $ 231.9   $ 239.8   $ 242.0  
               

(1)
Represents the effect of the adoption of financial guaranty accounting guidance on January 1, 2009.

(2)
As discussed in Note 3, Business Combinations, the Company settled the pre-existing relationship with AGMH. This relates to DAC associated with business previously assumed by AG Re from AGMH.

Loss Estimation Process

        The Company's loss reserve committees estimate expected loss to be paid for its financial guaranty exposures. Surveillance personnel present analysis related to potential losses to the Company's loss reserve committees for consideration in estimating the expected loss to be paid. Such analysis includes the consideration of various scenarios with potential probabilities assigned to them. Depending upon the nature of the risk, the Company's view of the potential size of any loss and the information available to the Company, that analysis may be based upon individually developed cash flow models, internal credit rating assessments and sector-driven loss severity assumptions or judgmental assessments. In the case of its assumed business, the Company may conduct its own analysis as just described or, depending on the Company's view of the potential size of any loss and the information available to the Company, the Company may use loss estimates provided by ceding insurers. The Company's loss reserve committees review and refresh the estimate of expected loss to be paid each quarter. The Company's estimate of ultimate loss on a policy is subject to significant uncertainty over the life of the insured transaction due to the potential for significant variability in credit performance as a result of economic, fiscal and financial market variability over the long duration of most contracts. The determination of expected loss to be paid is an inherently subjective process involving numerous estimates, assumptions and judgments by management.

        The following table presents a roll forward of the present value of net expected loss to be paid for financial guaranty insurance contracts by sector. Net expected loss to be paid is the estimate of the present value of future claim payments, net of reinsurance and net of salvage and subrogation, which includes the present value benefit of estimated recoveries for breaches of R&W. The Company used weighted average risk-free rates for U.S. dollar denominated obligations, which ranged from 0.0% to 3.27% as of December 31, 2011 and 0.0% to 5.34% as of December 31, 2010.

Financial Guaranty Insurance
Present Value of Net Expected Loss to be Paid
Roll Forward by Sector(1)

 
  Net Expected
Loss to be
Paid as of
December 31,
2010(4)
  Economic Loss
Development(2)
  (Paid)
Recovered
Losses(3)
  Net Expected
Loss to be
Paid as of
December 31,
2011(4)
 
 
  (in millions)
 

U.S. RMBS:

                         

First lien:

                         

Prime first lien

  $ 1.4   $ 0.4   $   $ 1.8  

Alt-A first lien

    184.4     14.6     (64.1 )   134.9  

Option ARM

    523.7     3.9     (374.7 )   152.9  

Subprime

    200.4     (43.0 )   (17.1 )   140.3  
                   

Total first lien

    909.9     (24.1 )   (455.9 )   429.9  

Second lien:

                         

Closed-end second lien

    56.6     (78.0 )   (58.2 )   (79.6 )

HELOCs

    (805.7 )   151.0     623.6     (31.1 )
                   

Total second lien

    (749.1 )   73.0     565.4     (110.7 )
                   

Total U.S. RMBS

    160.8     48.9     109.5     319.2  

Other structured finance

    159.1     111.0     (17.3 )   252.8  

Public finance

    88.9     42.3     (65.2 )   66.0  
                   

Total

  $ 408.8   $ 202.2   $ 27.0   $ 638.0  
                   

 

 
  Net Expected
Loss to be
Paid as of
December 31,
2009
  Economic Loss
Development(2)
  (Paid)
Recovered
Losses(3)
  Expected
Loss to be
Paid as of
December 31,
2010(4)
 
 
  (in millions)
 

U.S. RMBS:

                         

First lien:

                         

Prime first lien

  $   $ 1.4   $   $ 1.4  

Alt-A first lien

    204.4     40.0     (60.0 )   184.4  

Option ARM

    545.2     160.1     (181.6 )   523.7  

Subprime

    77.5     126.3     (3.4 )   200.4  
                   

Total first lien

    827.1     327.8     (245.0 )   909.9  

Second lien:

                         

Closed-end second lien

    199.3     (73.3 )   (69.4 )   56.6  

HELOCs

    (206.6 )   (86.3 )   (512.8 )   (805.7 )
                   

Total second lien

    (7.3 )   (159.6 )   (582.2 )   (749.1 )
                   

Total U.S. RMBS

    819.8     168.2     (827.2 )   160.8  

Other structured finance

    115.7     52.0     (8.6 )   159.1  

Public finance

    130.9     9.6     (51.6 )   88.9  
                   

Total

  $ 1,066.4   $ 229.8   $ (887.4 ) $ 408.8  
                   

(1)
Amounts include all expected payments whether or not the insured transaction VIE is consolidated. Amounts exclude reserves for mortgage business of $1.9 million as of December 31, 2011 and $2.1 million as of December 31, 2010.

(2)
Economic loss development includes the effects of changes in assumptions based on observed market trends, changes in discount rates, accretion of discount and the economic effects of loss mitigation efforts.

(3)
Net of ceded paid losses, whether or not such amounts have been settled with reinsurers. Ceded paid losses are typically settled 45 days after the end of the reporting period. Such amounts are recorded in reinsurance recoverable on paid losses included in other assets.

(4)
Includes expected LAE to be paid for mitigating claim liabilities of $35.5 million as of December 31, 2011 and $17.2 million as of December 31, 2010.

        The table below provides a reconciliation of expected loss to be paid to expected loss to be expensed. Expected loss to be paid differs from expected loss to be expensed due to: (1) the contra-paid because the payments have been made but have not yet been expensed, (2) for transactions with a net expected recovery, the addition of claim payments that have been made (and therefore are not included in expected loss to be paid) that are expected to be recovered in the future (and therefore have also reduced expected loss to be paid), and (3) loss reserves that have already been established (and therefore expensed but not yet paid).

Reconciliation of Present Value of Net Expected Loss to be Paid
and Net Present Value of Net Expected Loss to be Expensed

 
  As of December 31,  
 
  2011   2010  
 
  (in millions)
 

Net expected loss to be paid

  $ 638.0   $ 408.8  

Less: net expected loss to be paid for FG VIEs

    (106.7 )   49.2  
           

Total

    744.7     359.6  

Contra-paid, net

    73.4     121.3  

Salvage and subrogation recoverable

    367.7     1,032.4  

Ceded salvage and subrogation recoverable(1)

    (40.6 )   (129.4 )

Loss and LAE reserve

    (676.9 )   (570.8 )

Reinsurance recoverable on unpaid losses

    69.1     20.8  
           

Net expected loss to be expensed(2)

  $ 537.4   $ 833.9  
           

(1)
Recorded in reinsurance balances payable on the consolidated balance sheet.

(2)
Excludes $222.7 million and $211.9 million as of December 31, 2011 and 2010, respectively, related to consolidated FG VIEs.

The Company's Approach to Projecting Losses in U.S. RMBS

        The Company projects losses on its insured U.S. RMBS on a transaction-by-transaction basis by projecting the performance of the underlying pool of mortgages over time and then applying the structural features (i.e., payment priorities and tranching) of the RMBS to the projected performance of the collateral over time. The resulting projected claim payments or reimbursements are then discounted using risk-free rates. For transactions where the Company projects it will receive recoveries from providers of R&W, it projects the amount of recoveries and either establishes a recovery for claims already paid or reduces its projected claim payments accordingly.

        The further behind a mortgage borrower falls in making payments, the more likely it is that he or she will default. The rate at which borrowers from a particular delinquency category (number of monthly payments behind) eventually default is referred to as the "liquidation rate." Liquidation rates may be derived from observed roll rates, which are the rates at which loans progress from one delinquency category to the next and eventually to default and liquidation. The Company applies liquidation rates to the mortgage loan collateral in each delinquency category and makes certain timing assumptions to project near-term mortgage collateral defaults from loans that are currently delinquent.

        Mortgage borrowers that are not more than one payment behind (generally considered performing borrowers) have demonstrated an ability and willingness to pay throughout the recession and mortgage crisis, and as a result are viewed as less likely to default than delinquent borrowers. Performing borrowers that eventually default will also need to progress through delinquency categories before any defaults occur. The Company projects how many of the currently performing loans will default and when by first converting the projected near term defaults of delinquent borrowers derived from liquidation rates into a vector of conditional default rates, then projecting how the conditional default rates will develop over time. Loans that are defaulted pursuant to the conditional default rate after the liquidation of currently delinquent loans represent defaults of currently performing loans. A conditional default rate is the outstanding principal amount of defaulted loans liquidated in the current month divided by the remaining outstanding amount of the whole pool of loans (or "collateral pool balance"). The collateral pool balance decreases over time as a result of scheduled principal payments, partial and whole principal repayments, and defaults.

        In order to derive collateral pool losses from the collateral pool defaults it has projected, the Company applies a loss severity. The loss severity is the amount of loss the transaction experiences on a defaulted loan after the application of net proceeds from the disposal of the underlying property. The Company projects loss severities by sector based on its experience to date. Further detail regarding the assumptions and variables the Company used to project collateral losses in its U.S. RMBS portfolio may be found below in the sections "U.S. Second Lien RMBS Loss Projections: HELOCs and Closed-End Second Lien" and "U.S. First Lien RMBS Loss Projections: Alt-A First Lien, Option ARM, Subprime and Prime."

        The Company is in the process of enforcing claims for breaches of R&W regarding the characteristics of the loans included in the collateral pools. The Company calculates a credit from the RMBS issuer for such recoveries where the R&W were provided by an entity the Company believes to be financially viable and where the Company already has access or believes it will attain access to the underlying mortgage loan files. Where the Company has an agreement with an R&W provider (e.g., the Bank of America Agreement) or where it is in advanced discussions on a potential agreement, that credit is based on the agreement or potential agreement. In second lien RMBS transactions where there is no agreement or advanced discussions, this credit is based on a percentage of actual repurchase rates achieved across those transactions where material repurchases have been made, while in first lien RMBS transactions where there is no agreement or advanced discussions, this credit is estimated by reducing collateral losses projected by the Company to reflect a percentage of the recoveries the Company believes it will achieve, based on the number of breaches identified to date and incorporated scenarios based on the amounts the Company was able to negotiate under the Bank of America Agreement. The first lien approach is different from the second lien approach because the Company's first lien transactions have multiple tranches and a more complicated method is required to correctly allocate credit to each tranche. In each case, the credit is a function of the projected lifetime collateral losses in the collateral pool, so an increase in projected collateral losses generally increases the R&W credit calculated by the Company for the RMBS issuer. Further detail regarding how the Company calculates these credits may be found under "Breaches of Representations and Warranties" below.

        The Company projects the overall future cash flow from a collateral pool by adjusting the payment stream from the principal and interest contractually due on the underlying mortgages for (a) the collateral losses it projects as described above, (b) assumed voluntary prepayments and (c) recoveries for breaches of R&W as described above. The Company then applies an individual model of the structure of the transaction to the projected future cash flow from that transaction's collateral pool to project the Company's future claims and claim reimbursements for that individual transaction. Finally, the projected claims and reimbursements are discounted using risk-free rates. As noted above, the Company runs several sets of assumptions regarding mortgage collateral performance, or scenarios, and probability weights them.

Year-End 2011 U.S. RMBS Loss Projections

        The shape of the RMBS loss projection curves used by the Company in both the year end of 2011 and the year end of 2010 assume that the housing and mortgage markets will eventually improve. The Company retained the same general shape of the RMBS loss projection curves at year end 2011 as at year end 2010, reflecting the Company's view, based on its observation of continued elevated levels of early stage delinquencies, that the housing and mortgage market recovery is occurring at a slower than previously expected pace. Over the course of 2011, the Company also made a number of changes to its RMBS loss projection assumptions reflecting that same view of the housing and mortgage markets.

        The scenarios the Company used to project RMBS collateral losses for second lien RMBS transactions at year end 2011 were essentially the same as those it used at year end 2010, except that based on its observation of the continued elevated levels of early stage delinquencies, (i) as noted above, the Company retained the same general shape of its RMBS loss projection curves, (ii) the Company increased its base case expected period for reaching the final conditional default rate in 2011; and (iii) the Company adjusted the probability weightings it applied from year-end 2010 to reflect the changes to those scenarios. Taken together, the changes in assumptions between year-end 2010 and 2011 had the effect of reflecting a slower recovery in the housing market than had been assumed at the beginning of the year.

        The Company used the same general approach to project RMBS collateral losses for first lien RMBS transactions at year end 2011 as it did at year end 2010, except that (i) as noted above, based on its observation of the continued elevated levels of early stage delinquencies, the Company retained the same general shape of its RMBS loss projection curves; (ii) based on its observation of increased loss severity rates, the Company increased its projected loss severity rates in various of its scenarios; and (iii) based on its observation of liquidation rates, the Company decreased the liquidation rates it applies to non-performing loans (the Company made this change at year-end 2011). Finally, again reflecting continued high levels of early stage delinquencies and increased loss severity rates, the Company added a more stressful scenario at year-end 2011 reflecting an even slower potential recovery in the housing and mortgage markets. Additionally, the Company's year-end 2011 base case is a scenario that in previous quarters was assumed to be one of the stress scenarios. Taken together, the changes in assumptions between year-end 2010 and 2011 had the effect of (a) reflecting a slower recovery in the housing market than had been assumed at the beginning of the year and (b) for subprime transactions increasing the initial loss severities in most scenarios from 80% to 90% and for other first lien transactions increasing initial loss severities from 60% to 65% and peak loss severities in a stress case from 60% to 75%.

        The Company also used generally the same methodology to project the credit received for recoveries in R&W at year-end 2011 as was used at year-end 2010. The primary difference relates to the execution of the Bank of America Agreement and the inclusion of the terms of the agreement as a potential scenario in transactions not covered by the Bank of America as well as incorporating the projected terms of a potential agreement with another entity. Compared with year-end 2010, the Company calculated R&W credits for two more second lien transactions and 11 more first lien transactions where either it obtained loan files, concluded it had the right to obtain loan files that it had not previously concluded were accessible or anticipates receiving a benefit due to an agreement or potential agreement with an R&W provider.

Year-End 2010 U.S. RMBS Loss Projections

        The Company retained the same general shape of the RMBS loss projection curves at year end 2010 as at year end 2009, reflecting the Company's view, based on its observation of continued elevated levels of early stage delinquencies, that the housing and mortgage market recovery was occurring at a slower than previously expected pace. The specific shape of those curves was adjusted in the second quarter 2010 to reflect the Company's view that it was observing the beginning of an improvement in the housing and mortgage markets, and this specific shape of the loss projection curves was retained at year-end 2010. However, in the fourth quarter 2010, due to the Company's concerns about the timing and strength of any recovery in the mortgage and housing markets, the Company adjusted the probability weightings it applied to its scenarios to reflect a somewhat more pessimistic view. Also in the fourth quarter 2010 the Company increased its initial subprime loss severity assumption to reflect recent experience. Taken together, the changes in the assumptions between year-end 2009 and 2010 had the effect of (a) reflecting a slower recovery in the housing market than had been assumed at the beginning of the year, and (b) increasing the assumed initial loss severities for subprime transactions from 70% to 80%.

        The Company also used generally the same methodology to project the credit received for recoveries on R&W at year-end 2010 as it used at year-end 2009. Other than the impact of the increase in projected collateral defaults on the calculation of the credit, the primary difference relates to the population of transactions the Company included in its R&W credits. The Company added credits for four second lien transactions: two transactions where a capital infusion of the provider of the R&W made that company financially viable in the Company's opinion and another two transactions where the Company obtained loan files that it had not previously concluded were accessible. The Company added credits for four first lien transactions where it has obtained loan files that it had not previously concluded were accessible. The Company also refined some of the assumptions in the calculation of the amount of the credit to reflect actual experience.

U.S. Second Lien RMBS Loss Projections: HELOCs and Closed-End Second Lien

        The Company insures two types of second lien RMBS: those secured by HELOCs and those secured by closed end second lien mortgages. HELOCs are revolving lines of credit generally secured by a second lien on a one to four family home. A mortgage for a fixed amount secured by a second lien on a one to four family home is generally referred to as a closed end second lien. Both first lien RMBS and second lien RMBS sometimes include a portion of loan collateral with a different priority than the majority of the collateral. The Company has material exposure to second lien mortgage loans originated and serviced by a number of parties, but the Company's most significant second lien exposure is to HELOCs originated and serviced by Countrywide, a subsidiary of Bank of America. See "—Breaches of Representations and Warranties."

        The delinquency performance of HELOC and closed end second lien exposures included in transactions insured by the Company began to deteriorate in 2007, and such transactions, particularly those originated in the period from 2005 through 2007, continue to perform below the Company's original underwriting expectations. While insured securities benefit from structural protections within the transactions designed to absorb collateral losses in excess of previous historically high levels, in many second lien RMBS projected losses now exceed those structural protections.

        The Company believes the primary variables affecting its expected losses in second lien RMBS transactions are the amount and timing of future losses in the collateral pool supporting the transactions and the amount of loans repurchased for breaches of R&W (or agreements with R&W providers related to such obligations). Expected losses are also a function of the structure of the transaction; the voluntary prepayment rate (typically also referred to as conditional prepayment rate of the collateral); the interest rate environment; and assumptions about the draw rate and loss severity. These variables are interrelated, difficult to predict and subject to considerable volatility. If actual experience differs from the Company's assumptions, the losses incurred could be materially different from the estimate. The Company continues to update its evaluation of these exposures as new information becomes available.

        The following table shows the key assumptions used in the calculation of estimated expected loss to be paid for direct vintage 2004 - 2008 second lien U.S. RMBS.

Key Assumptions in Base Case Expected Loss Estimates
Second Lien RMBS(1)

HELOC Key Variables
  As of December 31, 2011   As of December 31, 2010   As of December 31, 2009

Plateau conditional default rate

  4.0 – 27.4%   4.2 – 22.1%   10.7 – 40.0%

Final conditional default rate trended down to

  0.4 – 3.2%   0.4 – 3.2%   0.5 – 3.2%

Expected period until final conditional default rate

  36 months   24 months   21 months

Initial conditional prepayment rate

  1.4 – 25.8%   3.3 – 17.5%   1.9 – 14.9%

Final conditional prepayment rate

  10%   10%   10%

Loss severity

  98%   98%   95%

Initial draw rate

  0.0 – 15.3%   0.0 – 6.8%   0.1 – 2.0%

 

Closed end second lien Key Variables
  As of
December 31,
2011
  As of
December 31,
2010
  As of
December 31,
2009

Plateau conditional default rate

  6.9 – 24.8%   7.3 – 27.1%   21.5 – 44.2%

Final conditional default rate trended down to

  3.5 – 9.2%   2.9 – 8.1%   3.3 – 8.1%

Expected period until final conditional default rate

  36 months   24 months   21 months

Initial conditional prepayment rate

  0.9 – 14.7%   1.3 – 9.7%   0.8 – 3.6%

Final conditional prepayment rate

  10%   10%   10%

Loss severity

  98%   98%   95%

(1)
Represents assumptions for most heavily weighted scenario (the "base case").

        In second lien transactions the projection of near-term defaults from currently delinquent loans is relatively straightforward because loans in second lien transactions are generally "charged off" (treated as defaulted) by the securitization's servicer once the loan is 180 days past due. Most second lien transactions report the amount of loans in five monthly delinquency categories (i.e., 30-59 days past due, 60-89 days past due, 90-119 days past due, 120-149 days past due and 150-179 days past due). The Company estimates the amount of loans that will default over the next five months by calculating current representative liquidation rates (the percent of loans in a given delinquency status that are assumed to ultimately default) from selected representative transactions and then applying an average of the preceding 12 months' liquidation rates to the amount of loans in the delinquency categories. The amount of loans projected to default in the first through fifth months is expressed as a conditional default rate. The first four months' conditional default rate is calculated by applying the liquidation rates to the current period past due balances (i.e., the 150-179 day balance is liquidated in the first projected month, the 120-149 day balance is liquidated in the second projected month, the 90-119 day balance is liquidated in the third projected month and the 60-89 day balance is liquidated in the fourth projected month). For the fifth month the conditional default rate is calculated using the average 30-59 day past due balances for the prior three months. An average of the third, fourth and fifth month conditional default rates is then used as the basis for the plateau period that follows the embedded five months of losses.

        As of December 31, 2011, for the base case scenario, the conditional default rate (the "plateau conditional default rate") was held constant for one month. Once the plateau period has ended, the conditional default rate is assumed to gradually trend down in uniform increments to its final long-term steady state conditional default rate. In the base case scenario, the time over which the conditional default rate trends down to its final conditional default rate is 30 months (compared with 18 months at year-end 2010 and year-end 2009). Therefore, the total stress period for second lien transactions is 36 months, comprising five months of delinquent data, a one month plateau period and 30 months of decrease to the steady state conditional default rate. This is 12 months longer than the 24 months of total stress period used at year-end 2010 and year-end 2009. The long-term steady state conditional default rates are calculated as the constant conditional default rates that would have yielded the amount of losses originally expected at underwriting. When a second lien loan defaults, there is generally a very low recovery. Based on current expectations of future performance, the Company assumes that it will only recover 2% of the collateral, the same as the year-end 2010 but less than the 5% assumed at year-end 2009.

        The rate at which the principal amount of loans is prepaid may impact both the amount of losses projected (which is a function of the conditional default rate and the loan balance over time) as well as the amount of excess spread (which is the excess of the interest paid by the borrowers on the underlying loan over the amount of interest and expenses owed on the insured obligations). In the base case, the current conditional prepayment rate is assumed to continue until the end of the plateau before gradually increasing to the final conditional prepayment rate over the same period the conditional default rate decreases. For transactions where the initial conditional prepayment rate is higher than the final conditional prepayment rate, the initial conditional prepayment rate is held constant. The final conditional prepayment rate is assumed to be 10% for both HELOC and closed end second lien transactions. This level is much higher than current rates for most transactions, but lower than the historical average, which reflects the Company's continued uncertainty about the projected performance of the borrowers in these transactions. This pattern is consistent with how the Company modeled the conditional prepayment rate at year-end 2010. To the extent that prepayments differ from projected levels it could materially change the Company's projected excess spread and losses.

        The Company uses a number of other variables in its second lien loss projections, including the spread between relevant interest rate indices, and HELOC draw rates (the amount of new advances provided on existing HELOCs expressed as a percentage of current outstanding advances). For HELOC transactions, the draw rate is assumed to decline from the current level to a final draw rate over a period of three months. The final draw rates were assumed to range from 0.0% to 1.3% in all but one instance where the final draw rate was 7.7%.

        In estimating expected losses, the Company modeled and probability weighted three possible conditional default rate curves applicable to the period preceding the return to the long-term steady state conditional default rate. Given that draw rates have been reduced to levels below the historical average and that loss severities in these products have been higher than anticipated at inception, the Company believes that the level of the elevated conditional default rate and the length of time it will persist is the primary driver behind the likely amount of losses the collateral will suffer (before considering the effects of repurchases of ineligible loans). The Company continues to evaluate the assumptions affecting its modeling results.

        At year-end 2011, the Company's base case assumed a one month conditional default rate plateau and a 30 month ramp-down (for a total stress period of 36 months). Increasing the conditional default rate plateau to four months and keeping the ramp-down at 30-months (for a total stress period of 39 months) would increase the expected loss by approximately $56.9 million for HELOC transactions and $5.0 million for closed end second lien transactions. On the other hand, keeping the conditional default rate plateau at one month but decreasing the length of the conditional default rate ramp-down to a 24 month assumption (for a total stress period of 30 months) would decrease the expected loss by approximately $53.6 million for HELOC transactions and $2.9 million for closed-end second lien transactions.

U.S. First Lien RMBS Loss Projections: Alt-A First Lien, Option ARM, Subprime and Prime

        First lien RMBS are generally categorized in accordance with the characteristics of the first lien mortgage loans on one-to-four family homes supporting the transactions. The collateral supporting "subprime RMBS" transactions consists of first-lien residential mortgage loans made to subprime borrowers. A "subprime borrower" is one considered to be a higher risk credit based on credit scores or other risk characteristics. Another type of RMBS transaction is generally referred to as "Alt-A first lien." The collateral supporting such transactions consists of first-lien residential mortgage loans made to "prime" quality borrowers who lack certain ancillary characteristics that would make them prime. When more than 66% of the loans originally included in the pool are mortgage loans with an option to make a minimum payment that has the potential to amortize the loan negatively (i.e., increase the amount of principal owed), the transaction is referred to as an "Option ARM." Finally, transactions may be composed primarily of loans made to prime borrowers. Both first lien RMBS and second lien RMBS sometimes include a portion of loan collateral that differs in priority from the majority of the collateral.

        The performance of the Company's first lien RMBS exposures began to deteriorate in 2007 and such transactions, particularly those originated in the period from 2005 through 2007 continue to perform below the Company's original underwriting expectations. The Company currently projects first lien collateral losses many times those expected at the time of underwriting. While insured securities benefited from structural protections within the transactions designed to absorb some of the collateral losses, in many first lien RMBS transactions, projected losses exceed those structural protections.

        The majority of projected losses in first lien RMBS transactions are expected to come from non-performing mortgage loans (those that are delinquent or in foreclosure or where the loan has been foreclosed and the RMBS issuer owns the underlying real estate). An increase in non-performing loans beyond that projected in the previous period is one of the primary drivers of loss development in this portfolio. In order to determine the number of defaults resulting from these delinquent and foreclosed loans, the Company applies a liquidation rate assumption to loans in each of various delinquency categories. The Company arrived at its liquidation rates based on data in Loan Performance and assumptions about how delays in the foreclosure process may ultimately affect the rate at which loans are liquidated. The Loan Performance securities databases, provided by CoreLogic, Inc., are said to be the industry's largest and most comprehensive and include loan-level data on more than $2.2 trillion in mortgage-backed and asset-backed securities (more than 90% of the market) as well as analytical tools designed to help evaluate that data. The liquidation rate is a standard industry measure that is used to estimate the number of loans in a given aging category that will default within a specified time period. The Company projects these liquidations to occur over two years. For year-end 2011 the Company reviewed data in Loan Performance and, based on that data, determined that its liquidation rate assumptions needed to be updated. The following table shows liquidation assumptions for various delinquency categories.

First Lien Liquidation Rates

 
  December 31,
2011
  December 31,
2010
  December 31,
2009
 

30 – 59 Days Delinquent

                   

Alt A and Prime

    35 %   50 %   50 %

Option ARM

    50     50     50  

Subprime

    30     45     45  

60 – 89 Days Delinquent

                   

Alt A and Prime

    55     65     65  

Option ARM

    65     65     65  

Subprime

    45     65     65  

90+ Days Delinquent

                   

Alt A and Prime

    65     75     75  

Option ARM

    75     75     75  

Subprime

    60     70     70  

Bankruptcy

                   

Alt A and Prime

    55     75     75  

Option ARM

    70     75     75  

Subprime

    50     70     70  

Foreclosure

                   

Alt A and Prime

    85     85     85  

Option ARM

    85     85     85  

Subprime

    80     85     85  

Real Estate Owned (REO)

                   

All

    100     100     100  

        While the Company uses liquidation rates as described above to project defaults of non-performing loans, it projects defaults on presently current loans by applying a conditional default rate trend. The start of that conditional default rate trend is based on the defaults the Company projects will emerge from currently nonperforming loans. The total amount of expected defaults from the non-performing loans is translated into a constant conditional default rate (i.e., the conditional default rate plateau), which, if applied for each of the next 24 months, would be sufficient to produce approximately the amount of defaults that were calculated to emerge from the various delinquency categories. The conditional default rate thus calculated individually on the delinquent collateral pool for each RMBS is then used as the starting point for the conditional default rate curve used to project defaults of the presently performing loans.

        In the base case, each transaction's conditional default rate is projected to improve over 12 months to an intermediate conditional default rate (calculated as 20% of its conditional default rate plateau, which was a stress case in prior periods when 15% was used in the base case); that intermediate conditional default rate is held constant for 36 months and then trails off in steps to a final conditional default rate of 5% of the conditional default rate plateau. Under the Company's methodology, defaults projected to occur in the first 24 months represent defaults that can be attributed to loans that are currently delinquent or in foreclosure, while the defaults projected to occur using the projected conditional default rate trend after the first 24 month period represent defaults attributable to borrowers that are currently performing.

        Another important driver of loss projections is loss severity, which is the amount of loss the transaction incurs on a loan after the application of net proceeds from the disposal of the underlying property. Loss severities experienced in first lien transactions have reached historic high levels, and the Company is assuming that these historic high levels generally will continue for another year (in the case of subprime loans, the Company assumes the unprecedented 90% loss severity rate will continue for six months then drop to 80% for six months before following the ramp described below). The Company determines its initial loss severity based on actual recent experience. (Based on these observations, the Company has increased its loss severity assumptions for year-end 2011 as compared to year-end 2010 and 2009 as shown in the table below.) The Company then assumes that loss severities begin returning to levels consistent with underwriting assumptions beginning in December 2012, and in the base case scenario, decline over two years to 40%.

        The following table shows the key assumptions used in the calculation of expected loss to be paid for direct vintage 2004 - 2008 first lien U.S. RMBS.

Key Assumptions in Base Case Expected Loss Estimates
First Lien RMBS

 
  As of
December 31, 2011
  As of
December 31, 2010
  As of
December 31, 2009

Alt-A First Lien

           

Plateau conditional default rate

  2.8% – 41.3%   2.6% – 42.2%   1.5% – 35.7%

Intermediate conditional default rate

  0.6% – 8.3%   0.4% – 6.3%   0.2% – 5.4%

Final conditional default rate

  0.1% – 2.1%   0.1% – 2.1%   0.1% – 1.8%

Initial loss severity

  65%   60%   60%

Initial conditional prepayment rate

  0.0% – 24.4%   0.0% – 36.5%   0.0% – 20.5%

Final conditional prepayment rate

  15%   10%   10%

Option ARM

           

Plateau conditional default rate

  11.7% – 31.5%   11.7% – 32.7%   13.5% – 27.0%

Intermediate conditional default rate

  2.3% – 6.3%   1.8% – 4.9%   2.0% – 4.1%

Final conditional default rate

  0.6% – 1.6%   0.6% – 1.6%   0.7% – 1.4%

Initial loss severity

  65%   60%   60%

Initial conditional prepayment rate

  0.3% – 10.8%   0.0% – 17.7%   0.0% – 3.5%

Final conditional prepayment rate

  15%   10%   10%

Subprime

           

Plateau conditional default rate

  8.6% – 29.9%   9.0% – 34.6%   7.1% – 29.5%

Intermediate conditional default rate

  1.7% – 6.0%   1.3% – 5.2%   1.1% – 4.4%

Final conditional default rate

  0.4% – 1.5%   0.4% – 1.7%   0.4% – 1.5%

Initial loss severity

  90%   80%   70%

Initial conditional prepayment rate

  0.0% – 16.3%   0.0% – 13.5%   0.0% – 12.0%

Final conditional prepayment rate

  15%   10%   10%

        The rate at which the principal amount of loans is prepaid may impact both the amount of losses projected (since that amount is a function of the conditional default rate and the loan balance over time) as well as the amount of excess spread (the amount by which the interest paid by the borrowers on the underlying loan exceeds the amount of interest owed on the insured obligations). The assumption for the conditional prepayment rate follows a similar pattern to that of the conditional default rate. The current level of voluntary prepayments is assumed to continue for the plateau period before gradually increasing over 12 months to the final conditional prepayment rate, which is assumed to be either 10% or 15% depending on the scenario run. For transactions where the initial conditional prepayment rate is higher than the final conditional prepayment rate, the initial conditional prepayment rate is held constant.

        The ultimate performance of the Company's first lien RMBS transactions remains highly uncertain and may be subject to considerable volatility due to the influence of many factors, including the level and timing of loan defaults, changes in housing prices and other variables. The Company will continue to monitor the performance of its RMBS exposures and will adjust the loss projections for those transactions based on actual performance and management's estimates of future performance.

        In estimating expected losses, the Company modeled and probability weighted sensitivities for first lien transactions by varying its assumptions of how fast a recovery is expected to occur. One of the variables used to model sensitivities was how quickly the conditional default rate returned to its modeled equilibrium, which was defined as 5% of the current conditional default rate. The Company also stressed conditional prepayment rates and the speed of recovery of loss severity rates. Due to concerns about the potential for a slower recovery in home prices than it had previously modeled, the Company incorporated a fifth scenario this quarter. As a result the Company adjusted its scenario probability weightings, which had the effect of shifting its base case to a scenario that had been considered a stress scenario in prior periods. The Company probability weighted a total of five scenarios (including its base case) at year-end 2011, one more than it weighted in prior periods. In a somewhat more stressful environment than that of the base case, where the conditional default rate plateau was extended three months (to be 27 months long) before the same more gradual conditional default rate recovery and loss severities were assumed to recover over four rather than two years (and subprime loss severities were assumed to recover only to 60%), expected loss to be paid would increase from current projections by approximately $28.6 million for Alt-A first liens, $66.3 million for Option ARM, $111.3 million for subprime and $0.8 million for prime transactions. In an even more stressful scenario where other loss severities were assumed to recover over eight years (and subprime severities were assumed to recover only to 60% and other assumptions were the same as the other stress scenario), expected loss to be paid would increase from current projections by approximately $73.0 million for Alt-A first liens, $154.0 million for Option ARM, $160.1 million for subprime and $1.9 million for prime transactions. The Company also considered two scenarios where the recovery was faster than in its base case. In a scenario with a somewhat less stressful environment than the base case, where conditional default rate recovery was somewhat less gradual and the initial subprime loss severity rate was assumed to be 80% for 12 months and was assumed to recover to 40% over two years (the same scenario used for the base case at year end 2010), expected loss to be paid would decrease from current projections by approximately $6.4 million for Alt-A first lien, $54.5 million for Option ARM, $24.3 million for subprime and $0.2 million for prime transactions. In an even less stressful scenario where the conditional default rate plateau was three months shorter (21 months, effectively assuming that liquidation rates would improve) and the conditional default rate recovery was more pronounced, expected loss to be paid would decrease from current projections by approximately $27.3 million for Alt-A first lien, $120.0 million for Option ARM, $51.9 million for subprime and $0.6 million for prime transactions.

Breaches of Representations and Warranties

        The Company is pursuing reimbursements for breaches of R&W regarding loan characteristics. Performance of the collateral underlying certain first and second lien securitizations has substantially differed from the Company's original expectations. The Company has employed several loan file diligence firms and law firms as well as devoted internal resources to review the mortgage files surrounding many of the defaulted loans. The Company's success in these efforts resulted in two negotiated agreements, in respect of the Company's R&W claims, including one on April 14, 2011 with Bank of America as described under "Bank of America Agreement" in Note 2, Business Changes, Risks, Uncertainties and Accounting Developments.

        For the RMBS transactions as to which the Company had not settled its claims for breaches of R&W as of December 31, 2011, the Company had performed a detailed review of approximately 16,000 second lien and 18,500 first lien non-performing loan files, representing approximately $1.1 billion in second lien and $5.2 billion in first lien outstanding par of non-performing loans underlying insured transactions. The Company identified approximately 15,000 second lien transaction loan files and approximately 16,700 first lien transaction loan files that breached one or more R&W regarding the characteristics of the loans, such as misrepresentation of income or employment of the borrower, occupancy, undisclosed debt and non-compliance with underwriting guidelines at loan origination. The Company continues to review new files as new loans become non-performing and as new loan files are made available to it. The Company generally obtains the loan files from the originators or servicers (including master servicers). In some cases, the Company requests loan files via the trustee, which then requests the loan files from the originators and/or servicers. On second lien loans, the Company requests loan files for all charged-off loans. On first lien loans, the Company requests loan files for all severely (60+ days) delinquent loans and all liquidated loans. Recently, the Company started requesting loan files for all the loans (both performing and non-performing) in certain deals to limit the number of requests for additional loan files as the transactions season and loans charge-off, become 60+ days delinquent or are liquidated. (The Company takes no repurchase credit for R&W breaches on loans that are expected to continue to perform.) As of December 31, 2011, excluding settled transactions, the Company had reached agreement with R&W providers for the repurchase of $39.1 million of second lien and $70.2 million of first lien mortgage loans. The $39.1 million for second lien loans represents the calculated repurchase price for 475 loans and the $70.2 million for first lien loans represents the calculated repurchase price for 242 loans. The repurchase proceeds are paid to the RMBS transactions and distributed in accordance with the payment priorities set out in the transaction agreements, so the proceeds are not necessarily allocated to the Company on a dollar-for-dollar basis. Much of the repurchase proceeds already agreed to by R&W providers other than Bank of America have already been paid to the RMBS transactions.

        The Company has included in its net expected loss estimates as of December 31, 2011 an estimated benefit from loan repurchases related to breaches of R&W of $1.4 billion, which includes amounts from Bank of America. Where the Company has an agreement with an R&W provider (e.g., the Bank of America Agreement) or, where potential recoveries may be higher due to settlements, that benefit is based on the agreement or probability of a potential agreement. For other transactions, the amount of benefit recorded as a reduction of expected losses was calculated by extrapolating each transaction's breach rate on defaulted loans to projected defaults and applying a percentage of the recoveries the Company believes it will receive. Proceeds projected to be reimbursed to the Company on transactions where the Company has already paid claims are viewed as a recovery on paid losses. For transactions where the Company has not already paid claims, projected recoveries reduce projected loss estimates. In either case, projected recoveries have no effect on the amount of the Company's exposure. These amounts reflect payments made pursuant to the negotiated transaction agreements and not payments made pursuant to legal settlements. See "—Recovery Litigation" below for a description of the related legal proceedings the Company has commenced.

        The Company did not incorporate any gain contingencies or damages paid from potential litigation in its estimated repurchases. The amount the Company will ultimately recover related to contractual R&W is uncertain and subject to a number of factors including the counterparty's ability to pay, the number and loss amount of loans determined to have breached R&W and, potentially, negotiated settlements or litigation recoveries. As such, the Company's estimate of recoveries is uncertain and actual amounts realized may differ significantly from these estimates. In arriving at the expected recovery from breaches of R&W, the Company considered the creditworthiness of the provider of the R&W, the number of breaches found on defaulted loans, the success rate in resolving these breaches across those transactions where material repurchases have been made and the potential amount of time until the recovery is realized.

        The calculation of expected recovery from breaches of R&W involved a variety of scenarios which ranged from the Company recovering substantially all of the losses it incurred due to violations of R&W to the Company realizing limited recoveries. The Company did not include any recoveries related to breaches of R&W in amounts greater than the losses it expected to pay under any given cash flow scenario. These scenarios were probability weighted in order to determine the recovery incorporated into the Company's estimate of expected losses. This approach was used for both loans that had already defaulted and those assumed to default in the future. In all cases, recoveries were limited to amounts paid or expected to be paid by the Company. In circumstances where potential recoveries may be higher due to settlements, the Company may adjust its recovery assumption for R&W.

Balance Sheet Classification of R&W Benefit, Net of Reinsurance

 
  As of December 31, 2011   As of December 31, 2010  
 
  For all
Financial
Guaranty
Insurance
Contracts
  Effect of
Consolidating
FG VIEs
  Reported on
Balance Sheet
  For all
Financial
Guaranty
Insurance
Contracts
  Effect of
Consolidating
FG VIEs
  Reported on
Balance Sheet
 
 
  (dollars in millions)
 

Salvage and subrogation recoverable

  $ 401.8   $ (197.3 ) $ 204.5   $ 866.2   $ (52.9 ) $ 813.3  

Loss and LAE reserve

    857.5     (74.6 )   782.9     490.6     (85.8 )   404.8  

Unearned premium reserve

    175.5     (49.9 )   125.6     243.7     (22.5 )   221.2  
                           

Total

  $ 1,434.8   $ (321.8 ) $ 1,113.0   $ 1,600.5   $ (161.2 ) $ 1,439.3  
                           

        The following table represents the Company's total estimated R&W recoveries netted in expected loss to be paid, from defective mortgage loans included in certain first and second lien U.S. RMBS loan securitizations that it insures.

Roll Forward of Estimated Benefit from Recoveries from Representation and Warranty Breaches,
Net of Reinsurance

 
  Future Net
R&W Benefit at
December 31, 2010
  R&W Development
and Accretion of
Discount
During 2011
  R&W Recovered
During
2011(1)
  Future Net
R&W Benefit at
December 31, 2011(2)
 
 
  (in millions)
 

Prime first lien

  $ 1.1   $ 1.9   $   $ 3.0  

Alt-A first lien

    81.0     122.8     (1.1 )   202.7  

Option ARM

    309.3     496.1     (91.5 )   713.9  

Subprime

    26.8     74.7         101.5  

Closed end second lien

    178.2     54.6     (9.0 )   223.8  

HELOC

    1,004.1     139.3     (953.5 )   189.9  
                   

Total

  $ 1,600.5   $ 889.4   $ (1,055.1 ) $ 1,434.8  
                   

 

 
  Future Net
R&W Benefit at
December 31, 2009
  R&W Development
and Accretion of
Discount
During 2010
  R&W Recovered
During
2010(1)
  Future Net
R&W Benefit at
December 31, 2010
 
 
  (in millions)
 

Prime first lien

  $   $ 1.1   $   $ 1.1  

Alt-A first lien

    64.2     16.8         81.0  

Option ARM

    203.7     166.6     (61.0 )   309.3  

Subprime

        26.8         26.8  

Closed end second lien

    76.5     101.7         178.2  

HELOC

    828.7     303.5     (128.1 )   1,004.1  
                   

Total

  $ 1,173.1   $ 616.5   $ (189.1 ) $ 1,600.5  
                   

(1)
Gross amounts recovered are $1,191.2 million and $217.6 million for year ended December 31, 2011 and 2010, respectively.

(2)
Includes R&W benefit of $552.2 million attributable to transactions covered by the Bank of America Agreement.

Financial Guaranty Insurance U.S. RMBS Risks with R&W Benefit

 
  Number of Risks(1) as of December 31,   Debt Service as of December 31,  
 
  2011   2010   2011   2010  
 
  (dollars in millions)
 

Prime first lien

    1     1   $ 52.3   $ 57.1  

Alt-A first lien

    22     17     1,781.1     1,882.8  

Option ARM

    12     10     1,621.4     1,909.8  

Subprime

    5     1     1,054.0     228.7  

Closed-end second lien

    4     4     361.4     444.9  

HELOC

    15     13     2,978.5     2,969.8  
                   

Total

    59     46   $ 7,848.7   $ 7,493.1  
                   

(1)
A risk represents the aggregate of the financial guaranty policies that share the same revenue source for purposes of making debt service payments.

        The following table provides a breakdown of the development and accretion amount in the roll forward of estimated recoveries associated with alleged breaches of R&W:

 
  Year Ended
December 31,
 
 
  2011   2010  
 
  (in millions)
 

Inclusion of new deals with breaches of R&W during period

  $ 108.2   $ 170.5  

Change in recovery assumptions as the result of additional file review and recovery success

    218.3     253.5  

Estimated increase (decrease) in defaults that will result in additional (lower) breaches

    (77.1 )   188.1  

Results of settlements

    622.0      

Accretion of discount on balance

    18.0     4.4  
           

Total

  $ 889.4   $ 616.5  
           

        The R&W development during 2011 resulted in large part from the Bank of America Agreement executed on April 14, 2011 related to the Company's R&W claims and described under "Bank of America Agreement" in Note 2, Business Changes, Risks, Uncertainties and Accounting Developments. The benefit of the Bank of America Agreement is included in the R&W credit for the transactions directly affected by the agreement. In addition, the Bank of America Agreement caused the Company to increase the probability of successful pursuit of R&W claims against other providers where the Company believed those providers were breaching at a similar rate. The remainder of the development during 2011 primarily relates to changes in recovery assumptions due to the inclusion of the terms of the Bank of America Agreement as a potential scenario for other transactions and to reflect advanced discussions with other R&W providers.

        The R&W development during 2010 primarily resulted from an increase in loan file reviews, increased success rates in putting back loans, and increased projected defaults on loans with breaches of R&W. The Company has reflected eight additional transactions during 2010 which resulted in approximately $170.5 million of the development. Changes in assumptions generally relate to an increase in loan file reviews and increased success rates in putting back loans.

        The Company assumes that recoveries on HELOC and closed-end second lien loans that were not subject to the Bank of America Agreement will occur in two to four years from the balance sheet date depending on the scenarios and that recoveries on Alt-A first lien, Option ARM and Subprime loans will occur as claims are paid over the life of the transactions. Recoveries on second lien transactions subject to the Bank of America Agreement will be paid in full by March 31, 2012.

        As of December 31, 2011, cumulative collateral losses on the 20 first lien RMBS transactions executed as financial guaranties and subject to the Bank of America Agreement were approximately $1.9 billion. The Company estimates that cumulative projected collateral losses for these first lien transactions will be $4.8 billion, which will result in estimated gross expected losses to the Company of $652.5 million before considering R&W recoveries from Bank of America, and $130.5 million after considering such R&W recoveries, all on a discounted basis. As of December 31, 2011, the Company had been reimbursed $58.8 million and had invoiced for an additional $6.7 million in claims paid in December with respect to the covered first lien transactions under the Bank of America Agreement.

Student Loan Transactions

        The Company has insured or reinsured $3.0 billion net par of student loan securitizations, $1.5 billion issued by private issuers and classified as asset-backed and $1.5 billion issued by public authorities and classified as public finance. Of these amounts, $237.6 million and $614.4 million, respectively, are rated BIG. The Company is projecting approximately $74.6 million of net expected loss to be paid in these portfolios. In general the losses are due to: (i) the poor credit performance of private student loan collateral; (ii) high interest rates on auction rate securities with respect to which the auctions have failed or (iii) high interest rates on variable rate demand obligations ("VRDO") that have been put to the liquidity provider by the holder and are therefore bearing high "bank bond" interest rates. The largest of these losses was approximately $27.5 million and related to a transaction backed by a pool of private student loans ceded to AG Re by another monoline insurer. The guaranteed bonds were issued as auction rate securities that now bear a high rate of interest due to the downgrade of the primary insurer's financial strength rating. Further, the underlying loan collateral has performed below expectations. The decrease of approximately $3.3 million in net expected loss during 2011 is due to favorable commutations achieved by the primary insurer on some transactions partially offset by deterioration in other transactions.

Trust Preferred Securities Collateralized Debt Obligations

        The Company has insured or reinsured $1.8 billion of net par of collateralized debt obligations ("CDOs") backed by TruPS and similar debt instruments, or "TruPS CDOs." Of that amount, $940.6 million is rated BIG. The underlying collateral in the TruPS CDOs consists of subordinated debt instruments such as TruPS issued by bank holding companies and similar instruments issued by insurance companies, real estate investment trusts ("REITs") and other real estate related issuers.

        Of the $1.8 billion, $835.1 million was converted in 2011 from CDS form to financial guaranty form. Included in the amount converted are most of the TruPS CDOs currently rated BIG, including two TruPS CDOs for which the Company is projecting losses. The Company projects losses for TruPS CDOs by projecting the performance of the asset pools across several scenarios (which it weights) and applying the CDO structures to the resulting cash flows. For the year ended December 31, 2011, the Company has projected expected losses to be paid for TruPS CDOs that are accounted for as financial guaranty insurance of $13.2 million. The increase of approximately $13.8 million in net expected loss during 2011 was driven primarily by the conversion of two TruPS CDOs with expected losses to financial guaranty form in June 2011, and a reduction in the risk free rate used to discount loss projections (which was partially offset by decreased LIBOR rates on floating rate notes).

"XXX" Life Insurance Transactions

        The Company's $2.3 billion net par of XXX life insurance transactions include, as of December 31, 2011, $882.5 million rated BIG. The BIG "XXX" life insurance reserve securitizations are based on discrete blocks of individual life insurance business. In each such transaction the monies raised by the sale of the bonds insured by the Company were used to capitalize a special purpose vehicle that provides reinsurance to a life insurer or reinsurer. The monies are invested at inception in accounts managed by third-party investment managers. In order for the Company to incur an ultimate net loss on these transactions, adverse experience on the underlying block of life insurance policies and/or credit losses in the investment portfolio would need to exceed the level of credit enhancement built into the transaction structures. In particular, such credit losses in the investment portfolio could be realized in the event that circumstances arise resulting in the early liquidation of assets at a time when their market value is less than their intrinsic value.

        The BIG "XXX" life insurance transactions consist of Class A-2 Floating Rate Notes issued by Ballantyne Re p.l.c and Series A-1 Floating Rate Notes issued by Orkney Re II p.l.c ("Orkney Re II"). The Ballantyne Re and Orkney Re II XXX transactions had material amounts of their assets invested in U.S. RMBS transactions. Based on its analysis of the information currently available, including estimates of future investment performance provided by the investment manager, and projected credit impairments on the invested assets and performance of the blocks of life insurance business at December 31, 2011, the Company's projected net expected loss to be paid is $129.5 million. The increase of approximately $55.7 million during 2011 is due primarily to deterioration in RMBS investments and a reduction of the risk free rate used to discount loss projections.

Other Notable Loss or Claim Transactions

        The preceding pages describe the asset classes in the financial guaranty portfolio that encompass most of the Company's projected losses. The Company also projects losses on, or is monitoring particularly closely, a number of other transactions, the most significant of which are described in the following paragraphs.

        As of December 31, 2011, the Company had exposure to sovereign debt of Greece through financial guarantees of €200.0 million of debt (€165.1 million on a net basis) due in 2037 with a 4.5% fixed coupon and €113.9 million of debt (€52.6 million on a net basis) due in 2057 with a 2.085% inflation-linked coupon. The Hellenic Republic of Greece, as obligor, has been paying interest on such notes on a timely basis. On February 24, 2012, Greece announced the terms of exchange offers and consent solicitations that request the voluntary participation by holders of certain Greek bonds in an exchange that would result in the reduction of 53.5% of the notional amount of such bonds, and request the consent of holders to amendments of the bonds that could be used to effectively impose the same terms on holders that do not voluntarily participate in the exchange. On February 23, 2012, the Greek Parliament enacted legislation that introduces collective action clauses into eligible Greek law governed bonds to permit the terms of such bonds to be amended with the consent of less than all the holders of those bonds. The bonds insured under the financial guarantees were included in the list of Greek bonds covered by the exchange offer and/or consent solicitation. The bonds due in 2037 were issued under Greek law and thus are susceptible to a coercive exchange pursuant to the new legislation that might trigger a claim under the Company's policy. The bonds due in 2057 were issued under English law and already contain a collective action clause that could entail similar results. Greece has stated that its use of collective action clauses will depend on the level of participation in the exchange offer and/or consent solicitation. The Company is currently evaluating the exchange offer and consent solicitation. If Greece does not utilize the collective action clauses, the Company believes the proposal should not trigger claim payments under its financial guarantees. The Company has considered a variety of scenarios in its loss reserve estimation process including the nature of the proposed exchange and the value of the consideration it would receive if it were to participate in the exchange, either voluntarily or involuntarily. The expected loss to be paid was $64.7 million gross of reinsurance and $42.6 million net of reinsurance as of December 31, 2011.

        The Company has net exposure to Jefferson County, Alabama of $731.8 million. On November 9, 2011, Jefferson County filed for bankruptcy under Chapter 9 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Northern District of Alabama (Southern Division).

  • Most of the Company's exposure relates to $495.8 million of warrants issued by Jefferson County in respect of its sewer system, of which $218.7 million is direct and $277.1 million is assumed. Jefferson County's sewer revenue warrants are secured by a pledge of the net revenues of the sewer system, and the bankruptcy court has affirmed that the net revenues constitute "special revenue" under Chapter 9. Therefore, the net revenues of the sewer system are not subject to an automatic stay during the pendency of the County's bankruptcy case. However, whether sufficient net revenues will be made available for the payment of regularly scheduled debt service will be a function of the bankruptcy court's determination of "necessary operating expenses" under the bankruptcy code and the valuation of the sewer revenue stream which the bankruptcy court ultimately approves. The Company has projected expected loss to be paid of $26.7 million as of December 31, 2011 and $33.0 million as of December 31, 2010 on the sewer revenue warrants, which is an estimate based on a number of probability-weighted scenarios. The decrease of approximately $6.3 million in expected loss during 2011 was due primarily to a change in the loss scenarios and weightings used by the Company in light of the legal developments described above as well as its view of the possibility of a restoration of a consensual settlement despite the bankruptcy filing and its view of potential level of contribution of the various parties to any such consensual settlement.

    The Company's remaining net exposure of $236.0 million relates to bonds issued by Jefferson County that are secured by, or payable from, certain revenues, taxes or lease payments that may have the benefit of a statutory lien or a lien on "special revenues" or other collateral. Of this, $170.9 million is direct and $65.1 million is assumed. The Company projects less than $1 million of expected loss to be paid as of December 31, 2011 and 2010 on these bonds.

        The Company expects that bondholder rights will be enforced. However, due to the early stage of the bankruptcy proceeding, and the circumstances surrounding Jefferson County's debt, the nature of the action is uncertain. The Company will continue to analyze developments in the matter closely.

        The Company has projected expected loss to be paid of $21.9 million as of December 31, 2011 and $1.1 million as of December 31, 2010 on a transaction backed by revenues generated by telephone directory "yellow pages" (both print and digital) in various jurisdictions with a net par of $110.7 million and guaranteed by Ambac Assurance Corporation ("Ambac"). This estimate is based primarily on the Company's view of how quickly "yellow pages" revenues are likely to decline in the future. The increase of approximately $20.8 million in expected loss in 2011 is due primarily to deterioration in performance offset in part by the Company's purchase of some of the insured debt at a discount to par.

        The Company insures a total of $339.6 million net par of securities backed by manufactured housing loans, a total of $228.6 million rated BIG. The Company has projected expected loss to be paid of $18.4 million as of December 31, 2011 and $14.3 million as of December 31, 2010 on two direct transactions from 2000-2001 with an aggregate net par of $144.8 million and $5.4 million expected losses to be paid as of December 31, 2011 on 11 assumed transactions from 1998-2001 with an aggregate net par of $83.7 million.

        The Company has $168.6 million of net par exposure to The City of Harrisburg, Pennsylvania, of which $95.3 million is BIG. The Company has paid $6.9 million in net claims to date, and expects a full recovery.

Recovery Litigation

RMBS Transactions

        As of the date of this filing, AGM and AGC have filed lawsuits with regard to six second lien U.S. RMBS transactions insured by them, alleging breaches of R&W both in respect of the underlying loans in the transactions and the accuracy of the information provided to AGM and AGC, and failure to cure or repurchase defective loans identified by AGM and AGC to such persons. These transactions consist of the ACE Securities Corp. Home Equity Loan Trust, Series 2006-GP1, the ACE Securities Corp. Home Equity Loan Trust, Series 2007-SL2 and the ACE Securities Corp. Home Equity Loan Trust, Series 2007-SL3 transactions (in each of which AGC or AGM has sued Deutsche Bank AG affiliates DB Structured Products, Inc. and ACE Securities Corp. in the Supreme Court of the State of New York), the SACO I Trust 2005-GP1 transaction (in which AGC has sued JPMorgan Chase & Co.'s affiliate EMC Mortgage Corporation in the United States District Court for the Southern District of New York) and the Flagstar Home Equity Loan Trust, Series 2005-1 and Series 2006-2 transactions (in which AGM has sued Flagstar Bank, FSB, Flagstar Capital Markets Corporation and Flagstar ABS, LLC in the United States District Court for the Southern District of New York). In these lawsuits, which AGM and AGC brought between June 2010 and April 2011, AGM and AGC seek damages, including indemnity or reimbursement for losses.

        In September 2010, AGM also filed a lawsuit in the Superior court of the State of California, County of Los Angeles, against UBS Securities LLC and Deutsche Bank Securities, Inc., as underwriters, as well as several named and unnamed control persons of IndyMac Bank, FSB and related IndyMac entities, with regard to two U.S. RMBS transactions that AGM had insured, seeking damages for alleged violations of state securities laws and breach of contract, among other claims. One of these transactions (referred to as IndyMac Home Equity Loan Trust 2007-H1) is a second lien transaction and the other (referred to as IndyMac IMSC Mortgage Loan Trust 2007-HOA-1) is a first lien transaction.

        In October 2011, AGM and AGC brought an action in the Supreme Court of the State of New York against DLJ Mortgage Capital, Inc. ("DLJ") and Credit Suisse Securities (USA) LLC ("Credit Suisse") with regard to six first lien U.S. RMBS transactions insured by them: CSAB Mortgage-Backed Pass Through Certificates, Series 2006-2; CSAB Mortgage-Backed Pass Through Certificates, Series 2006-3; CSAB Mortgage-Backed Pass Through Certificates, Series 2006-4; CMSC Mortgage-Backed Pass Through Certificates, Series 2007-3; CSAB Mortgage-Backed Pass Through Certificates, Series 2007-1; and TBW Mortgage-Backed Pass Through Certificates, Series 2007-2. The complaint alleges breaches of R&W by DLJ in respect of the underlying loans in the transactions, breaches of contract by DLJ and Credit Suisse in procuring falsely inflated shadow ratings (a condition to the issuance by AGC and AGM of its policies) by providing false and misleading information to the rating agencies, and failure by DLJ to cure or repurchase defective loans identified by AGM and AGC.

        In February 2012, AGM filed a complaint in the Supreme Court of the State of New York against UBS Real Estate Securities Inc. with respect to three first lien U.S. RMBS transactions it had insured: MASTR Adjustable Rate Mortgages Trust 2006-OA2; MASTR Adjustable Rate Mortgages Trust 2007-1; and MASTR Adjustable Rate Mortgages Trust 2007-3. The complaint alleges breaches of R&W by UBS Real Estate in respect of the underlying loans in the transactions, breaches of UBS Real Estate's repurchase obligations with respect to the defective loans identified by AGM, and breaches of contract by UBS Real Estate in procuring falsely inflated shadow ratings (a condition to the issuance by AGM of its policies) by providing false and misleading information to the ratings agencies concerning the underlying loans in the transactions.

"XXX" Life Insurance Transactions

        In December 2008, Assured Guaranty (UK) Ltd. ("AGUK") filed an action against J.P. Morgan Investment Management Inc. ("JPMIM"), the investment manager in the Orkney Re II transaction, in the Supreme Court of the State of New York alleging that JPMIM engaged in breaches of fiduciary duty, gross negligence and breaches of contract based upon its handling of the investments of Orkney Re II. In January 2010, the court ruled against AGUK on a motion to dismiss filed by JPMIM, dismissing AGUK's claims for breaches of fiduciary duty and gross negligence on the ground that such claims are preempted by the Martin Act, which is New York's blue sky law, such that only the New York Attorney General has the authority to sue JPMIM. AGUK appealed and, in November 2010, the Appellate Division (First Department) issued a ruling, ordering the court's order to be modified to reinstate AGUK's claims for breach of fiduciary duty and gross negligence and certain of its claims for breach of contract, in each case for claims accruing on or after June 26, 2007. In December 2011, after an appeal by JPMIM, the New York Court of Appeals ruled that AG(UK) may pursue its common-law tort claims for breach of fiduciary duty and gross negligence against JPMIM. This decision, together with the Appellate Division decision in favor of AG(UK) and a recent ruling by Justice Kapnick in the trial court, make clear that all of AGUK's claims for breaches of fiduciary duty, gross negligence and contract are reinstated in full. Separately, at the trial court level, a preliminary conference order related to discovery was entered in February 2011 and discovery is ongoing.

Public Finance Transactions

        In June 2010, AGM sued JPMorgan Chase Bank, N.A. and JPMorgan Securities, Inc. (together, "JPMorgan"), the underwriter of debt issued by Jefferson County, in the Supreme Court of the State of New York alleging that JPMorgan induced AGM to issue its insurance policies in respect of such debt through material and fraudulent misrepresentations and omissions, including concealing that it had secured its position as underwriter and swap provider through bribes to Jefferson County commissioners and others. In December 2010, the court denied JPMorgan's motion to dismiss. AGM has filed a motion with the Jefferson County bankruptcy court to confirm that continued prosecution of the lawsuit against JPMorgan will not violate the automatic stay applicable to Jefferson County notwithstanding JPMorgan's interpleading of Jefferson County into the lawsuit. AGM is continuing its risk remediation efforts for this exposure.

        In September 2010, AGM, together with TD Bank, National Association and Manufacturers and Traders Trust Company, as trustees, filed a complaint in the Court of Common Pleas of Dauphin County, Pennsylvania against The Harrisburg Authority, The City of Harrisburg, Pennsylvania, and the Treasurer of the City in connection with certain Resource Recovery Facility bonds and notes issued by The Harrisburg Authority, alleging, among other claims, breach of contract by both The Harrisburg Authority and The City of Harrisburg, and seeking remedies including an order of mandamus compelling the City to satisfy its obligations on the defaulted bonds and notes and the appointment of a receiver for The Harrisburg Authority. Acting on its own, the City Council of Harrisburg filed a purported bankruptcy petition for the City on October 11, 2011. On November 23, 2011, the bankruptcy judge dismissed the bankruptcy petition filed by the City Council and subsequently rejected a late-filed appeal by the City Council. The dismissal of the appeal has been appealed by the City Council. As a result of the dismissal, however, the actions brought by AGM and the trustees against The City of Harrisburg and The Harrisburg Authority are no longer stayed. A receiver for The City of Harrisburg (the "City Receiver") was appointed by the Commonwealth Court of Pennsylvania on December 2, 2011. The City Receiver filed a motion to intervene in the mandamus action and action for the appointment of a receiver for the resource recovery facility. The parties have submitted briefs as to whether the statute authorizing the appointment of the receiver preempts the mandamus and receiver remedies sought by AGM and the trustees.

Net Loss Summary

        The following table provides information on loss and LAE reserves net of reinsurance and salvage and subrogation recoverable on the consolidated balance sheets.


Loss and LAE Reserve (Recovery)
Net of Reinsurance and Salvage and Subrogation Recoverable

 
  As of December 31, 2011   As of December 31, 2010  
 
  Loss and
LAE
Reserve(1)
  Salvage and
Subrogation
Recoverable(2)
  Net   Loss and
LAE
Reserve(1)
  Salvage and
Subrogation
Recoverable(2)
  Net  
 
  (in millions)
 

U.S. RMBS:

                                     

First lien:

                                     

Prime first lien

  $ 1.2   $   $ 1.2   $ 1.2   $   $ 1.2  

Alt-A first lien

    69.8     55.4     14.4     39.2     2.6     36.6  

Option ARM

    141.7     140.3     1.4     223.3     63.0     160.3  

Subprime

    51.4     0.3     51.1     108.3     0.1     108.2  
                           

Total first lien

    264.1     196.0     68.1     372.0     65.7     306.3  

Second lien:

                                     

Closed-end second lien

    11.2     136.2     (125.0 )   7.7     50.3     (42.6 )

HELOC

    61.1     177.2     (116.1 )   7.1     843.4     (836.3 )
                           

Total second lien

    72.3     313.4     (241.1 )   14.8     893.7     (878.9 )
                           

Total U.S. RMBS

    336.4     509.4     (173.0 )   386.8     959.4     (572.6 )

Other structured finance

    233.0     5.9     227.1     131.1     1.4     129.7  

Public finance

    100.0     69.9     30.1     81.6     34.4     47.2  
                           

Total financial guaranty

    669.4     585.2     84.2     599.5     995.2     (395.7 )

Other

    1.9         1.9     2.1         2.1  
                           

Subtotal

    671.3     585.2     86.1     601.6     995.2     (393.6 )

Effect of consolidating FG VIEs

    (61.6 )   (258.1 )   196.5     (49.5 )   (92.2 )   42.7  
                           

Total

  $ 609.7   $ 327.1   $ 282.6   $ 552.1   $ 903.0   $ (350.9 )
                           

(1)
The December 31, 2011 loss and LAE consists of $679.0 million loss and LAE reserve net of $69.3 million of reinsurance recoverable on unpaid losses. The December 31, 2010 loss and LAE consists of $574.4 million loss and LAE reserve net of $22.3 million of reinsurance recoverable on unpaid losses.

(2)
The December 31, 2011 salvage and subrogation recoverable consists of $367.7 million of salvage and subrogation recoverable net of $40.6 million in ceded salvage and subrogation recorded in "reinsurance balances payable." The December 31, 2010 salvage and subrogation recoverable consists of $1,032.4 million of salvage and subrogation recoverable net of $129.4 million in ceded salvage and subrogation recorded in "reinsurance balances payable."

        The following table presents the loss and LAE recorded in the consolidated statements of operations by sector for financial guaranty insurance contracts. Amounts presented are net of reinsurance and net of the benefit for recoveries from breaches of R&W.


Loss and LAE Reported
on the Consolidated Statements of Operations

 
  Year Ended December 31,  
 
  2011   2010   2009  
 
  (in millions)
 

Financial Guaranty:

                   

U.S. RMBS:

                   

First lien:

                   

Prime first lien

  $ 0.1   $ 0.9   $  

Alt-A first lien

    52.6     37.4     21.1  

Option ARM

    202.6     272.4     43.0  

Subprime

    (39.1 )   85.9     13.1  
               

Total first lien

    216.2     396.6     77.2  

Second lien:

                   

Closed end second lien

    1.0     5.2     47.8  

HELOC

    171.4     (20.4 )   154.1  
               

Total second lien

    172.4     (15.2 )   201.9  
               

Total U.S. RMBS

    388.6     381.4     279.1  

Other structured finance

    117.6     63.6     31.4  

Public finance

    48.4     32.9     71.2  
               

Total financial guaranty

    554.6     477.9     381.7  

Other

        0.2     12.1  
               

Subtotal

    554.6     478.1     393.8  

Effect of consolidating FG VIEs

    (92.7 )   (65.9 )    
               

Total loss and LAE

  $ 461.9   $ 412.2   $ 393.8  
               

        The following table provides information on financial guaranty insurance and reinsurance contracts categorized as BIG.

Financial Guaranty Insurance BIG Transaction Loss Summary
December 31, 2011

 
  BIG Categories  
 
  BIG 1   BIG 2   BIG 3    
   
   
 
 
  Gross   Ceded   Gross   Ceded   Gross   Ceded   Total
BIG, Net
  Effect of
Consolidating
VIEs
  Total  
 
  (dollars in millions)
 

Number of risks(1)

    171     (68 )   71     (26 )   126     (48 )   368         368  

Remaining weighted-average contract period (in years)

    9.8     9.2     12.2     18.9     9.1     6.4     10.1         10.1  

Net outstanding exposure:

                                                       

Principal

  $ 10,005.0   $ (1,382.8 ) $ 4,518.7   $ (304.3 ) $ 7,948.8   $ (632.0 ) $ 20,153.4   $   $ 20,153.4  

Interest

    4,378.5     (486.8 )   3,104.9     (411.9 )   2,489.2     (170.1 )   8,903.8         8,903.8  
                                       

Total(2)

  $ 14,383.5   $ (1,869.6 ) $ 7,623.6   $ (716.2 ) $ 10,438.0   $ (802.1 ) $ 29,057.2   $   $ 29,057.2  
                                       

Expected cash outflows (inflows)

  $ 1,730.6   $ (658.8 ) $ 1,833.3   $ (120.3 ) $ 2,423.0   $ (133.4 ) $ 5,074.4   $ (998.4 ) $ 4,076.0  

Potential recoveries(3)

    (1,798.0 )   664.0     (1,079.3 )   38.5     (2,040.5 )   100.3     (4,115.0 )   1,059.8     (3,055.2 )
                                       

Subtotal

    (67.4 )   5.2     754.0     (81.8 )   382.5     (33.1 )   959.4     61.4     1,020.8  

Discount

    15.7     (4.6 )   (240.6 )   31.6     (125.1 )   1.6     (321.4 )   45.3     (276.1 )
                                       

Present value of expected cash flows

  $ (51.7 ) $ 0.6   $ 513.4   $ (50.2 ) $ 257.4   $ (31.5 ) $ 638.0   $ 106.7   $ 744.7  
                                       

Deferred premium revenue

  $ 260.8   $ (69.1 ) $ 280.9   $ (12.3 ) $ 991.8   $ (126.6 ) $ 1,325.5   $ (390.7 ) $ 934.8  

Reserves (salvage)(4)

  $ (96.6 ) $ 6.9   $ 319.5   $ (41.9 ) $ (110.2 ) $ 6.5   $ 84.2   $ 196.5   $ 280.7  


Financial Guaranty Insurance BIG Transaction Loss Summary
December 31, 2010

 
  BIG Categories  
 
  BIG 1   BIG 2   BIG 3    
   
   
 
 
  Total
BIG, Net
  Effect of
Consolidating
VIEs
   
 
 
  Gross   Ceded   Gross   Ceded   Gross   Ceded   Total  
 
  (dollars in millions)
 

Number of risks(1)

    119     (45 )   98     (42 )   115     (42 )   332         332  

Remaining weighted-average contract period (in years)

    11.7     16.0     8.4     7.9     8.8     6.0     9.6         9.6  

Net outstanding exposure:

                                                       

Principal

  $ 6,173.0   $ (723.3 ) $ 5,899.3   $ (182.8 ) $ 7,954.5   $ (673.6 ) $ 18,447.1   $   $ 18,447.1  

Interest

    3,599.5     (580.4 )   2,601.6     (70.9 )   2,490.7     (186.3 )   7,854.2         7,854.2  
                                       

Total(2)

  $ 9,772.5   $ (1,303.7 ) $ 8,500.9   $ (253.7 ) $ 10,445.2   $ (859.9 ) $ 26,301.3   $   $ 26,301.3  
                                       

Expected cash outflows (inflows)

  $ 303.9   $ (20.2 ) $ 2,036.6   $ (68.9 ) $ 2,256.6   $ (133.2 ) $ 4,374.8   $ (384.2 ) $ 3,990.6  

Potential recoveries(3)

    (375.2 )   37.4     (533.0 )   16.6     (2,543.6 )   197.5     (3,200.3 )   354.8     (2,845.5 )
                                       

Subtotal

    (71.3 )   17.2     1,503.6     (52.3 )   (287.0 )   64.3     1,174.5     (29.4 )   1,145.1  

Discount

    (21.0 )   (5.5 )   (613.2 )   21.5     (139.6 )   (7.9 )   (765.7 )   (19.8 )   (785.5 )
                                       

Present value of expected cash flows

  $ (92.3 ) $ 11.7   $ 890.4   $ (30.8 ) $ (426.6 ) $ 56.4   $ 408.8   $ (49.2 ) $ 359.6  
                                       

Deferred premium revenue

  $ 169.9   $ (16.9 ) $ 572.4   $ (30.3 ) $ 995.9   $ (120.7 ) $ 1,570.3   $ (263.9 ) $ 1,306.4  

Reserves (salvage)(4)

  $ (112.9 ) $ 12.4   $ 424.4   $ (9.5 ) $ (815.9 ) $ 105.8   $ (395.7 ) $ 42.7   $ (353.0 )

(1)
A risk represents the aggregate of the financial guaranty policies that share the same revenue source for purposes of making debt service payments. The ceded number of risks represents the number of risks for which the Company ceded a portion of its exposure.

(2)
Includes BIG amounts related to FG VIEs which are not eliminated.

(3)
Includes estimated future recoveries for breaches of R&W as well as excess spread, and draws on HELOCs.

(4)
See table "Components of net reserves (salvage)."

        The following table reconciles the loss and LAE reserve and salvage and subrogation components on the consolidated balance sheet to the financial guaranty net reserves (salvage) in the financial guaranty BIG transaction loss summary tables above.


Components of Net Reserves (Salvage)

 
  As of December 31,  
 
  2011   2010  
 
  (in millions)
 

Loss and LAE reserve

  $ 679.0   $ 574.4  

Reinsurance recoverable on unpaid losses

    (69.3 )   (22.3 )

Salvage and subrogation recoverable

    (367.7 )   (1,032.4 )

Salvage and subrogation payable(1)

    40.6     129.4  
           

Total

    282.6     (350.9 )

Less: other

    1.9     2.1  
           

Financial guaranty net reserves (salvage)

  $ 280.7   $ (353.0 )
           

(1)
Recorded as a component of reinsurance balances payable.

Ratings Impact on Financial Guaranty Business

        A downgrade of one of the Company's insurance subsidiaries may result in increased claims under financial guaranties issued by the Company. In particular, with respect to VRDO for which a bank has agreed to provide a liquidity facility, a downgrade of the insurer may provide the bank with the right to give notice to bondholders that the bank will terminate the liquidity facility, causing the bondholders to tender their bonds to the bank. Bonds held by the bank accrue interest at a "bank bond rate" that is higher than the rate otherwise borne by the bond (typically the prime rate plus 2.00% – 3.00%, often with a floor of 7%, and capped at the maximum legal limit). In the event that the bank holds such bonds for longer than a specified period of time, usually 90-180 days, the bank has the right to demand accelerated repayment of bond principal, usually through payment of equal installments over a period of not less than five years. In the event that a municipal obligor is unable to pay interest accruing at the bank bond rate or to pay principal during the shortened amortization period, a claim could be submitted to the insurer under its financial guaranty policy. As of December 31, 2011, the Company has insured approximately $1.1 billion of par of VRDO issued by municipal obligors rated BBB- or lower pursuant to the Company's internal rating. For a number of such obligations, a downgrade of the insurer below A+, in the case of S&P, or below A1, in the case of Moody's, triggers the ability of the bank to notify bondholders of the termination of the liquidity facility and to demand accelerated repayment of bond principal over a period of five to ten years. The specific terms relating to the rating levels that trigger the bank's termination right, and whether it is triggered by a downgrade by one rating agency or a downgrade by all rating agencies then rating the insurer, vary depending on the transaction. See also Note 15, Long-Term Debt and Credit Facilities, for a discussion of the impact of a downgrade in the financial strength rating on the Company's insured leveraged lease transactions.