Environmental Liability Buyout is when a third party contractually assumes ownership of the known environmental conditions in a given property. In exchange for a cash payment to a third party, the third party will assume all corrective action obligations and liability associated with known terms. The host will then take all necessary corrective action, negotiate with the Environmental Protection Agency (EPA) or other regulators, and provide full compensation to the “seller”. From a procedural point of view, the contractual assumption usually requires the receiving party to purchase an environmental insurance policy to support its indemnification. Thus, the assigning company will be protected in case of refusal of the guarantor. To protect funds transferred to a third party, the terms of the insurance contract usually require the use of a limited risk insurance policy.
Insurance is a contractual relationship that arises when one party (the insurer), for a fee (premium), agrees to compensate the other party (the insured) for losses caused to a certain subject (risk) caused by certain unforeseen circumstances (hazards or dangers). The term ‘guarantee’, commonly used in England, is considered synonymous with ‘insurance’.
The 10/10 Rule is a matter of analyzing and demonstrating the transfer of risk as a precondition for the use of reinsurance accounting, which was codified in the early 1990s with the adoption of Financial Accounting Standard (FAS) 113 (and its statutory counterpart, SSAP 62). FAS 113 itself was a response to alleged abuses and set the standard for testing whether something should be called an insurance contract. FAS 113 required that the transfer of risk be demonstrated by comparing the present value of the cash flows associated with the contract and, in particular, by exceeding certain thresholds of “significance” of risk. The thresholds, often referred to as the 9a and 9b tests, are: 9a. The reinsurer assumes significant insurance risk under the reinsured parts of the underlying insurance contracts. 9b. It is possible that the reinsurer could suffer a significant loss from the transaction. While neither “significant” nor “reasonably possible” was defined in this context, standard rules of thumb quickly emerged in the implementation of FAS 113. The most commonly cited is the “10/10 Rule”. This rule states that a contract reaches a threshold if there is at least a 10 percent chance that it will suffer a loss of 10 percent or more in present value (expressed as a percentage of the contract premium ceded).