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Provision 1 According to ASC 840-10-55-10, “amounts paid in consideration for a guarantee by an unrelated third party are executory costs and are not included in the lessee’s minimum lease payments.”2 The external legal counsel fee of $500,000 that Thurber paid to Stipe, Berry, Mills and Buck LLP in connection with negotiating the lease agreement are executory cost because they are all third parties that guarantee for the lease agreement. They are not involved in the lease term. Thurber will have to recognize these costs as expenses. However, the $1 million of legal fees paid to Goliath will be included in the minimum lease payment. Under ASC 840-10-25-6 (e), “fees that are paid by the lessee to the owners of the special-purpose entity for structuring the lease transaction. Such fees shall be included as part of minimum lease payments (but shall not be included in the fair value of the leased property) for purposes of applying the 90 percent test in paragraph 840-10-25-1(d).”1 Legal fees incurred by Goliath are considered as fees for structuring the lease transaction. Therefore, it should be included in minimum lease payment.
Provision 2
If any of those conditions do not exist, then the maximum amount that the lessee could be required to pay under the default covenant shall be included in minimum lease payments for purposes of applying paragraph 840-10-25-1 (d).”1 Thurber will be in default under the credit arrangement if there is a “material adverse change” in its financial condition. Since financial condition is a customary provision in leasing arrangements, Thurber has met this condition and the penalty payment will not be included in the minimum lease payment.
Provision 3
According to ASC 840-10-25-4, “lease payments that depend on an existing index or rate, such as the consumer price index or the prime interest rate, shall be included in minimum lease…...

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