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Aug21
Let's talk EBOs
I recently received a comment regarding one of my posts on early buyouts (EBOs). In this post, I mentioned that EBOs are a technique for achieving off balance sheet financing under FASB 13, as it shortens the lease term for purposes of the 90% test. The comment was really more of a question, specifically, “How does an EBO shorten the term?”
 
Early buyouts (EBOs) are a structuring technique used to create off balance sheet financing for the lessee and are specifically targeted to passing the 90% test of FASB 13. (Although the lease term is a factor in the 75% of economic life test of FASB 13, shortening the term through an EBO generally is not used in this context.) An EBO structure usually is used on longer term leases or in situations in which the residual is not high enough for the payment stream to present value to less than 90%. So how does the EBO work?
 
Anytime the payments PV to greater than 90% of fair market value, the lessor somehow must reduce the amount of the payments in order to drive down the PV to below 90%. One way to do this is to offer a lower payment. (Hint: do not do this – it really plays heck with your yield!) Instead, you can use an EBO. In an EBO, the lessee is given the option at a certain point, or points, during the lease (the EBO date) to purchase the equipment, return the equipment to the lessor, or continue leasing the equipment over the remaining term. The option to return the equipment and walk away from the lease truncates the lease term as of the EBO date for purposes of the 90% test.
Since the lease term is shortened, there are fewer payments to be included in the 90% calculation – fewer payments, lower present value! The residual also should be higher at the EBO date, thereby lowering any potential termination fee associated with the return option. The EBO dates should be matched up to the residual curve in order to further reduce the early termination fee.
 
There are some stumbling blocks that you may encounter when you use an EBO, however.   Many lessors use a combination of return provisions and the early termination fee to close the collateral gap. As an auditor, I am going to examine these return provisions very carefully to ensure that they don’t constitute an economic penalty under FASB 98 and, thereby, be included as minimum lease payments. You also will need to keep the economic compulsion tests in mind with an EBO, from a tax perspective, otherwise your deal may not be considered a tax lease by the IRS. I hope this answers your question, Tony.

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