Item 1.01.
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Entry Into a Material Definitive Agreement.
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Lease Agreements
On December 12, 2016, Benefitfocus.com, Inc., a wholly owned subsidiary of Benefitfocus, Inc. (the Company), executed an
amendment to each of: (i) the Lease Agreement dated January 1, 2009, as amended, between the Company and Daniel Island Executive Center, LLC (DIEC); (ii) the Lease Agreement dated May 31, 2005, between the Company and
DIEC; and (iii) the Commercial Lease Agreement dated December 13, 2013, between the Company and DIEC II, LLC (collectively, the Lease Amendments). The Lease Amendments extend the term of each lease agreement to
December 31, 2031, and provide that the initial term of each lease will reset upon the commencement date of the Lease (as defined below) and again if the Company enters into a new lease for Building 5 (as defined below), to be
co-terminus
with such new lease. The extension of each of the lease terms is in consideration for certain concessions made by DIEC and DIEC II (collectively, the Lessors), namely, extending from
December 13, 2016 to December 31, 2018 the term of an option that allows the Company to require the Lessors to build a
two-story
building, including potentially for a welcome center, of approximately
18,500 square feet on its property, Daniel Island Executive Center II (Berkeley County, South Carolina) (Building 5) for the Company to lease, and waiving certain accrued and future carrying costs and termination fees payable to the
Lessors by the Company under the existing option. On December 12, 2016, the Company also executed a lease agreement with DIEC II (the Lease). Pursuant to the Lease, DIEC II will construct a building of approximately 145,800 square
feet on Daniel Island Executive Center II for the Company to expand its campus to accommodate anticipated future growth.
The target
commencement date of the Lease is July 1, 2019 and the Lease would run for 15 years. Pursuant to the terms of the Lease, the Company agrees to commence construction on or about April 1, 2018 and can also terminate the Lease prior to that
time, subject to reimbursing the landlord for its reasonable, documented, and
pre-agreed
out-of-pocket
costs with respect to the
Lease and building to date. If the Company delays beginning construction past December 31, 2018, the landlord may terminate the Lease. The Company may renew the Lease upon 365 days notice to DIEC II for five additional
one-year
terms, provided that the Company is not in default at the time of its request. If the Company enters into a new lease for Building 5, the term of the Lease will reset to 15 years from the date the Company
begins paying rent for Building 5.
Annual rent for the first year of the Lease is $30.05 per square foot of Rentable Area (as defined in
the Lease). Thereafter, rent will increase by two percent of the rent paid for the preceding Lease Year (as defined in the Lease). Beginning in the second Lease Year, the Company will also be responsible for its proportionate share of the cost of
operating expenses above $5.05 per square foot of Rentable Area, subject to a three percent cap on the annual escalation of Controllable Expenses (as defined in the Lease). Upon an event of default under the Lease, including the failure to pay rent
(subject to a cure period), DIEC II may, among other things, terminate the Lease and require the Company to surrender possession of the leased premises and pay rent due and outstanding as of the termination date.
The Lessors are South Carolina limited liability companies. The Holland Family Trust and Shawn
Arthur Jenkins Living Trust own the Lessors equally. Since Mason R. Holland, Jr., Executive Chairman of the Companys Board of Directors (the Board), and Shawn A. Jenkins, President and director of the Company, are affiliated with
the Holland Family Trust and Shawn Arthur Jenkins Living Trust, respectively, a majority of the disinterested directors of the Board obtained independent advice and deliberated separately with respect to, and then unanimously approved the Lease
Amendments and the Lease.
Amendment to Credit Agreement
In connection with the Lease Amendments and the Lease, on December 12, 2016, the Company and certain subsidiaries of the Company (the
Borrowers) entered into the Fifth Amendment Agreement (the Credit Agreement Amendment) to the Credit Agreement, dated as of February 20, 2015, as amended on June 16, 2015, December 18, 2015, March 24, 2016
and October 28, 2016 (the Credit Agreement), with Silicon Valley Bank, a lender and the administrative agent and collateral agent, and several other lenders party thereto.
The Credit Agreement Amendment revises the covenant restricting indebtedness to increase the basket for building lease obligations of the
Borrowers, to the extent those lease obligations would be characterized as indebtedness under the Credit Agreement.
The description of
the Lease Amendments, the Lease and the Credit Agreement Amendment provided above is qualified in its entirety by reference to the full and complete terms of the Lease Amendments, the Lease and the Credit Agreement Amendment, respectively, which are
filed as exhibits 10.13.1, 10.14.1, 10.16.1, 10.31 and 10.32 to this Current Report on Form
8-K
and are incorporated herein by reference.