form8-k_062409.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): June 18, 2009
WENDY’S/ARBY’S
GROUP, INC.
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(Exact
name of registrant as specified in its charter)
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Delaware
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1-2207
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38-0471180
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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1155
Perimeter Center West
Atlanta,
Georgia
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30338
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
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(678)
514-4100
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(Former
Name or Former Address, if Changed Since Last Report):
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N/A
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
] Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[
] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[
] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item
1.01 Entry
into a Material Definitive Agreement
Issuance
of 10.00% Senior Notes due 2016
General
On June
23, 2009, Wendy’s/Arby’s Restaurants LLC (which was formerly named Wendy’s
International Holdings, LLC) (“Wendy’s/Arby’s Restaurants”), a direct wholly
owned subsidiary of Wendy’s/Arby’s Group, Inc. (“Wendy’s/Arby’s Group”),
completed its previously announced offering of $565.0 million aggregate
principal amount of 10.00% Senior Notes due 2016 (the “Notes”). The Notes
were priced on June 18, 2009.
In
connection with the issuance of the Notes, Wendy’s/Arby’s Restaurants and
certain direct and indirect domestic subsidiaries of Wendy’s/Arby’s Restaurants
(collectively, the “Guarantors”) entered into (i) a Purchase Agreement, dated
June 18, 2009 (the “Purchase Agreement”), among Wendy’s/Arby’s Restaurants, the
Guarantors and certain representatives of the initial purchasers named therein
(collectively, the “Initial Purchasers”), (ii) an Indenture, dated as of June
23, 2009 (the “Indenture”), among Wendy’s/Arby’s Restaurants, the Guarantors and
U.S. Bank National Association, as trustee (the “Trustee”) and (iii) a
Registration Rights Agreement, dated as of June 23, 2009 (the “Registration
Rights Agreement”), among Wendy’s/Arby’s Restaurants, the Guarantors and the
Initial Purchasers.
Pursuant
to the Purchase Agreement, the Initial Purchasers agreed to purchase, and
Wendy’s/Arby’s Restaurants agreed to sell, the Notes, which the Initial
Purchasers re-sold in an offering exempt from registration under the
Securities Act of 1933, as amended. The Purchase Agreement contains
representations and warranties, covenants and closing conditions that are
customary for transactions of this type. In addition, Wendy’s/Arby’s
Restaurants and the Guarantors have agreed to indemnify the Initial Purchasers
against certain liabilities on customary terms.
Certain
of the Initial Purchasers and their affiliates have from time to time provided
investment banking, commercial banking and other financial services to
Wendy’s/Arby’s Group or its affiliates, for which they received customary fees
and commissions. The Initial Purchasers may also provide these
services to Wendy’s/Arby’s Group or its affiliates from time to time in the
future.
Maturity
Date and Interest Rate
The Notes
will mature on July 15, 2016. Interest on the Notes will accrue at
10.00% per annum, paid every six months on January 15 and July 15, with the
first payment on January 15, 2010, to holders of record on the January 1 or July
1 immediately preceding the interest payment date. The Notes were
priced at 97.533% of the principal amount, representing a yield to maturity of
10.50%.
Guarantees
The Notes
are fully and unconditionally guaranteed (the “Guarantees”), jointly and
severally, on an unsecured basis by the Guarantors. All of
Wendy’s/Arby’s Restaurants’ subsidiaries that guarantee its senior secured
credit facilities, except for Scioto Insurance Company, a Vermont captive
insurance company (“Scioto”), and Oldemark LLC, Scioto’s wholly owned
subsidiary, also guarantee the Notes. In addition, certain of Wendy’s/Arby’s
Restaurants’ subsidiaries, including its foreign subsidiaries, do not guarantee
either its senior secured credit facilities or the Notes. Neither
Wendy’s/Arby’s Group nor any of its subsidiaries that are not owned by
Wendy’s/Arby’s Restaurants guarantee the Notes.
Ranking
The Notes
are senior unsecured obligations and rank equally with all of Wendy’s/Arby’s
Restaurants’ existing and future senior debt, rank senior to all of
Wendy’s/Arby’s Restaurants’ future subordinated debt and effectively rank junior
to all secured debt to the extent of the value of the collateral and to all
liabilities of non-guarantor subsidiaries.
Optional
Redemption
Prior to
July 15, 2012, Wendy’s/Arby’s Restaurants may redeem up to 35% of the aggregate
principal amount of the Notes, including additional notes, with the net cash
proceeds from certain equity offerings at a redemption price equal to 110.00% of
the aggregate principal amount of the Notes, plus accrued and unpaid interest,
if any, provided that in each case the redemption takes place not later than 90
days after the closing of the related equity offering and at least 50% of the
original aggregate principal amount of the Notes remains outstanding after the
redemption.
In
addition, prior to July 15, 2012, Wendy’s/Arby’s Restaurants may redeem the
Notes, in whole or in part, at a redemption price equal to 100.00% of the
aggregate principal amount of the Notes, plus accrued and unpaid interest, if
any, plus a “make-whole” premium.
At any
time on or after July 15, 2012, Wendy’s/Arby’s Restaurants may redeem the Notes,
in whole or in part, at declining redemption prices set forth in the Indenture
and the Notes, plus, in each case, accrued and unpaid interest, if any, to the
redemption date.
Change
of Control
Upon the
occurrence of specified change of control events, Wendy’s/Arby’s Restaurants may
be required to offer to purchase all outstanding Notes at a purchase price equal
to 101.00% of the aggregate principal amount, plus accrued and unpaid interest
to, but not including, the date of purchase, if any.
Certain
Covenants
The
Indenture includes certain customary covenants that, subject to a number of
important exceptions and qualifications, limit the ability of Wendy’s/Arby’s
Restaurants and its restricted subsidiaries to, among other things, incur debt
or issue preferred or disqualified stock, pay dividends on equity interests,
redeem or repurchase equity interests or prepay or repurchase
subordinated debt, make some types of investments and sell assets, incur certain
liens, engage in transactions with affiliates (except on an arms-length basis),
and consolidate, merge or sell all or substantially all of their
assets. The covenants generally do not restrict Wendy’s/Arby’s Group
or any of its subsidiaries that are not Wendy’s/Arby’s Restaurants’
subsidiaries. Certain of the covenants will be suspended at any time
the Notes have an investment grade rating by both Moody’s Investors Services,
Inc. and Standard & Poor’s Ratings Service.
Events
of Default
The
Indenture contains events of default, customary for transactions of this type,
including, but not limited to, payment defaults, covenant defaults, certain
events of bankruptcy, material judgments and failure of Guarantees by certain
Guarantors to be in full force and effect. If an event of default, other than a
bankruptcy default with respect to Wendy’s/Arby’s Restaurants, occurs and is
continuing, the principal amount of the Notes, plus accrued and unpaid interest,
if any, may be declared immediately due and payable.
Registration
Rights; Additional Interest
Under the
Registration Rights Agreement, Wendy’s/Arby’s Restaurants and the Guarantors
agreed to:
· file an
exchange offer registration statement within 180 days after the issue date of
the Notes enabling holders to exchange the Notes for registered notes with terms
substantially identical to the terms of the Notes;
· use
commercially reasonable efforts to cause the registration statement to become
effective under the Securities Act of 1933 within 270 days after the issue date
of the Notes;
· use
commercially reasonable efforts to complete the exchange offer within 40 days
after the effective date of the registration statement; and
· file a
registration statement for the resale of the Notes if they cannot complete an
exchange offer within the time periods listed above and in certain other
circumstances.
Wendy’s/Arby’s
Restaurants will be required to pay additional interest on the Notes if it fails
to comply with its obligations under the Registration Rights Agreement within
the specified time periods.
Other
Agreements
On June
23, 2009, simultaneously with the closing of the Notes offering, the
amendments in Amendment No. 1 to Amended and Restated Credit Agreement
and Amended and Restated Pledge and Security Agreement, dated as of June 10,
2009 (the “Amendment”), that were contingent upon the issuance of the Notes
became effective. For details regarding the Amendment and the terms
thereof, see Wendy’s/Arby’s Group’s Current Report on Form 8-K filed on June 10,
2009 and Exhibit 10.1 thereto, which is incorporated by reference
herein.
The above
description of the Purchase Agreement, the Registration Rights Agreement and the
Indenture does not purport to be a complete statement of the parties’ rights and
obligations under each such agreement and is qualified in its entirety by
reference to the Purchase Agreement, the Registration Rights Agreement and
Indenture which we will file as exhibits to our next quarterly report on Form
10-Q.
Item
2.03 Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
See
discussion under Item 1.01 above, which discussion is incorporated by reference
herein.
Item
9.01 Financial
Statements and Exhibits
(d) Exhibits
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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WENDY’S/ARBY’S
GROUP, INC.
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By:
/s/NILS H.
OKESON
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Nils
H. Okeson
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Dated: June 24, 2009 |
Senior
Vice President, General Counsel &
Secretary
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EXHIBIT
INDEX
Exhibit Description