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): January 14, 2009
WENDY’S/ARBY’S
GROUP, INC.
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(Exact
name of registrant as specified in its charter)
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.
On January 14, 2009, Wendy’s
International, Inc. (“Borrower”), an indirect wholly owned subsidiary of
Wendy’s/Arby’s Group, Inc.(“Wendy’s/Arby’s Group”), and Wendy’s International
Holdings, LLC (“Holdings”), a direct wholly owned subsidiary of Wendy’s/Arby’s
Group, entered into a Credit Agreement, among Borrower, Holdings, JPMorgan Chase
Bank, N.A., as Administrative Agent, Bank of America, N.A., as Syndication
Agent, Wachovia Bank, National Association, as Documentation Agent, and J.P.
Morgan Securities, Inc., Banc of America Securities LLC and Wachovia Capital
Markets LLC as joint lead arrangers and joint bookrunners (the "Credit
Agreement").
The
Credit Agreement provides for a revolving credit facility of $200 million, with
a provision to allow for an uncommitted increase of up to an additional $100
million in the revolving facility amount subject to approval and acceptance by
the Administrative Agent, among other conditions. The revolving credit facility
includes a subfacility for the issuance of letters of credit. The
revolving credit facility will be used for working capital and other general
corporate purposes. As of January 14, 2009, $5.0 million of loans
were outstanding and letters of credit in the aggregate amount of $27.2 million
were issued under the Credit Agreement.
The
obligations under the Credit Agreement are secured by a perfected first priority
security interest in substantially all of the non-real estate assets of
Holdings, Borrower and Borrower’s domestic subsidiaries, including all
inventory, accounts receivable, rights under franchise agreements, other
tangible and intangible assets (other than stock of any direct or indirect
foreign subsidiary and certain Unrestricted Subsidiaries (as defined in the
Credit Agreement)), and the stock of domestic Restricted Subsidiaries (as
defined in the Credit Agreement), as well as by mortgages on certain restaurant
properties, in each case subject to certain exceptions. The terms of
the security interest in personal property are set forth in the related
Guarantee and Collateral Agreement.
The
revolving credit facility will mature on November 1, 2011.
A
facility fee will be payable quarterly on the average unused amount of the
revolving credit facility until the maturity date. The amount of the
facility fee will be between 30 and 50 basis points depending on Standard and
Poor’s and Moody’s long-term unsecured senior, non-credit enhanced debt rating
of Borrower. Borrower may elect that the revolving loans bear interest at a rate
per annum equal to (a) the Alternate Base Rate plus the Applicable Margin or (b)
the Eurodollar Base Rate (as defined in the Credit Agreement) plus the
Applicable Margin. “Alternate Base Rate” means the highest of
(i) the rate of interest publicly announced by JPMorgan Chase Bank as its
prime rate in effect at its principal office in New York City, (ii) the
federal funds effective rate from time to time plus 0.5% per annum, and (iii)
the Adjusted Eurodollar Rate (as defined in the Credit Agreement) for one month
plus 1.0% per annum. The Applicable Margin for the Alternate Base
Rate will be between 0.75% and 2.25% depending on Standard and Poor’s and
Moody’s rating of Borrower without third-party credit
enhancement. The Applicable Margin for the Eurodollar Rate will be
between 1.75% and 3.25% depending on Standard and Poor’s and Moody’s rating of
Borrower without third-party credit enhancement.
The
Credit Agreement contains customary provisions protecting the lenders against
increased costs or loss of yield resulting from changes in reserve, capital
adequacy and other requirements of law and from the imposition of or changes in
withholding or other certain taxes and indemnifying the lenders for “breakage
costs” incurred in connection with, among other things, any prepayment of a
eurodollar loan on a day other than the last day of an interest period with
respect thereto.
Mandatory
prepayments of the revolving credit facility will be required upon the
occurrence of certain events, including the sale of real estate which is
mortgaged pursuant to the Credit Agreement and casualty events involving such
real estate.
The
representations, covenants, and events of default in the Credit Agreement are
customary for financing transactions of this nature. Upon the occurrence of an
event of default, the lenders may terminate the loan commitments, accelerate all
loans and exercise any of their rights under the Credit Agreement and the
ancillary loan documents as a secured party.
The
affirmative and negative covenants in the Credit Agreement include, among
others, preservation of corporate existence; payment of taxes; maintenance of
insurance; limitations on indebtedness (including guarantee obligations of other
indebtedness); liens (including a prohibition on any liens on stock of any
direct or indirect foreign subsidiary); mergers, consolidations, liquidations
and dissolutions; sales of assets; dividends and other payments in respect of
capital stock; capital expenditures; acquisitions, investments, loans and
advances; payments and modifications of subordinated and other material debt
instruments; transactions with affiliates; sale-leasebacks; changes in fiscal
year; hedging arrangements; negative pledge clauses and clauses restricting
subsidiary distributions; and material changes in lines of
business.
The
Credit Agreement contains financial covenants restricting the maximum
consolidated indebtedness to adjusted EBITDA and a minimum consolidated fixed
charge coverage ratio. For purposes of these covenants “consolidated”
means the combined results of Borrower and its Restricted
Subsidiaries.
In 2008, Triarc Companies, Inc., which
has since changed its name to Wendy’s/Arby’s Group, Inc., retained Wachovia
Capital Markets LLC (“Wachovia”), an affiliate of one of the lenders under the
Credit Agreement, to act as financial advisor and to provide a fairness opinion
in connection with the merger with Borrower. In 2007, a Special
Committee of the Board of Directors of Borrower retained J.P. Morgan Securities
Inc. (“JPM Securities”), an affiliate of one of the lenders under the Credit
Agreement, to act as its financial advisor in considering strategic options
available to Borrower. In addition, certain of the lenders under the
Credit Agreement and their affiliates
(including Wachovia and JPM Securities and their affiliates) have from time to
time provided investment banking, commercial banking and other financial
services to Wendy’s/Arby’s Group, Inc. or its affiliates, for which they
received customary fees and commissions. The lenders under the Credit
Agreement may also provide these services to Wendy’s/Arby’s Group, Inc. or its
affiliates from time to time in the future.
The
foregoing summary is qualified in its entirety by reference to the Credit
Agreement, which is filed herewith as Exhibit 10.1 and is incorporated herein by
reference. The Guarantee and Collateral Agreement is filed herewith
as Exhibit 10.2 and is incorporated herein by reference.
Item
2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item
1.01 of this Report, other than the penultimate paragraph thereof, is
incorporated by reference into this Item 2.03.
Item
9.01. Financial Statements and Exhibits.
(d) Exhibits
10.1
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Credit Agreement dated January 14, 2009, by
and between Wendy’s International, Inc., an indirect wholly owned
subsidiary of Wendy’s/Arby’s Group, Inc, Wendy’s International Holdings,
LLC, a direct wholly owned subsidiary of Wendy’s/Arby’s Group, JPMorgan
Chase Bank, N.A., as Administrative Agent, Banc of America, N.A., as
Syndication Agent, Wachovia Bank, National Association, as Documentation
Agent, and J.P. Morgan Securities, Inc., Banc of America Securities LLC
and Wachovia Capital Markets LLC as joint lead arrangers and joint
bookrunners.
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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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Senior
Vice President,
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Dated: January 15, 2009 |
General
Counsel and Secretary
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EXHIBIT
INDEX
Exhibit Description
10.1
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Credit Agreement dated January 14, 2009, by
and between Wendy’s International, Inc., an indirect wholly owned
subsidiary of Wendy’s/Arby’s Group, Inc, Wendy’s International Holdings,
LLC, a direct wholly owned subsidiary of Wendy’s/Arby’s Group, JPMorgan
Chase Bank, N.A., as Administrative Agent, Banc of America, N.A., as
Syndication Agent, Wachovia Bank, National Association, as Documentation
Agent, and J.P. Morgan Securities, Inc., Banc of America Securities LLC
and Wachovia Capital Markets LLC as joint lead arrangers and joint
bookrunners.
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