UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): | March 15, 2013 |
CKE Restaurants, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)
| Delaware | 1-11313 and 333-169977 | 33-0602639 |
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_____________________ (State or other jurisdiction |
_____________ (Commission |
______________ (I.R.S. Employer |
| of incorporation) | File Number) | Identification No.) |
| 6307 Carpinteria Ave., Ste. A, Carpinteria, California | 93013 | |
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_________________________________ (Address of principal executive offices) |
___________ (Zip Code) |
| Registrant’s telephone number, including area code: | (805) 745-7500 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
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 March 15, 2013, CKE Restaurants, Inc. (the "Company"), in connection with its ongoing tender offer (the "Tender Offer") and consent solicitation (the "Consent Solicitation) with respect to the Company’s outstanding 11.375% Senior Secured Second Lien Notes due 2018 (the "Notes"), announced that it has received the requisite consents sought in the Consent Solicitation for certain proposed amendments to the Indenture, dated as of July 12, 2010, as amended and supplemented by the First Supplemental Indenture, dated as of July 12, 2010 (as supplemented prior to March 15, 2013, the "Existing Indenture"), by and among the Company, the guarantors named therein (the "Guarantors") and Wells Fargo Bank, National Association, as trustee (the "Trustee") pursuant to which the Notes were issued.
On March 15, 2013, the Company, the Guarantors and the Trustee entered into a Second Supplemental Indenture (the "Second Supplemental Indenture"), which was effective immediately and, once operative will (i) eliminate or waive substantially all of the restrictive covenants contained in the Existing Indenture and the Notes, (ii) eliminate certain events of default in the Existing Indenture, (iii) modify covenants regarding mergers and consolidations in the Existing Indenture, (iv) modify or eliminate certain other provisions in the Existing Indenture and the Notes, including, in some cases, certain provisions relating to defeasance, contained in the Existing Indenture and the Notes and (v) release the liens and security interests in all of the collateral securing the Notes and the guarantees thereof, as contemplated by the Existing Indenture. The Second Supplemental Indenture will become operative upon settlement of the Tender Offer and Consent Solicitation. As such, consents previously delivered and not withdrawn in connection with the Tender Offer and Consent Solicitation may no longer be withdrawn. The Company expects to settle the Tender Offer and Consent Solicitation on or about April 1, 2013.
The complete terms and conditions of the Tender Offer and Consent Solicitation remain the same as set forth in the Tender Offer and Consent Solicitation Statement, dated March 1, 2013, and the related letter of transmittal and consent (collectively, the "Tender Offer Documents").
The obligation of the Company and the guarantors to complete the Tender Offer and Consent Solicitation (including to accept and purchase the tendered Notes in the Tender Offer and make the related consent payment) is subject to a number of conditions precedent, including the completion, on or prior to the date of settlement, of a New Debt Financing (as defined in the Tender Offer Documents), on terms satisfactory to the Company. There can be no assurance that any New Debt Financing will be completed on terms satisfactory to the Company or at all.
For additional information concerning the foregoing, a copy of the Second Supplemental Indenture and the press release dated March 15, 2013, is attached hereto as Exhibits 4.1 and 99.1 and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
4.1 Second Supplemental Indenture dated as of March 15, 2013, by and among the Company (as successor by merger to Columbia Lake Acquisition Corp.), the guarantors named therein and Wells Fargo Bank, National Association, as trustee.
99.1 Press release, dated March 15, 2013, issued by CKE Restaurants, Inc.
SIGNATURES
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.
| CKE Restaurants, Inc. | ||||
| March 18, 2013 | By: |
/s/ Theodore Abajian
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| Name: Theodore Abajian | ||||
| Title: Executive Vice President and Chief Financial Officer | ||||
Exhibit Index
| Exhibit No. | Description | |
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4.1
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Second Supplemental Indenture dated as of March 15, 2013, by and among the Company (as successor by merger to Columbia Lake Acquisition Corp.), the guarantors named therein and Wells Fargo Bank, National Association, as trustee. | |
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99.1
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Press release, dated March 15, 2013, issued by CKE Restaurants, Inc. |
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”) dated as of March 15, 2013, among CKE RESTAURANTS, INC., a Delaware corporation (as successor by merger to Columbia Lake Acquisition Corp., the “Company,”), the GUARANTORS party thereto (the “Guarantors”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Original Indenture”), dated as of July 12, 2010, providing for the issuance of the Company’s 11.375% Senior Secured Second Lien Notes due 2018 (the “Securities”), as amended and supplemented by the First Supplemental Indenture (the “First Supplemental Indenture”), dated as of July 12, 2010, among the Company, the Guarantors and the Trustee (the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the “Indenture”);
WHEREAS, Section 9.02 of the Indenture provides that the Company, the Guarantors and the Trustee may amend the Indenture with respect to the Securities with the written consent of the Holders of at least a majority in principal amount of the Securities then outstanding voting as a single class (including consents obtained in connection with a tender offer or exchange offer for the Securities) (the “General Requisite Consents”);
WHEREAS, Sections 9.02 and 11.04(a)(3) of the Indenture allow the release of Liens on property that constitutes all of the Collateral securing the obligations under the Securities (the “Collateral Release”) with the consent of the Holders of at least two-thirds in aggregate principal amount of the outstanding Securities (the “Collateral Release Requisite Consents” and, together with the General Requisite Consents, the “Requisite Consents”);
WHEREAS, the Company distributed an offer to purchase and consent solicitation statement dated March 1, 2013 (the “Statement”), in order to, among other things, subject to the terms and conditions set forth in the Statement, solicit consents (the “Consents”) from Holders to certain amendments to the Indenture and the Securities (the “Proposed Amendments”);
WHEREAS, the Holders of 98.24% in principal amount of the outstanding Securities have validly tendered Consents and not validly withdrawn their Consents to the adoption of the Proposed Amendments and the Collateral Release;
WHEREAS, having received the Requisite Consents from the outstanding Securities, pursuant to Section 9.02 of the Indenture, the Company, the Guarantors and the Trustee desire to amend the Indenture;
WHEREAS, the Company, the Guarantors and the Trustee are authorized to execute and deliver this Second Supplemental Indenture;
WHEREAS, the Company has complied with all conditions precedent provided for in the Indenture relating to this Second Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver this Second Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
1. Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meaning assigned to them in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this Second Supplemental Indenture as a whole and not to any particular section hereof.
2. Effectiveness. This Second Supplemental Indenture shall become effective immediately upon its execution and delivery by the Company, the Guarantors and the Trustee; provided that the amendments to the Indenture set forth herein shall not be operative until all of the Securities that have been tendered and accepted for payment have been paid for in accordance with the terms of the Statement.
3. Amendments. (a) The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto in their entirety, except to the extent otherwise provided below, and these Sections and clauses shall be of no further force and effect, and the words “[INTENTIONALLY DELETED]” shall be inserted, in each case, in place of the deleted text:
Section 4.02 (Reports and Other Information)
Section 4.03 (Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock)
Section 4.04 (Limitation on Restricted Payments)
Section 4.05 (Dividend and Other Payment Restrictions Affecting Subsidiaries)
Section 4.06 (Asset Sales)
Section 4.07 (Transactions with Affiliates)
Section 4.08 (Change of Control)
Section 4.09 (Compliance Certificate)
Section 4.10 (Further Instruments and Acts)
Section 4.11 (Future Guarantors)
Section 4.12 (Liens)
Section 4.14 (Amendment of Security Documents)
Section 4.15 (After-Acquired Property)
Section 4.16 (Termination and Suspension of Certain Covenants)
Section 4.17 (Mortgages; Insurance)
Clauses (a)(iii), (a)(iv), and (a)(vi) of Section 5.01 (When Issuer May Merge or Transfer Assets)
Clauses (d), (e), (h), (i), (j) and (k) of Section 6.01 (Events of Default)
Section 6.12 (Waiver of Stay or Extension Laws)
Clauses (a)(ii), (a)(iii), (a)(iv), (a)(v), (a)(vi), and (a)(vii) of Section 8.02 (Conditions to Defeasance)
(b) Clauses (f) and (g) of Section 6.01 are hereby amended by deleting each instance of the phrase “or any Significant Subsidiary” in its entirety.
(c) Pursuant to Section 11.04(a)(3) of the Indenture, all of the Collateral shall be released from the Lien and security interest created by the Security Documents.
4. Approval of Amendments to, Restatements of or Termination of Certain Security Documents. Notwithstanding anything to the contrary, any amendments to, restatements of, or termination of, as applicable, the Security Documents and any related documents, including, but not limited to, any acknowledgements, side-letters, joinders and other agreements, in order to effectuate all of the transactions contemplated by the Collateral Release shall be permitted under the Indenture.
5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
6. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Second Supplemental Indenture.
8. Counterparts. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
9. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
CKE RESTAURANTS, INC.
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By:
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/s/ Charles A. Seigel III | |||
| Name: Charles A. Seigel III | ||||
| Title: Senior Vice President, Legal & Assistant Secretary |
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GUARANTORS:
AEROWAYS, LLC
By: CKE Restaurants, Inc.
its Sole Member
| By: | /s/ Charles A. Seigel III |
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Name: Charles A. Seigel III |
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Title: Senior Vice President, Legal & Assistant Secretary |
GUARANTORS:
BURGER CHEF SYSTEMS, INC.
HARDEE’S FOOD SYSTEMS, INC.
HED, INC.
FLAGSTAR ENTERPRISES, INC.
SPARDEE’S REALTY, INC.
| By: | /s/ Charles A. Seigel III |
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Name: Charles A. Seigel III |
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Title: Senior Vice President, Legal & Assistant Secretary |
GUARANTORS:
CARL KARCHER ENTERPRISES, INC.
GB FRANCHISE CORPORATION
CARL’S JR. REGION VIII, INC.
CKE REIT II, INC.
SANTA BARBARA RESTAURANT GROUP, INC.
| By: | /s/ Charles A. Seigel III |
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Name: Charles A. Seigel III |
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Title: Senior Vice President, General Counsel & Secretary |
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By:
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/s/ Raymond Delli Colli | |
| Name: Raymond Delli Colli | ||
| Title: Vice President |
CKE RESTAURANTS, INC. ANNOUNCES RESULTS OF TENDER OFFER FOR OUTSTANDING DEBT AND RELATED
CONSENT SOLICITATION
CARPINTERIA, Calif. (March 15, 2013) – CKE Restaurants, Inc. (“CKE Restaurants” or the “Company”) announced today the results of its previously announced tender offer (the “Tender Offer”) and consent solicitation (the “Consent Solicitation”) with respect to the Company’s 11.375% Senior Secured Second Lien Notes due 2018 (the “Notes”).
Results of Tender Offer and Consent Solicitation for 11.375% Senior Secured Second Lien Notes due 2018
The Company received tenders from holders of $463,829,000 aggregate principal amount of Notes prior to 11:59 p.m., New York City time on March 14, 2013, (the “Early Consent Date”). These tenders of the Notes prior to the Early Consent Date represent approximately 98.24% of the outstanding Notes, which amount exceeds the tender cap of $412,122,000 aggregate principal amount of Notes (the “Tender Cap”).
The Tender Offer and Consent Solicitation will remain open until they expire as scheduled at 11:59 p.m., New York City time, on March 28, 2013 (the “Expiration Date”). Tendered Notes may no longer be withdrawn, except to the extent that the Company is required by law to provide additional withdrawal rights.
Subject to the Tender Cap and proration, each holder who tendered its Notes prior to the Early Consent Date and has its Notes accepted in the Tender Offer will receive, as total consideration, a cash payment of $1,177.50 in exchange for each $1,000 principal amount of Notes that is accepted. Such total consideration includes an early consent payment, in cash, of $30.00 per $1,000 principal amount of Notes so tendered and accepted. The Company will determine the final proration factor and announce the results of such proration as soon as practicable after the Expiration Date.
In addition, the Company has received the requisite consents for the proposed amendments to the Indenture, dated as of July 12, 2010 (the “Base Indenture”), by and between the Company (as successor by merger to Columbia Lake Acquisition Corp.) and Wells Fargo Bank, National Association, as trustee (the “Trustee”), pursuant to which the Notes were issued, as amended and supplemented by the First Supplemental Indenture dated as of July 12, 2010, by and among the Company, the guarantors named therein and the Trustee (the Base Indenture, as so amended and supplemented, the “Indenture”), which (i) eliminate or waive substantially all of the restrictive covenants contained in the Indenture and the Notes, (ii) eliminate certain events of default, (iii) modify covenants regarding mergers and consolidations, (iv) modify or eliminate certain other provisions, including, in some cases, certain provisions relating to defeasance, contained in the Indenture and the Notes and (v) release the liens and security interests in all of the collateral securing the Notes and the guarantees thereof, as contemplated by the Indenture. The Company, the guarantors and the Trustee have executed a supplemental indenture, which gives effect to the foregoing amendments, including the collateral release, which are effective upon execution and will become operative upon settlement of the Tender Offer and Consent Solicitation. As such, consents previously delivered and not withdrawn in connection with the Tender Offer and Consent Solicitation may no longer be withdrawn. The Company expects to settle the Tender Offer and Consent Solicitation on or about April 1, 2013.
The complete terms and conditions of the Tender Offer and Consent Solicitation are as set forth in the Tender Offer and Consent Solicitation Statement, dated March 1, 2013, and the related letter of transmittal and consent (collectively, the “Tender Offer Documents”).
The obligation of the Company and the guarantors to complete the Tender Offer and Consent Solicitation (including to accept and purchase the tendered Notes in the Tender Offer and make the related consent payment) is subject to a number of conditions precedent, including the completion, on or prior to the date of settlement, of a New Debt Financing (as defined in the Tender Offer Documents), on terms satisfactory to the Company. There can be no assurance that any New Debt Financing will be completed on terms satisfactory to the Company or at all.
General
This announcement shall not constitute an offer to purchase or a solicitation of an offer to sell any securities.
Barclays Capital Inc. is acting as Dealer Manager for the Tender Offer and Solicitation Agent for the Consent Solicitation. Questions regarding the Tender Offer and Consent Solicitation may be directed to Barclays Capital Inc., Attn: Liability Management Group at (800) 438-3242 (toll-free) or at (212) 528-7581 (collect).
D.F. King & Co., Inc. is acting as the Tender Agent and Information Agent for the tender offer and consent solicitation. Requests for the Tender Offer Documents from eligible holders may be directed to D.F. King & Co., Inc. at (212) 269-5550 (for brokers and banks) or (800) 290-6426 (for all others).
About CKE Restaurants
CKE Restaurants, Inc. is a privately held company headquartered in Carpinteria, Calif. As of January 28, 2013, the Company, through its subsidiaries, had a total of 3,318 franchised or company-operated restaurants in 42 states and 28 foreign countries and U.S. territories worldwide. For more information about CKE Restaurants, please visit www.ckr.com.
Forward-Looking Statements
Matters discussed in this press release contain forward-looking statements, which are based on management’s current beliefs and assumptions. Although the Company does not make forward-looking statements unless it has a reasonable basis for doing so, the Company cannot guarantee their accuracy. Such statements are subject to risks and uncertainties that are often difficult to predict, are beyond the Company’s control, and which may cause results to differ materially from expectations. Factors that could cause the Company’s results to differ materially from those described include, but are not limited to: the Company’s ability to complete a New Debt Financing on terms satisfactory to it; the Company’s ability to compete with other restaurants, supermarkets and convenience stores for customers, employees, restaurant locations and franchisees; changes in consumer preferences, perceptions and spending patterns; changes in food, packaging and supply costs; changes in interest rates, commodity prices, labor costs, energy costs and other expenses; the ability of the Company’s key suppliers to continue to deliver premium-quality products to the Company at moderate prices; the Company’s ability to successfully enter new markets, complete construction of new restaurants and complete remodels of existing restaurants; changes in general economic conditions and the geographic concentration of the Company’s restaurants, which may affect the Company’s business; the Company’s ability to attract and retain key personnel; the Company’s franchisees’ willingness to participate in the Company’s strategy; risks associated with implementing the Company’s growth strategy, including opening new domestic and international restaurants; the operational and financial success of the Company’s franchisees; the willingness of the Company’s vendors and service providers to supply the Company with goods and services pursuant to customary credit arrangements; risks associated with operating in international locations; the effect of the media’s reports regarding food-borne illnesses, food tampering and other health related issues on the Company’s reputation and its ability to procure or sell food products; the effectiveness of the Company’s marketing and advertising programs; the seasonality of the Company’s operations; the effect of increasing labor costs including healthcare related costs; increased insurance and/or self-insurance costs; the Company’s ability to comply with existing and future health, employment, environmental and other government regulations; the Company’s ability to adequately protect its intellectual property; the adverse effect of litigation in the ordinary course of business; a significant failure, interruption or security breach of the Company’s computer systems or information technology; catastrophic events, including war, terrorism and other international conflicts, public health issues or natural causes; the potentially conflicting interests of the Company’s controlling stockholder and its creditors; the Company’s substantial leverage, which could limit its ability to raise capital, react to economic changes or meet obligations under its indebtedness; the effect of restrictive covenants in the indentures governing the Notes and the Credit Facility on the Company’s business; and other factors as discussed in the Company’s filings with the SEC.
As a result of these risks and uncertainties, or as a result of other risks and uncertainties of which the Company’s management is currently unaware or that the Company’s management does not presently believe to be material, the Company cannot assure readers that the forward-looking statements in this press release will prove to be accurate. Furthermore, if the Company’s forward-looking statements prove to be inaccurate, the impact may be material. In light of the significant uncertainties in these forward-looking statements, readers should not regard these statements as a representation or warranty by the Company or any other person that the Company will achieve its objectives and plans in any specified time frame, or at all. The forward-looking statements in this press release speak only as of the date of this press release.
The Company expressly disclaims any obligation to publicly update or revise any forward-looking statement, whether to conform such statement to actual results or as a result of changes in the opinions or expectations of the Company’s management, new information, future events or otherwise, in each case except as required by law.
Contact Information
Beth Mansfield, Public Relations
Phone : (805) 745-7741
E-mail: bmansfield@ckr.com
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