Contract
Exhibit
4.2
AGREEMENT OF RESIGNATION, APPOINTMENT
AND ACCEPTANCE, dated as of February 5, 2009 by and among OSI
Restaurant Partners, LLC, a Delaware limited liability company ("OSI"), OSI
Co-Issuer, Inc., a Delaware corporation ("Co-Issuer", and collectively with OSI,
"Co-Issuers"), each having its principal office at 0000 X. Xxxx Xxxxx Xxxxxxxxx,
0xx Xxxxx, Xxxxx, Xxxxxxx 00000, HSBC BANK USA, NATIONAL ASSOCIATION, a national
banking association duly organized and existing under the laws of the United
States of America and having a corporate trust office at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Successor
Trustee") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national
banking association duly organized and existing under the laws of
the United States of America and having its designated corporate trust office at
000 Xxxxxxxxx Xxxxxx, XXX X0000-000, Xxxxxxxxxxx, XX 00000 ("Resigning
Trustee").
RECITALS:
WHEREAS,
there are currently $488,220,000 aggregate principal amount of the Co-Issuers'
10% Senior Notes due 2015 (the "Securities") outstanding under
an Indenture, dated as of June 14, 2007, by and among the Co-Issuers, the
Guarantors named therein and Resigning Trustee (the "Indenture");
WHEREAS, the Co-Issuers appointed
Resigning Trustee as the Trustee, Registrar and Paying Agent under the
Indenture;
WHEREAS,
Section 7.08 of the Indenture provides that the Trustee may at any time resign
with respect to the Securities by giving written notice of such resignation to
the Co-Issuer, effective upon the acceptance by a successor Trustee of its
appointment as a successor Trustee;
WHEREAS,
Section 7.08 of the Indenture provides that, if the Trustee shall resign, the
Co-Issuers shall promptly appoint a successor Trustee;
WHEREAS, Section 7.08 of the Indenture
provides that any successor Trustee appointed in accordance with the Indenture
shall deliver written acceptance to the Co-Issuers and to its predecessor
Trustee; thereupon, the resignation of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall have all rights, powers and duties of the predecessor
Trustee under the Indenture;
WHEREAS, the Co-Issuers desire
to appoint Successor Trustee as successor Trustee, Registrar and Paying Agent to
succeed Resigning Trustee in such capacities under the Indenture;
and
WHEREAS,
Successor Trustee is willing to accept such appointment as Successor Trustee,
Registrar and Paying Agent under the Indenture;
NOW, THEREFORE, the Co-Issuers,
Resigning Trustee and Successor Trustee, for and in consideration of the
premises and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby consent and agree as
follows:
1
THE RESIGNING
TRUSTEE
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1.1
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Pursuant
to Section 7.08 of the Indenture, on December 5, 2008, the Resigning
Trustee provided written notice to the Co-Issuers that Resigning Trustee
is resigning as Trustee, Registrar and Paying Agent under the
Indenture.
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1.2
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Resigning
Trustee hereby represents and warrants to Successor Trustee
that:
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(a)
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No
covenant or condition contained in the Indenture has been waived
by Resigning Trustee or, to the best knowledge of Responsible
Officers of Resigning Trustee, by the Holders of the percentage in
aggregate principal amount of the Securities required by the Indenture to
effect any such waiver.
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(b)
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There
is no action, suit or proceeding pending or, to the best knowledge of
Responsible Officers of Resigning Trustee threatened against Resigning
Trustee before any court or any governmental authority arising out of any
act or omission of Resigning Trustee as Trustee under the
Indenture.
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(c)
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As
of the effective date of this Agreement, Resigning Trustee will hold no
moneys or property under the
Indenture.
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Pursuant
to Section 2.02 of the Indenture, Resigning Trustee has
duly authenticated and delivered $488,220,000 aggregate principal
amount of Securities that are outstanding as of the effective date
hereof.
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(e)
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The
registers in which Resigning Trustee has registered and transferred
registered Securities accurately reflect the amount of Securities issued
and outstanding and the amounts payable thereon.
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(f)
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Each
person who so authenticated the Securities was duly elected, qualified and
acting as an officer or authorized signatory of Resigning Trustee and
empowered to authenticate the Securities at the respective times of such
authentication and the signature of such person or persons appearing on
such Securities is each such person's genuine signature.
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(g)
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This
Agreement has been duly authorized, executed and delivered on behalf of
Resigning Trustee and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
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(h)
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To
the best knowledge of Responsible Officers of the Resigning
Trustee, no event has occurred and is continuing which is, or after
notice or lapse of time would become, an Event of Default under
Section 6.01 of the Indenture.
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1.3
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Resigning
Trustee hereby assigns, transfers, delivers and confirms to Successor
Trustee all right, title and interest of Resigning Trustee in and to the
trust under the Indenture and all the rights, powers and trusts of the
Trustee under the Indenture. Resigning Trustee shall execute and deliver
such further instruments and shall do such other things as Successor
Trustee may reasonably require so as to more fully and certainly vest and
confirm in Successor Trustee all the rights, powers and trusts hereby
assigned, transferred, delivered and confirmed to Successor Trustee as
Trustee, Registrar and Paying
Agent.
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Resigning
Trustee shall deliver to Successor Trustee, as of or promptly after the
effective date hereof, all of the documents listed on Exhibit A
hereto.
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1.5
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Resigning
Trustee acknowledges that it shall be subject to Trust Indenture Act
Section 311(a)
to the extent indicated therein in connection with the
Indenture.
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2
THE
CO-ISSUERS
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2.1
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Pursuant
to Section 7.08 of the Indenture, the Co-Issuers hereby accept the
resignation of Resigning Trustee as Trustee, Registrar and Paying Agent
under the Indenture.
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2.2
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The
Co-Issuers hereby certify that they have duly authorized certain officers
of the Co-Issuers to: (a) accept Resigning Trustee's resignation as
Trustee, Registrar and Paying Agent under the Indenture; (b) appoint
Successor Trustee as Trustee, Registrar and Paying Agent under the
Indenture; and (c) execute and deliver such agreements and other
instruments as may be necessary or desirable to effectuate the succession
of Successor Trustee as Trustee. Registrar and Paying Agent under the
Indenture.
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2.3
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The
Co-Issuers hereby appoint Successor Trustee as Trustee, Registrar and
Paying Agent under the Indenture to succeed to, and hereby vest Successor
Trustee with, all the rights, powers and duties of Resigning Trustee under
the Indenture with like effect as if originally named as Trustee,
Registrar and Paying Agent in the Indenture.
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2.4
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The
Co-Issuers hereby represent and warrant to Resigning Trustee and Successor
Trustee that:
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(a)
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Each
of the Co-Issuers is duly and validly organized and existing
pursuant to the laws of the State of Delaware.
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(b)
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The
Indenture was validly and lawfully executed and delivered by the
Co-Issuers and the Securities were validly issued by the
Co-Issuers.
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(c)
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The
Co-Issuers have performed or fulfilled prior to the date hereof, and will
continue to perform and fulfill after the date hereof, each covenant,
agreement, condition, obligation and responsibility under the Indenture.
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(d)
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No
event has occurred and is continuing which is, or after notice or lapse of
time would become, an Event of Default under Section 6.01 of the
Indenture.
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(e)
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No
covenant or condition contained in the Indenture has been waived by the
Co-Issuers or, to the best of the Co-Issuers' knowledge, by Holders of the
percentage in aggregate principal amount of the Securities required to
effect any such waiver.
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(f)
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There
is no action, suit or proceeding pending or, to the best of the
Co-Issuers' knowledge, threatened against the Co-Issuers before any court
or any governmental authority arising out of any act or omission of the
CoIssuers under the Indenture.
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(g)
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This
Agreement has been duly authorized, executed and delivered on behalf of
the Co-Issuers and constitutes their legal, valid and binding obligation,
enforceable in accordance with its terms.
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(h)
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All
conditions precedent relating to the appointment of Successor Trustee as
successor Trustee under the Indenture have been complied with by the
Co-Issuers.
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3
THE SUCCESSOR
TRUSTEE
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3.1
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Successor
Trustee hereby represents and warrants to Resigning Trustee and to the
Co-Issuers that:
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(a)
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Successor
Trustee is not disqualified under the provisions of Section 7.10 and is
eligible under the provisions of Section 7.10 of the Indenture to act as
Trustee under the Indenture.
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(b)
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Successor
Trustee satisfies the requirements of Trust Indenture Act Sections
310(a)(1), (2) and (5), and is subject to Section 310(b) of the Trust
Indenture Act.
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This
Agreement has been duly authorized, executed and delivered on behalf of
Successor Trustee and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
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(d)
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Each
person acting on behalf of Successor Trustee is a duly authorized
signatory of Successor Trustee.
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(e)
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Promptly
after the effective date of this Agreement, the Successor Trustee shall
send a notice, substantially in the form of Exhibit B annexed hereto, to
each Holder of the Securities in accordance with the provisions of Section
7.08 of the Indenture.
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3.2
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Successor
Trustee hereby accepts its appointment as Successor Trustee, Registrar and
Paying Agent under the Indenture and accepts the rights, powers, duties
and obligations of Resigning Trustee as Trustee, Registrar and Paying
Agent under the Indenture, upon the terms and conditions set forth
therein, with like effect as if originally named as Trustee, Registrar and
Paying Agent under the Indenture.
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3.3
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References
in the Indenture to "Corporate Trust Office" or other similar terms shall
be deemed to refer to the principal corporate trust office of Successor
Trustee, which is presently located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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4
MISCELLANEOUS
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4.1
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Except
as otherwise expressly provided herein or unless the context otherwise
requires, all terms used herein which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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4.2
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This
Agreement and the resignation, appointment and acceptance effected hereby
shall be effective as of the opening of business on February 5,
2009.
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4.3
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Resigning
Trustee hereby acknowledges payment or provision for payment in full by
the Co-Issuers of compensation for all services rendered by Resigning
Trustee in its capacity as Trustee, Registrar and Paying Agent under
Section 7.07 of the Indenture and reimbursement in full by the Co-Issuers
of the expenses, disbursements and advances
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incurred
or made by Resigning Trustee in its capacity as Trustee, Registrar and
Paying Agent in accordance with the provisions of the Indenture. Resigning
Trustee acknowledges that it relinquishes any lien it may have upon all
property or funds held or collected by it to secure any amounts due it
pursuant to the provisions of Section 7.07 of the Indenture. This
Agreement does not constitute a waiver or assignment by the Resigning
Trustee of any compensation, reimbursement, expenses or indemnity to which
it is or may be entitled pursuant to the Indenture. The Co-Issuers
acknowledge their obligation set forth in Section 6.05 of the Indenture to
indemnify Resigning Trustee for, and to hold Resigning Trustee harmless
against, any loss, liability or expense incurred without willful
misconduct, negligence or bad faith on the part of Resigning Trustee and
arising out of or in connection with the acceptance or administration of
the trust evidenced by the Indenture (which obligation shall survive the
execution hereof).
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4.4
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This
Agreement shall be governed by and construed in accordance with the laws
of the State of New York, without regard to conflicts of laws principles
thereof.
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4.5
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This
Agreement may be executed in any number of counterparts each of which
shall be an original, but such counterparts shall together constitute but
one and the same instrument.
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4.6
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The
Co-Issuers, Resigning Trustee and Successor Trustee hereby acknowledge
receipt of an executed counterpart of this Agreement and the effectiveness
thereof
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed, all as of the day
and year first above written.
By: /s/
Dirk Montgomery__
Name:
Xxxx X. Xxxxxxxxxx
Title: Chief
Financial Officer
OSI
CO-ISSUER, INC.
By: /s/
Dirk Montgomery__
Name:
Xxxx X. Xxxxxxxxxx
Title: Chief
Financial Officer
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
as
Resigning Trustee
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
HSBC BANK
USA, NATIONAL ASSOCIATION
as
Successor Trustee
By: /s/ Xxxxxx
Ly_______________________________
Name:
Xxxxxx Xx
Title:
Assistant Vice President
Documents
to be delivered to Successor Trustee
1. Copy
of Indenture.
2. File
of closing documents from initial issuance.
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3.
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Copies
of the most recent of each of the SEC reports delivered by the Co-Issuers
pursuant to Section 4.03 of the
Indenture.
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4.
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A
copy of the most recent compliance certificate delivered pursuant to
Section 4.04 of the Indenture.
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5.
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Certified
list of Holders, including certificate detail and all "stop transfers" and
the reason for such "stop transfers" (or, alternatively, if there are
a substantial number of registered
Holders, the computer tape reflecting the identity of such
Holders).
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6.
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Copies
of any official notices sent by the Trustee to all the Holders of the
Securities pursuant
to the terms of the Indenture during the past twelve months and a copy of
the most recent Trustee's annual report to Holders delivered pursuant to
Section 7.06 of the Indenture.
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7.
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List
of any documents which, to the knowledge of Resigning Trustee, are
required to be furnished but have not been furnished to Resigning
Trustee.
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NOTICE
To the
Holders of.
10%
Senior Notes due
2015 CUSIP
# ________
AND OSI
CO-ISSUER, INC.
NOTICE IS I-IEREBY GIVEN, pursuant to
Section 7.08 of the Indenture (the "Indenture"), dated as of
June 14, 2007, by and among OSI Restaurant Partners, LLC, OSI Co-Issuer, Inc.
and Xxxxx Fargo Bank, National Association, as Trustee, that Xxxxx Fargo Bank,
National Association has resigned as Trustee, Registrar and Paying Agent under
the Indenture.
Pursuant to
Section 7.08 of the Indenture, HSBC BANK USA, NATIONAL ASSOCIATION, a national
banking association duly organized and existing under the laws of the United
States of America, has accepted appointment as Trustee, Registrar and Paying
Agent under the Indenture. The address of the corporate trust office of the
successor Trustee is 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
Xxxxx Fargo
Bank, National Association's resignation as Trustee, Registrar and Paying Agent
and HSBC BANK USA, NATIONAL ASSOCIATION's appointment as successor Trustee,
Registrar and Paying Agent were effective as of the opening of business on
February 5, 2009.
Dated:__________________________,
2009
HSBC BANK
USA, NATIONAL ASSOCIATION,
as
Trustee
