exhibit4-2.htm


    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 2202 N. West Shore Boulevard,
5th Floor, Tampa, Florida 33607, 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 452 Fifth Avenue, New
York, New York 10018 ("Successor
Trustee") and WELLS 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
625 Marquette Avenue, MAC N9311-110, Minneapolis, MN 55479 ("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, on December 5, 2008, the Resigning Trustee provided written
notice to the Co-Issuers that it is resigning as Trustee, Registrar and Paying
Agent 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

     

    
      	
               
      

            	
              1.1

            	
              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.

               

            


    

    
      	
               
      

            	
              1.2

            	
              Resigning
      Trustee hereby represents and warrants to Successor Trustee
      that:

               

            


    

    
      	
               
      

            	
              (a)

            	
              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.

               

            


    

    
      	
               
      

            	
              (b)

            	
              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.

               

            


    

    
      	
               
      

            	
              (c)

            	
              As
      of the effective date of this Agreement, Resigning Trustee will hold no
      moneys or property under the
Indenture.

            


    

    

      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

    
      	
               
      

            	
              (d)

            	
              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.

               

            


    

    
      	
               
      

            	
              (e)

            	
              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.

               

            


    

    
      	
               
      

            	
              (f)

            	
              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.

               

            


    

    
      	
               
      

            	
              (g)

            	
              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.

               

            


    

    
      	
               
      

            	
              (h)

            	
              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.

               

            


    

    
      	
               
      

            	
              1.3

            	
              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.

            


    

    

      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    
      	
               
      

            	
              1.4

            	
              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.

               

            


    

    
      	
               
      

            	
              1.5

            	
              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.

            	
               

            


    

     

    2

     

    THE
CO-ISSUERS

     

    
      	
               
      

            	
              2.1

            	
              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.

               

            


    

    
      	
               
      

            	
              2.2

            	
              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.

               

            


    

    
      	
               
      

            	
              2.3

            	
              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.

               

            


    

    
      	
               
      

            	
              2.4

            	
              The
      Co-Issuers hereby represent and warrant to Resigning Trustee and Successor
      Trustee that:

               

            


    

    
      	
               
      

            	
              (a)

            	
              Each
      of the Co-Issuers is duly and validly organized and existing
      pursuant to the laws of the State of Delaware.

               

            


    

    
      	
               
      

            	
              (b)

            	
              The
      Indenture was validly and lawfully executed and delivered by the
      Co-Issuers and the Securities were validly issued by the
      Co-Issuers.

               

            


    

    
      	
               
      

            	
              (c)

            	
              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.
      

            


    

    

      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    
      	
               
      

            	
              (d)

            	
              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.

               

            


    

    
      	
               
      

            	
              (e)

            	
              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.

               

            


    

    
      	
               
      

            	
              (f)

            	
              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.

               

            


    

    
      	
               
      

            	
              (g)

            	
              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.

               

            


    

    
      	
               
      

            	
              (h)

            	
              All
      conditions precedent relating to the appointment of Successor Trustee as
      successor Trustee under the Indenture have been complied with by the
      Co-Issuers.

            


    

     

    3

     

    THE SUCCESSOR
TRUSTEE

     

    
      	
               
      

            	
              3.1

            	
              Successor
      Trustee hereby represents and warrants to Resigning Trustee and to the
      Co-Issuers that:

               

            


    

    
      	
               
      

            	
              (a)

            	
              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.

               

            


    

    
      	
               
      

            	
              (b)

            	
              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.

            



      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    
      	
               
      

            	
              (c)

            	
              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.

               

            


    

    
      	
               
      

            	
              (d)

            	
              Each
      person acting on behalf of Successor Trustee is a duly authorized
      signatory of Successor Trustee.

               

            


    

    
      	
               
      

            	
              (e)

            	
              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.

               

            


    

    
      	
               
      

            	
              3.2

            	
              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.

               

            


    

    
      	
               
      

            	
              3.3

            	
              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 452 Fifth Avenue, New York, New
      York 10018.

               

            


    

     

    4

     

    MISCELLANEOUS

     

    
      	
               
      

            	
              4.1

            	
              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.

               

            


    

    
      	
               
      

            	
              4.2

            	
              This
      Agreement and the resignation, appointment and acceptance effected hereby
      shall be effective as of the opening of business on February 5,
      2009.

               

            


    

    
      	
               
      

            	
              4.3

            	
              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


            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              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).

               

            


    

    
      	
               
      

            	
              4.4

            	
              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.

               

            


    

    
      	
               
      

            	
              4.5

            	
              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.

               

            


    

    
      	
               
      

            	
              4.6

            	
              The
      Co-Issuers, Resigning Trustee and Successor Trustee hereby acknowledge
      receipt of an executed counterpart of this Agreement and the effectiveness
      thereof

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    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.

     

     

    OSI
RESTAURANT PARTNERS, LLC

    


    By: /s/
Dirk  Montgomery__

    Name:
Dirk A. Montgomery

    Title:  Chief
Financial Officer

    


    


    OSI
CO-ISSUER, INC.

    


    By: /s/
Dirk  Montgomery__

    Name:
Dirk A. Montgomery

    Title:  Chief
Financial Officer

    


    


    WELLS
FARGO BANK, NATIONAL ASSOCIATION

    as
Resigning Trustee

    


    By: /s/ Jayne
Sillman                                                   

    Name:
Jayne Sillman

    Title:
Vice President

    


    


    HSBC BANK
USA, NATIONAL ASSOCIATION

    as
Successor Trustee

    


    By: /s/ Vivian
Ly_______________________________

    Name:
Vivian Ly

    Title:
Assistant Vice President


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    EXHIBIT A

     

    Documents
to be delivered to Successor Trustee

    


    1.         Copy
of Indenture.

    


    2.         File
of closing documents from initial issuance.

    


    
      	
               
      

            	
              3.

            	
              Copies
      of the most recent of each of the SEC reports delivered by the Co-Issuers
      pursuant to Section 4.03 of the
Indenture.

            


    

    


    
      	
               
      

            	
              4.

            	
              A
      copy of the most recent compliance certificate delivered pursuant to
      Section 4.04 of the Indenture.

            


    

    


    
      	
               
      

            	
              5.

            	
              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).

            	
               

            	
               

            


    

    


    
      	
               
      

            	
              6.

            	
              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.

            	
               

            


    

    


    
      	
               
      

            	
              7.

            	
              List
      of any documents which, to the knowledge of Resigning Trustee, are
      required to be furnished but have not been furnished to Resigning
      Trustee.

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    EXHIBIT B

     

    NOTICE

     

    To the
Holders of.

    


    10%
Senior Notes due
2015                                                                                                                         CUSIP
# ________

     

    of OSI
RESTAURANT PARTNERS, LLC

    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 Wells Fargo Bank, National Association, as Trustee, that Wells 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 452 Fifth Avenue, New York, New
York 10018.

    


        Wells 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