UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment No.
1)
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(Mark
One)
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[X]
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Annual
Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
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For
the fiscal year ended: December 31,
2008
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Or
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[
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Transition
Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
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For
the transition period from ______ to
______
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Commission
File Number: 1-15935
OSI
RESTAURANT PARTNERS, LLC
(Exact
name of registrant as specified in its charter)
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DELAWARE
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59-3061413
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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2202
North West Shore Boulevard, Suite 500, Tampa, Florida 33607
(Address
of principal executive offices) (Zip Code)
(813)
282-1225
(Registrant’s
telephone number, including area code)
Securities
registered pursuant to Section 12(b) of the Act: NONE
Securities
registered pursuant to Section 12(g) of the Act: NONE
(Title of
class)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes [ ] No [X]
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes [X] No [ ]
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one): Large accelerated filer [ ]
Accelerated Filer [ ] Non-accelerated filer [X] (Do not check if smaller
reporting company) Smaller reporting company [ ]
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes [ ] No [X]
As of June
30, 2008, the last business day of the registrant’s most recently completed
second fiscal quarter, there was no established public trading market for the
registrant’s equity securities.
As of
March 31, 2009, the registrant has 100 units, no par value, of Common Units
outstanding (all of which are owned by OSI HoldCo, Inc., the registrant’s direct
owner), and none are publicly traded.
DOCUMENTS INCORPORATED BY REFERENCE –
NONE.
EXPLANATORY
NOTE
This
Amendment No. 1 (“Amendment”) is being filed to amend our Annual Report on Form
10-K for the year ended December 31, 2008, which OSI Restaurant Partners, LLC
filed with the Securities and Exchange Commission on March 31, 2009 (“2008
10-K”). This Amendment is being filed solely for the purpose of including
Exhibits 10.43 and 10.44 which were inadvertently omitted as part of the
exhibits included under Item 15 of Part IV of the 2008 10-K. All other Items of
the 2008 10-K are unaffected by the change described above and have been omitted
from this amendment. No other revisions or amendments have been made to Part IV,
Item 15 or to any other portion of the 2008 10-K. This Amendment does not
otherwise update information in the 2008 10-K to reflect facts or events
occurring subsequent to the filing date of the 2008 10-K. Currently-dated
certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 by our
Chief Executive Officer and Chief Financial Officer have been included as
exhibits to this Amendment.
2
OSI
Restaurant Partners, LLC
PART
IV
Item
15. Exhibits, Financial Statement Schedules
(a)(1)
LISTING OF FINANCIAL STATEMENTS
Report of
Independent Registered Certified Public Accounting Firm
The
following consolidated financial statements of the Company and subsidiaries
are included in Item 8 of this report:
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·
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Consolidated
Balance Sheets - December 31, 2008 (Successor) and 2007
(Successor)
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·
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Consolidated
Statements of Operations – Year ended December 31, 2008
(Successor), Period from June 15 to December 31, 2007 (Successor), Period
from January 1 to June 14, 2007 (Predecessor) and Year ended December 31,
2006 (Predecessor)
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·
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Consolidated
Statements of Unitholder’s/Stockholders’ (Deficit) Equity – Year
ended December 31, 2008 (Successor), Period from June 15 to December 31,
2007 (Successor), Period from January 1 to June 14, 2007 (Predecessor) and
Year ended December 31, 2006
(Predecessor)
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·
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Consolidated
Statements of Cash Flows – Year ended December 31, 2008 (Successor),
Period from June 15 to December 31, 2007 (Successor), Period from January
1 to June 14, 2007 (Predecessor) and Year ended December 31, 2006
(Predecessor)
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·
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Notes
to Consolidated Financial
Statements
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(a)(2)
FINANCIAL STATEMENT SCHEDULES
None.
(a)(3)
EXHIBITS
The
exhibits in response to this portion of Item 15 are listed below.
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Number
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Description
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3.1.1
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Certificate
of Formation of OSI Restaurant Partners, LLC (included as an exhibit to
Amendment No. 1 to Registrant’s Form S-4 filed on May 12, 2008 and
incorporated herein by reference)
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3.2.1
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Limited
Liability Company Agreement of OSI Restaurant Partners, LLC (included as
an exhibit to Amendment No. 2 to Registrant’s Form S-4 filed on May 12,
2008 and incorporated herein by reference)
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4.1
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Indenture
dated as of June 14, 2007 among OSI Restaurant Partners, LLC, OSI
Co-Issuer, Inc., the Guarantors listed on the signature pages thereto and
Wells Fargo Bank, National Association, as Trustee (included as an exhibit
to Registrant’s Form S-4 filed on May 9, 2008 and incorporated herein by
reference)
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4.2
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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 Co-Issuer, Inc., a Delaware corporation, HSBC Bank USA,
National Association, a national banking association and Wells Fargo Bank,
National Association, a national banking association (filed with the 2008
10-K)
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3
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Number
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Description
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4.3
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Registration
Rights Agreement dated as of June 14, 2007 by and among OSI Restaurant
Partners, LLC, OSI Co-Issuer, Inc., Banc of America Securities LLC,
Deutsche Bank Securities Inc., ABN AMRO Incorporated, GE Capital Markets,
Inc., Rabo Securities USA, Inc., SunTrust Capital Markets, Inc. and Wells
Fargo Securities, LLC (included as an exhibit to Registrant’s Form S-4
filed on May 9, 2008 and incorporated herein by
reference)
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4.4
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Form
of 10% Senior Notes due 2015 (contained in exhibit 4.1)
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10.01
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Royalty
Agreement dated April 1995 among Carrabba’s Italian Grill, Inc., Outback
Steakhouse, Inc., Mangia Beve, Inc., Carrabba, Inc., Carrabba Woodway,
Inc., John C. Carrabba, III, Damian C. Mandola, and John C. Carrabba, Jr.
(included as an exhibit to OSI Restaurant Partners, Inc.’s Report on Form
10-Q for the quarter ended March 31, 1995 and incorporated herein by
reference)
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10.02
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Joint
Venture Agreement of Roy’s/Outback dated June 17, 1999 between OS Pacific,
Inc., a wholly-owned subsidiary of Outback Steakhouse, Inc., and Roy’s
Holdings, Inc. (included as an exhibit to OSI Restaurant Partners, Inc.’s
Annual Report on Form 10-K for the year ended December 31, 1999 and
incorporated herein by reference)
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10.03
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First
Amendment to Joint Venture Agreement dated October 31, 2000, effective for
all purposes as of June 17, 1999, between RY-8, Inc., a Hawaii
corporation, being a wholly owned subsidiary of Roy’s Holding’s, inc., and
OS Pacific, Inc., a Florida corporation, being a wholly owned subsidiary
of Outback Steakhouse, Inc. (included as an exhibit to OSI Restaurant
Partners, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June
30, 2003 and incorporated herein by reference)
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10.04
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Operating
Agreement of Outback/Fleming’s, LLC, a Delaware limited liability company,
dated October 1, 1999, by and among OS Prime, Inc., a wholly-owned
subsidiary of Outback Steakhouse, Inc., FPSH Limited Partnership and AWA
III Steakhouses, Inc. (included as an exhibit to OSI Restaurant Partners,
Inc.’s Annual Report on Form 10-K for the year ended December 31, 1999 and
incorporated herein by reference)
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10.05
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Action
by Unanimous Written Consent of the Members of Outback/Fleming’s, LLC
(amendment to operating agreement of Outback/Fleming’s, LLC) executed
August 8, 2005 to be effective as of July 21, 2005 (included as an exhibit
to OSI Restaurant Partners, Inc.’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2005 and incorporated herein by
reference)
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10.06
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Stockholders
Agreement among Outback Steakhouse International L.P., Newport Pacific
Restaurants, Inc., Michael Coble, Gregory Louis Walther, Donnie Everts,
William Daniel, Beth Boswell, Don Gale, Stacy Gardella, Jayme Goodsell,
Kevin Lee Crippen and Outback Steakhouse Japan Co., Ltd. (included as an
exhibit to OSI Restaurant Partners, Inc.’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2003 and incorporated herein by
reference)
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10.07
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First
Amendment to Asset Purchase Agreement by and between Bonefish Grill, Inc.,
Gray Ghost, LLC, Gray Ghost Holdings, Inc., Timothy V. Curci and William
Lewis Parker, personal representative of the estate of Christopher L.
Parker, deceased, dated as of December 2004 (included as an exhibit to OSI
Restaurant Partners, Inc.’s Annual Report on Form 10-K for the year
ended December 31, 2004 and incorporated herein by
reference)
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4
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Number
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Description
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10.08
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Amended
and Restated Sublicense Agreement dated as of July 22, 2005 and effective
as of January 1, 2005 by and between Cheeseburger Holding Company, LLC and
Cheeseburger in Paradise, LLC (included as an exhibit to OSI Restaurant
Partners, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June
30, 2005 and incorporated herein by reference)
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10.09
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Guaranty,
dated as of June 14, 2007, made by OSI Restaurant Partners, LLC to and for
the benefit of Private Restaurant Properties, LLC (included as an exhibit
to Registrant’s Form S-4 filed on May 9, 2008 and incorporated herein by
reference)
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10.10
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Form
of Subordination, Non-Disturbance and Attornment Agreement, dated as of
June 14, 2007, between German American Capital Corporation and Bank of
America, N.A., as lenders and mortgagees, and Private Restaurant Master
Lessee, LLC, as tenant, as consented to by Private Restaurant Properties,
LLC, as landlord (included as an exhibit to Registrant’s Form S-4 filed on
May 9, 2008 and incorporated herein by reference)
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10.11
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Environmental
Indemnity, made as of June 14, 2007, by OSI Restaurant Partners, LLC and
Private Restaurant Master Lessee, LLC, as indemnitors, for the benefit of
German American Capital Corporation and Bank of America, N.A. (included as
an exhibit to Registrant’s Form S-4 filed on May 9, 2008 and incorporated
herein by reference)
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10.12
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Environmental
Indemnity (First Mezzanine), made as of June 14, 2007, by OSI Restaurant
Partners, LLC and Private Restaurant Master Lessee, LLC, as indemnitors,
for the benefit of German American Capital Corporation and Bank of
America, N.A. (included as an exhibit to Registrant’s Form S-4 filed on
May 9, 2008 and incorporated herein by reference)
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10.13
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Environmental
Indemnity (Second Mezzanine), made as of June 14, 2007, by OSI Restaurant
Partners, LLC and Private Restaurant Master Lessee, LLC, as indemnitors,
for the benefit of German American Capital Corporation and Bank of
America, N.A. (included as an exhibit to Registrant’s Form S-4 filed on
May 9, 2008 and incorporated herein by reference)
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10.14
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Environmental
Indemnity (Third Mezzanine), made as of June 14, 2007, by OSI Restaurant
Partners, LLC and Private Restaurant Master Lessee, LLC, as indemnitors,
for the benefit of German American Capital Corporation and Bank of
America, N.A. (included as an exhibit to Registrant’s Form S-4 filed on
May 9, 2008 and incorporated herein by reference)
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10.15
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Environmental
Indemnity (Fourth Mezzanine), made as of June 14, 2007, by OSI Restaurant
Partners, LLC and Private Restaurant Master Lessee, LLC, as indemnitors,
for the benefit of German American Capital Corporation and Bank of
America, N.A. (included as an exhibit to Registrant’s Form S-4 filed on
May 9, 2008 and incorporated herein by reference)
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10.16*
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Amended
and Restated Employment Agreement dated June 14, 2007, between A. William
Allen, III and OSI Restaurant Partners, LLC (included as an exhibit to
Registrant’s Form S-4 filed on May 9, 2008 and incorporated herein by
reference)
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10.17*
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Amended
and Restated Employment Agreement dated June 14, 2007, between Dirk A.
Montgomery and OSI Restaurant Partners, LLC (included as an exhibit to
Registrant’s Form S-4 filed on May 9, 2008 and incorporated herein by
reference)
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10.18*
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Amended
and Restated Employment Agreement dated June 14, 2007, between Joseph J.
Kadow and OSI Restaurant Partners, LLC (included as an exhibit to
Registrant’s Form S-4 filed on May 9, 2008 and incorporated herein by
reference)
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5
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Number
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Description
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10.19*
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Amended
and Restated Employment Agreement dated June 14, 2007, between Paul E.
Avery and OSI Restaurant Partners, LLC. (included as an exhibit to
Registrant’s Form S-4 filed on May 9, 2008 and incorporated herein by
reference)
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10.20*
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Employment
Agreement dated June 14, 2007, between Robert D. Basham and OSI Restaurant
Partners, LLC (included as an exhibit to Registrant’s Form S-4 filed
on May 9, 2008 and incorporated herein by reference)
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10.21*
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Employment
Agreement dated June 14, 2007, between Chris T. Sullivan and OSI
Restaurant Partners, LLC. (included as an exhibit to Registrant’s Form S-4
filed on May 9, 2008 and incorporated herein by
reference)
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10.22*
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Officer
Employment Agreement dated January 23, 2008 and effective April 12, 2007
by and among Jeffrey S. Smith and Outback Steakhouse of Florida, LLC
(included as an exhibit to Registrant’s Form S-4 filed on May 9, 2008 and
incorporated herein by reference)
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10.23*
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Officer
Employment Agreement amended November 1, 2006 and effective April 27,
2000, by and among Steven T. Shlemon and Carrabba’s Italian Grill, Inc.
(included as an exhibit to OSI Restaurant Partners, Inc.’s Current
Report on Form 8-K filed November 7, 2006 and incorporated herein by
reference)
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10.24*
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Officer
Employment Agreement amended November 10, 2006 and effective January 1,
2002, by and among Michael W. Coble and Outback Steakhouse International,
Inc. (included as an exhibit to OSI Restaurant Partners,
Inc.’s Current Report on Form 8-K filed November 13, 2006 and
incorporated herein by reference)
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10.25*
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Officer
Employment Agreement made and entered into effective August 1, 2001, by
and among John W. Cooper and Bonefish Grill, Inc. (filed with the 2008
10-K)
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10.26*
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Assignment
and Amendment and Restatement of Officer Employment Agreement made and
entered into March 26, 2009 and effective as of February 5, 2008, by and
among Jody Bilney and Outback Steakhouse of Florida, LLC and OSI
Restaurant Partners, LLC (filed with the 2008 10-K)
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10.27*
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Amended
and Restated Officer Employment Agreement made and entered into March 27,
2009 and effective as of February 5, 2008, by and among Richard Renninger
and OSI Restaurant Partners, LLC (filed with the 2008 10-K)
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10.28*
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Amendment
to Employment Agreement effective as of January 1, 2009 by and between OSI
Restaurant Partners, LLC and A. William Allen III (filed with the 2008
10-K)
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10.29*
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Amendment
to Employment Agreement effective as of January 1, 2009 by and between OSI
Restaurant Partners, LLC and Dirk A. Montgomery (filed with the 2008
10-K)
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10.30*
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Amendment
to Employment Agreement effective as of January 1, 2009 by and between OSI
Restaurant Partners, LLC and Joseph J. Kadow (filed with the 2008
10-K)
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6
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Number
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Description
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10.31*
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Amendment
to Employment Agreement effective as of January 1, 2009 by and between OSI
Restaurant Partners, LLC and Paul E. Avery (filed with the 2008
10-K)
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10.32*
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Amendment
to Employment Agreement effective as of January 1, 2009 by and between OSI
Restaurant Partners, LLC and Robert D. Basham (filed with the 2008
10-K)
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10.33*
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Amendment
to Employment Agreement effective as of January 1, 2009 by and between OSI
Restaurant Partners, LLC and Chris T. Sullivan (filed with the 2008
10-K)
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10.34*
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Amendment
to Employment Agreement effective as of January 1, 2009 by and between OSI
Restaurant Partners, LLC and Jeffrey S. Smith (filed with the 2008
10-K)
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10.35*
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OSI
Restaurant Partners, LLC HCE Deferred Compensation Plan effective October
1, 2007 (filed with the 2008 10-K)
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10.36*
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Split
Dollar Agreement dated August 8, 2008 and effective March 30, 2006, by and
between OSI Restaurant Partners, LLC (formerly known as Outback
Steakhouse, Inc.) and William A. Allen (filed with the 2008
10-K)
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10.37*
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Split
Dollar Agreement dated August 12, 2008, by and between OSI Restaurant
Partners, LLC (formerly known as Outback Steakhouse, Inc.) and Dirk A.
Montgomery, Trustee of the Dirk A. Montgomery Revocable Trust dated April
12, 2001 (filed with the 2008 10-K)
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10.38*
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Split
Dollar Agreement dated August 12, 2008 and effective March 30, 2006, by
and between OSI Restaurant Partners, LLC (formerly known as Outback
Steakhouse, Inc.) and Joseph J. Kadow (filed with the 2008
10-K)
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10.39*
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Split
Dollar Agreement dated August 14, 2008 and effective August 2005, by and
between OSI Restaurant Partners, LLC (formerly known as Outback
Steakhouse, Inc.) and Nelson R. Avery, Trustee of the Paul E. Avery
Irrevocable Trust dated February 19, 1999 (filed with the 2008
10-K)
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10.40*
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Split
Dollar Agreement dated August 19, 2008 and effective August 2005, by and
between OSI Restaurant Partners, LLC (formerly known as Outback
Steakhouse, Inc.) and Richard Danker, Trustee of Robert D. Basham
Irrevocable Trust Agreement of 1999 dated December 20, 1999 (filed with
the 2008 10-K)
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10.41*
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Split
Dollar Agreement dated December 18, 2008 and effective August 18, 2005, by
and between OSI Restaurant Partners, LLC (formerly known as Outback
Steakhouse, Inc.) and Shamrock PTC, LLC, Trustee of the Chris Sullivan
2008 Insurance Trust dated July 17, 2008 and William T. Sullivan, Trustee
of the Chris Sullivan Non-exempt Irrevocable Trust dated January 5, 2000
and the Chris Sullivan Exempt Irrevocable Trust dated January 5, 2000
(filed with the 2008 10-K)
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7
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Number
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Description
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10.42
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ISDA
Master Agreement dated as of September 11, 2007 between Wachovia Bank,
National Association and OSI Restaurant Partners, LLC (included as an
exhibit to Registrant’s Form S-4 filed on May 9, 2008 and incorporated
herein by reference)
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10.43
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Credit
Agreement dated as of June 14, 2007 among OSI Restaurant Partners,
LLC, as Borrower, OSI Holdco, Inc., the lenders from time to time party
thereto, Deutsche Bank AG New York Branch, as Administrative Agent,
Pre-Funded RC Deposit Bank, Swing Line Lender and an L/C Issuer, Bank of
America, N.A., as Syndication Agent, and General Electric Capital
Corporation, SunTrust Bank, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A. “Rabobank International,” New York Branch,
LaSalle Bank, N.A., Wachovia Bank, N.A. and Wells Fargo Bank, N.A., as
Co-Documentation Agents (included as an exhibit to Registrant’s Form S-4
filed on May 9, 2008 and incorporated herein by
reference)
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10.44
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Master
Lease Agreement, dated as of the 14th day of June, 2007, between Private
Restaurant Properties, LLC, as landlord, and Private Restaurant Master
Lessee, LLC, as tenant (included as an exhibit to Registrant’s Form S-4
filed on May 9, 2008 and incorporated herein by
reference)
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21.01
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List
of Subsidiaries (filed with the 2008
10-K)
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31.1
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Certification
of Chief Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 (filed with the 2008
10-K)
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31.2
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Certification
of Chief Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002 (filed with the 2008
10-K)
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31.3
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Certification
of Chief Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
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31.4
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Certification
of Chief Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
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32.1
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Certification
of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 20021 (filed
with the 2008 10-K)
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32.2
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Certification
of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 20021 (filed
with the 2008 10-K)
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*
Management contract or compensatory plan or arrangement required to be filed as
an exhibit.
1 These
certifications are not deemed to be “filed” for purposes of Section 18 of the
Exchange Act, or otherwise subject to the liability of that section. These
certifications will not be deemed to be incorporated by reference into any
filing under the Securities Act or the Exchange Act, except to the extent that
the registrant specifically incorporates them by reference.
The
registrant hereby undertakes to furnish supplementally a copy of any omitted
schedule or other attachment to the Securities and Exchange Commission upon
request.
8
SIGNATURE
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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Date:
April 27, 2009
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OSI
Restaurant Partners, LLC
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By: /s/ Dirk A.
Montgomery
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Dirk
A. Montgomery
Senior
Vice President and Chief Financial Officer
(Principal
Financial and Accounting Officer)
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9