RUTH » Topics » RECITALS:

These excerpts taken from the RUTH 10-K filed Jun 25, 2009.

RECITALS

A. Mortgagor, certain lenders and Mortgagee, as administrative agent, are parties to that certain First Amended and Restated Credit Agreement dated as of February 19, 2008, and that certain First Amendment to First Amended and Restated Credit Agreement dated as of February __, 2009, pursuant to which Mortgagee and Lenders have made certain commitments, subject to the terms and conditions set forth therein, to extend certain credit facilities to Mortgagor (said First Amended and Restated Credit Agreement, together with the First Amendment to First Amended and Restated Credit Agreement, as it may hereafter be further amended, restated, supplemented, renewed, replaced or otherwise modified from time to time, the “Credit Agreement”).

B. Mortgagor may from time to time enter, or may from time to time have entered, into one or more swap agreements (collectively, the “Swap Agreements”) with one or more Persons that are Lenders or Affiliates of Lenders (in such capacity, collectively, the “Swap Counterparties”) at the time such Swap Agreements are entered into in accordance with the terms of the Credit Agreement.

C. Pursuant to the Credit Agreement, in order to induce Mortgagee and Lenders to make Loans and other extensions of credit under the Credit Agreement and the Swap Counterparties to enter into the Swap Agreements, Mortgagor has agreed to execute and deliver this Mortgage.


Recitals

WHEREAS, Assignee has acquired the Acquired Assets (as defined in the Asset Purchase Agreement (“APA”) dated                  , 200  , by and between Assignor’s company, Cameron Mitchell Restaurants, LLC and Assignee) and in connection therewith desires to obtain certain perpetual rights with respect to Assignor’s personal name “Mitchell” to facilitate Assignee’s business activities after consummation of the APA; and

WHEREAS, Assignor is willing to transfer such naming rights to Assignee without separate compensation upon the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the foregoing, of the mutual covenants herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Recitals

FACE="Times New Roman" SIZE="2">WHEREAS, Assignee has acquired the Acquired Assets (as defined in the Asset Purchase Agreement (“APA”) dated                  ,
200  , by and between Assignor’s company, Cameron Mitchell Restaurants, LLC and Assignee) and in connection therewith desires to obtain certain perpetual rights with respect to Assignor’s personal name “Mitchell” to
facilitate Assignee’s business activities after consummation of the APA; and

WHEREAS, Assignor is willing to transfer such naming
rights to Assignee without separate compensation upon the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the
foregoing, of the mutual covenants herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

STYLE="margin-top:24px;margin-bottom:0px" ALIGN="center">Terms

1. Incorporation;
Terms:
The foregoing recitals are incorporated herein as part of this Agreement. When in this Agreement reference is made to “parties,” such reference shall mean all of the entities or individuals executing this Agreement.


2. Name Rights Assignment.

a.
“Mitchell”: Assignor hereby irrevocably and in perpetuity, assigns to Assignee all personal, publicity, ownership or other rights of all kinds, along with the associated goodwill, in and to his name “Mitchell” (including
any stylistic presentation or possessive/plural-possessive form) for the sole purpose of Assignee’s future exploitation and use in connection with the provision of restaurant, lounge, catering or food services of any kind and scope worldwide,
such exploitation and use to include, without limitation, (i) marketing, promotion or advertisement in any form of such services; (ii) trademark, service mark or trade name use and







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federal, state or foreign registration in any class related to or associated with such services or the promotion or advertisement of same; and (iii) as
part or the subject of a copyright claim, use or registration. To the extent required, this assignment shall and does constitute Assignor’s informed written permission and consent for registration by Assignee of the name “Mitchell”
(or any stylistic presentation or possessive/plural-possessive form thereof) as a trade or service mark under Section 2(c) of the Lanham Act (15 U.S.C. § 1052(c)) or any successor statute, as well as any foreign or state trade mark laws
requiring such permission or consent.

b. “Cameron”: Assignor hereby irrevocably and in perpetuity, assigns to Assignee
all personal, publicity, ownership or other rights of all kinds, along with the associated goodwill, in and to his name “Cameron” (including any stylistic presentation or possessive/plural-possessive form) for the sole purpose of
Assignee’s future exploitation and use in connection with the provision of “steakhouse and seafood restaurant services” worldwide, such exploitation and use to include, without limitation, (i) marketing, promotion or
advertisement in any form of such services; (ii) trademark, service mark or trade name use and federal, state or foreign registration in any class related to or associated with such services or the promotion or advertisement of same; and
(iii) as part or the subject of a copyright claim, use or registration. To the extent required, this assignment shall and does constitute Assignor’s informed written permission and consent for registration by Assignee of the name
“Cameron” (or any stylistic presentation or possessive/plural-possessive form thereof) as a trade or service mark under Section 2(c) of the Lanham Act (15 U.S.C. § 1052(c)) or any successor statute, as well as any foreign or
state trade mark laws requiring such permission or consent.

c. “M. Cameron Mitchell” and “Cameron Mitchell”:
Assignor and Assignee acknowledge and agree that nothing in this Agreement prohibits or precludes Assignor from using his legal name “M. Cameron Mitchell” or “Cameron Mitchell” in accordance with the provisions of
Section 6.12(e) of the APA.

3. Representations, Warranties and Covenants of Assignor: Assignor hereby represents, warrants and
covenants to Assignee as follows:

a. Authority. Assignor is of the full age of majority and possesses all necessary authority and
capacity to assign the rights herein. No other action, approval or authority is required to authorize the assignment contemplated hereby.

SIZE="2">b. Ownership of Name. Assignor is the owner of the name “Mitchell” and “Cameron” and Assignor has used the names in connection with the restaurants being acquired by Assignee in the APA. Assignor is not a party to
any agreement which curtails, precludes or otherwise prevents the assignment herein, and has not previously assigned, transferred, conveyed or otherwise disposed of the rights granted in Section 2 hereof to any third party. Assignor has not
previously filed and does not now have pending any request or application to change or modify his name. Assignor has no knowledge of prior disputes or litigation concerning Assignor’s right to use “Mitchell” or “Cameron” as
his personal name or as a trademark, service mark, or trade name.

c. Cooperation; No Interference. Except for those limited and
specific non-exclusive license rights granted by Assignee to Assignor in the Non-Exclusive Licenses dated







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            , 2007 which permit use of the name “Mitchell” in association with
Mitchell’s Ocean Club, Cameron Mitchell Restaurants, LLC, and Cameron Mitchell Catering Company and the domain names www.cameronmitchell.com, www.mitchellsoceanclub.com, and www.cameronmitchellcatering.com, Assignor shall
not take any action, regardless of method or forum, which interferes with, infringes upon the rights granted herein or otherwise limits the assignment granted hereby. Assignor shall not file any opposition, challenge or protest against registration
of the name “Mitchell” or “Cameron” by Assignee or Assignee’s successor consistent with the purposes specified in Section 2. Assignor further agrees to reasonably cooperate with Assignee in Assignee’s endeavors to
protect and/or preserve the name “Mitchell” and “Cameron” in association herewith, and, if and when requested, to execute any other lawful document deemed necessary by Assignee in the future to carry out the purposes of this
Agreement, all without charge or compensation.

4. Representations and Warranties of Assignee. Assignee hereby represents and
warrants to Assignor that all necessary and lawful actions to authorize the execution of this Agreement on behalf of Assignee have been taken, and the officer whose signature is affixed hereto on behalf of Assignee is authorized to legally bind the
company to the terms of this Agreement.

5. Injunctive Relief. In addition to any and all legal or equitable rights of Assignee to
enforce the provisions of this Agreement, Assignee shall be entitled to entry of a judgment granting preliminary injunctive relief from any activity that constitutes a breach of Assignor’s obligations in Section 3(c) hereof upon the filing
of a request for same in a court of law with proper jurisdiction, and this Agreement and an affidavit by Assignee alleging the nature of the breach of same shall be sufficient and complete evidence that the legal factors for grant of such relief are
met. Assignee hereby waives any objection to the initiation of a request for or issuance of such preliminary injunctive relief.

6.
Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If, moreover, any one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.

7. Waiver. The failure of a party to prosecute its rights with respect to a default or breach hereunder shall not constitute a
waiver of the right to enforce its rights with respect to the same or any breach.

8. Headings. Captions and headings contained in
this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.

SIZE="2">9. Change; Modification. No change or modification of this Agreement shall be valid or binding unless the same is in writing and signed by the party intended to be bound. No waiver of any provision of this Agreement shall be valid
unless the same is in writing and signed by the party against whom such waiver is sought to be enforced.







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10. Benefit; Assignment: This Agreement shall benefit and be binding upon the parties and
their respective heirs, personal and legal representatives, successors and assigns. Assignee shall have the right to assign this Agreement without prior consent of Assignor. Assignor may not assign this Agreement.

STYLE="margin-top:12px;margin-bottom:0px; text-indent:4%">11. Governing Law: This Agreement shall be governed in accordance with the laws of the State of Ohio, except with respect to the conflict of laws
provisions thereof.

IN WITNESS WHEREOF, Assignor and Assignee have duly executed this Agreement as of the day and year set forth below.

 






















Assignor   Assignee
M. Cameron Mitchell   Ruth’s Chris Steak House, Inc.

 


































By: 

 

  By: 

 

 M. Cameron Mitchell   Craig Miller, President

Recitals

WHEREAS, pursuant to that certain Asset Purchase Agreement dated             , 200     (the “Purchase Agreement”), executed by and among Purchaser, Seller, 1245 Properties, LLC, and M. Cameron Mitchell, Purchaser has acquired all the Acquired Assets from the Seller.

WHEREAS, as an inducement to Purchaser to purchase the Acquired Assets, Seller agreed to enter into this Agreement.

Recitals

WHEREAS, pursuant to that certain Asset Purchase Agreement dated             , 200     (the “Purchase Agreement”), executed by and among Cameron Mitchell Restaurants, LLC (the “Seller”), Consultant, 1245 Properties, LLC, and Purchaser, the Purchaser has acquired all the Acquired Assets from the Seller.

WHEREAS, as an inducement to Purchaser to purchase the Acquired Assets, Purchaser desires to obtain the consulting services of Consultant and Consultant is agreeable to entering into this Agreement.

RECITALS

WHEREAS, Assignee and Assignor have entered into that certain Asset Purchase Agreement dated                     , 2007 (the “Asset Purchase Agreement”).

WHEREAS, pursuant to the Asset Purchase Agreement, Assignor has agreed to assign all of its right, title, and interest to that certain lease (the “Lease”) of the property described on Schedule 1 attached hereto and the improvements located thereon (collectively, the “Premises”) and Assignee desires to assume the Lease, a complete copy of the Lease, together with all amendments, exhibits, supplements and modifications and most current rules and regulations, if any, is attached hereto as Schedule 2.

WHEREAS, Assignor and Assignee intend to enter into that certain Assignment of Lease (the “Assignment”), pursuant to which Assignor will transfer to Assignee, all of Assignor’s right, title and interest in and to the Lease and the Premises subject to all of the payments, terms, covenants, obligations, agreements, and restrictions set forth in the Assignment.

WHEREAS, Assignor and Assignee have requested that the Landlord provide an estoppel certificate and consent to the Assignment, and the Landlord has agreed to such request on the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the foregoing, and for good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, Landlord hereby certifies and agrees as follows:

1. Certifications.

(a) Landlord certifies that Landlord is the landlord under the Lease and that the Lease is legal, valid, binding, and enforceable against Landlord in accordance with its terms. The Lease has not been modified, changed, altered, supplemented, or amended in any respect, nor have any provisions thereof been waived.

(b) Landlord certifies that the Lease is valid and in full force and effect on the date hereof. Landlord does not have any agreements including, without limitation, any options, rights of first refusal, or similar arrangements with Assignor pertaining to the Lease or the Premises, other than the Lease.

 


(c) Landlord certifies that Assignor is the current lessee under the Lease. The rent and other sums due and payable under the Lease have been paid through the date of this Agreement. No event has occurred and no condition exists that constitutes, or that would constitute with the giving of notice or the lapse of time or both, a default by Landlord or, to the knowledge of Landlord, by Assignor under the Lease. To the knowledge of Landlord, Landlord has no existing defenses or offsets against the enforcement of the Lease by Assignor.

(d) Landlord certifies that the Lease is assignable to Assignee and hereby consents and agrees to Assignor’s assignment of its right, title, and interest in and to the Lease and the Premises to Assignee, its successors or assigns and certifies that the Lease will continue to be legal, valid, binding, and enforceable against Landlord or identical terms following the Closing (as defined in the Asset Purchase Agreement).

(e) Landlord certifies that no default or breach exists on the part of the Assignor, nor does any circumstance currently exist that, but for the giving of notice or the passage of time or both, would constitute such a breach or default or permit the termination or modification of the Lease.

(f) Landlord certifies that it has sent no notices of termination to Assignor nor does Landlord intend to cancel or terminate the Lease or exercise any options thereunder.

(g) Landlord certifies that there have been no disputes, oral agreement(s), temporary waivers, or forbearances in effect as to the Lease nor has Landlord or, to the best of Landlord’s knowledge, any other party to the Lease repudiated any provision thereof.

2. Authority. Landlord represents, warrants and acknowledges that Landlord has full power and authority to execute and deliver this Agreement as the only party constituting the lessor under the Lease.

3. Further Assurances/Cooperation. At any time until such time as all licenses and permits necessary to operate the Premises as a full service restaurant with on-premises alcoholic beverage consumption (“the Licenses”) as conducted on the date hereof have been issued to Assignee, at Assignee’s request and without further consideration, Landlord agrees to cooperate with Assignee and provide any and all consents, including written consents and acknowledgements, in a timely manner, as may be required by any governing authorities as a condition of approval for the issuance of the Licenses.

[FOR BIRMINGHAM LANDLORD: Landlord further agrees to take all commercially reasonable measures to assist Assignee and Assignor in transferring Assignor’s interest in Michigan Liquor Control Commission Class C License No. 117586 and to cause Assignee to be a co-licensee on said license.]


4. The Asset Purchase Agreement. Nothing contained in this Agreement shall be deemed to supersede any of the obligations, agreements, covenants, or warranties of Assignee or Assignor contained in the Asset Purchase Agreement.

5. Modification. This Agreement may not be modified except by an agreement in writing signed by Landlord, Assignee, and Assignor, or their respective successors in interest or assigns, and identified as an amendment to this Agreement. Purchaser may assign some or all of its rights, interests and obligations pursuant to this Agreement to one or more of its subsidiaries without the consent of the other parties hereto; provided that Purchaser shall remain liable for its obligations hereunder. This Agreement shall inure to the benefit of and be binding upon Landlord, Assignee, and Assignor, and their respective heirs, representatives, successors, and assigns.

6. Notices. Effective on the Closing Date (as defined in the Asset Purchase Agreement), Landlord agrees to send all notices and other correspondence to Assignor delivered under the Lease to Assignee in the same manner at the following address:

Ruth’s Chris Steak House, Inc.

500 International Pkwy, Suite 100

Heathrow, Florida 32746

Facsimile: (407) 833-9625

Attention: Thomas E. O’Keefe, Senior Vice President/General Counsel

7. Closing Date Notification. The Closing Date is anticipated to be on or about                     , 200    . Assignor will inform you of the Closing Date when that information is available.

8. Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Ohio.

9. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

10. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

(Signatures on follow page)


IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written above.

 

LANDLORD:
By:  

 

Name:  

 

Title:  

 


Recitals

WHEREAS, Assignor has created, developed and otherwise produced various concepts for restaurants, specifically for a fish restaurant called “Mitchell’s Fish Market” and “Columbus Fish Market” and a steak house called “Mitchell’s Steakhouse” and “Cameron’s Steakhouse” (the “Concepts”) and in doing so has created various items of Intellectual Property, including the Concepts themselves, as that term is defined herein;

WHEREAS, in accordance with that certain Restaurant Concept Development Agreement dated as of February 1998 by and between Assignor and Assignee (the “Restaurant Concept Agreement”), which sets forth that the Concepts developed by Assignor inure to the benefit of and shall, when necessary, be formally transferred to Assignee, Assignor now wishes to formally assign and transfer all right, title, ownership and accompanying good will in the Intellectual Property, including but not limited to the concepts, the trademarks, service marks, trade names, trade dress, copyrights, trade secrets, and patents therein, to Assignee for its sole ownership and exclusive use without further action or payment on Assignee’s part, wherever and to the extent that such full or partial rights in the Intellectual Property are still held by Assignor; and

NOW THEREFORE, in consideration of the foregoing, of the mutual covenants herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

This excerpt taken from the RUTH 10-Q filed May 3, 2006.

RECITALS:

A. Mr. Moran and Ms. Moran were married on or about July 9, 1955 in Milwaukee, Wisconsin.

B. Pursuant to that certain Matrimonial Regime Agreement entered into on October 17, 2005 (the “Matrimonial Regime Agreement”), Mr. Moran and Ms. Moran established a regime of separation of property as allowed by Louisiana Civil Code Article 2370 et seq..

C. Pursuant to that certain Asset Purchase Agreement (the “Asset Purchase Agreement”), the Company, Mr. Moran, and certain entities directly or indirectly owned 100% by Mr. Moran, agreed that, subject to the terms and conditions set forth therein, the Company or its designee shall purchase the assets and properties set forth on Schedule 1 hereto (the “Purchased Assets”) and contemporaneous with the execution and delivery of this Consent ownership and possession of the Purchased Assets shall be conveyed and delivered to the Company or its designees or assignees.

D. As a condition to consummating the transactions contemplated by the Asset Purchase Agreement and its obligation to purchase the Purchased Assets, the Company requires Mr. Moran and the Moran Children (collectively, the “Moran Parties”) to execute and deliver this Consent to the Company.

NOW THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

(1) Consent and Release. Each of the Moran Children hereby consents to the sale of the Purchased Assets to the Company or its designees or assignees and as to the Company, the subsidiaries and affiliates of the Company and each of their respective officers, directors, employees and agents (collectively, the “Company Parties”), each of the Moran Children hereby (a) releases, disclaims, and quitclaims any and all rights, interests and benefits which any of them

 

Exhibit G


has or may have in and to the Purchased Assets, including, without limitation, any and all such rights, interests and benefits in respect of the Purchased Assets arising under or in connection with the Matrimonial Regime Agreement, and each of the Moran Children acknowledge and agree that 100% of the ownership interest in the Purchased Assets is held by the Company or its designees or assignees, free and clear of any claim by them, and (b) releases and forever discharges any and all claims, demands, rights of action which each of them may have against any of the Company Parties with respect to the Purchased Assets and the sale thereof in accordance with the terms and conditions of the Asset Purchase Agreement.

(2) Representations and Warranty. Each of the Moran Parties represents and warrants to the Company, that, to the best of their knowledge, there are no other children of Mr. Moran and Ms. Moran. Mr. Moran represents and warrants to the Company (a) that he has been married only one time and then to Ms. Moran and (b) the Matrimonial Regime Agreement has not been amended, supplemented or otherwise modified since the date it was entered into.

(3) Severability. Whenever possible, each provision of this Consent shall be interpreted in such a manner as to be effective and valid under Louisiana law, but if any provision shall be prohibited by or be invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Consent.

(4) Governing Law. This Consent shall in all respects be construed in accordance with and governed by the substantive laws of the State of Louisiana without reference to its choice of law rules.

(5) Counterparts. This Consent may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.

[Signatures appear on the following page.]

 

Exhibit G


IN WITNESS WHEREOF, each of the parties hereto has caused this Consent to be executed as of the date first above written.

 

RUTH’S CHRIS STEAK HOUSE, INC.
By:     
Name:  
Title:  
   
Thomas J. Moran, Jr.
   
Erin Sue Moran Thrash
   
Elizabeth Butterfield Moran Vance
   
Megan Kathleen Moran
   
Kathleen Andrews Moran Jensen
   
Burke Thomasson Moran

 

Exhibit G

Signature Page

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