-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F0Eg7TzJ8RXLWknf3Zhoof68gyPrR47l+tjWtyXMZx41m1QEBvBYViX+L6wd1Y5+ W+07DT3tPMhRbCcgvOvguQ== 0000891554-97-000291.txt : 19970321 0000891554-97-000291.hdr.sgml : 19970321 ACCESSION NUMBER: 0000891554-97-000291 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19970320 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FAMILY STEAK HOUSES OF FLORIDA INC CENTRAL INDEX KEY: 0000784539 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 592597349 STATE OF INCORPORATION: FL FISCAL YEAR END: 1228 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-38304 FILM NUMBER: 97559936 BUSINESS ADDRESS: STREET 1: 2113 FLORIDA BLVD STREET 2: STE A CITY: NEPTUNE BEACH STATE: FL ZIP: 32266 BUSINESS PHONE: 9042494197 MAIL ADDRESS: STREET 2: 2113 FLORIDA BLVD STE A CITY: NEPTUNE BEACH STATE: FL ZIP: 32266 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FAMILY STEAK HOUSES OF FLORIDA INC CENTRAL INDEX KEY: 0000784539 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 592597349 STATE OF INCORPORATION: FL FISCAL YEAR END: 1228 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 2113 FLORIDA BLVD STREET 2: STE A CITY: NEPTUNE BEACH STATE: FL ZIP: 32266 BUSINESS PHONE: 9042494197 MAIL ADDRESS: STREET 2: 2113 FLORIDA BLVD STE A CITY: NEPTUNE BEACH STATE: FL ZIP: 32266 SC 14D9/A 1 AMENDMENT NO. 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 14D-9 SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 FAMILY STEAK HOUSES OF FLORIDA, INC. (Name of Subject Company) FAMILY STEAK HOUSES OF FLORIDA, INC. (Name of Person(s) Filing Statement) COMMON STOCK OF $.01 PAR VALUE (Title of Class of Securities) 307059-1-05 (CUSIP Number of Class of Securities) Lewis E. Christman, Jr. President and Chief Executive Officer Family Steak Houses of Florida, Inc. 2113 Florida Boulevard Neptune Beach, Florida 32266 (904) 249-4197 (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications on Behalf of the Person(s) Filing Statement) ITEM 1. SECURITY AND SUBJECT COMPANY. The name of the subject company is Family Steak Houses of Florida, Inc., a Florida corporation (the "Company"). The address of the principal executive office of the Company is 2113 Florida Boulevard, Neptune Beach, Florida 32266. The title of the class of equity security to which this statement relates is common stock, $.01 par value (the "Shares"), of the Company. ITEM 2. TENDER OFFER OF THE BIDDER. This statement relates to the tender offer disclosed in the Schedule 14D-1, dated March 6, 1997 (the "Schedule 14D-1"), of Bisco Industries, Inc., an Illinois corporation (the "Bidder"), to purchase for cash up to 2,600,000 of the Shares at $.90 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 6, 1997, and in the related Letter of Transmittal (collectively, the "Offer"). The Offer is conditioned upon, among other things, the Bidder being satisfied, in its sole discretion, that Section 607.0902 of the Florida Business Corporation Act (the "Control Share Act") shall be inapplicable to the Offer, or the Bidder otherwise being satisfied that the Control Share Act will not deny voting rights to the Shares acquired by the Bidder pursuant to the Offer. The Schedule 14D-1 states that the principal executive offices of the Bidder are located at 704 W. Southern Avenue, Orange, California 92665. ITEM 3. IDENTITY AND BACKGROUND. (a) The name and business address of the Company, which is the person filing this statement, are set forth in Item 1 above. (b) Information relating to certain contracts, agreements, arrangements, understandings and relationships between the Company and its executive officers, directors or affiliates is set forth in the sections entitled "Security Ownership of Certain Beneficial Owners and of Management", "Director Compensation", "Election of Directors", and "Employment Agreements" of the Company's Proxy Statement dated May 1, 1996, for its Annual Meeting of Shareholders held on June 18, 1996. A copy of such Proxy Statement is filed as Exhibit 1 hereto, and the portions of such Proxy Statement referred to above are incorporated herein by reference. On December 30, 1996, the Company executed an employment agreement with Lewis E. Christman, Jr., for a term ending on June 19, 1998 pursuant to which Mr. Christman agreed to serve as Chief Executive Officer of the Company for an annual salary of $130,000 in addition to medical, disability and other benefits in accordance with Company policy, such stock options as may be granted by the Board of Directors from time to time and a bi-annual automobile allowance. A copy of such employment agreement is included as Exhibit 2 and is hereby incorporated by reference. On October 1, 1996, the Company entered into a two year employment agreement with Edward B. Alexander pursuant to which he agreed to serve as the Company's Chief Financial Officer and Treasurer for an annual salary of $90,000 plus benefits in accordance with Company policy and such stock options as may be granted by the Board of Directors from time to time. A copy of such employment agreement is included as Exhibit 3 and hereby is incorporated by reference. On January 8, 1997, the Company entered into a consulting agreement with Robert J. Martin, a director of the Company, in connection with his retirement as an officer of the Company. Under the consulting agreement, the Company has retained Mr. Martin to provide advice and assistance with the Company's business for one year for a retainer of $13,500 and continued medical and other insurance benefits. Also under this agreement, Mr. Martin agreed to refrain from being engaged or taking part in or rendering services or advice to, directly or indirectly, any entity in the family steakhouse or family cafeteria style restaurant until January 7, 2000. Mr. Martin further agreed not to interfere with, or take certain other actions with respect to, the Company's business relationships with its franchisor, lenders, customers, employees, consultants or advisors until after January 7, 2000. A copy of such consulting agreement is included as Exhibit 4 and hereby is incorporated by reference. Under the Company's Amended Employee Stock Option Plan and option agreements executed thereunder, certain executive officers have been granted options that become immediately exercisable if a person or persons acting together for the purpose of acquiring Shares acquire beneficial ownership (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of 33% or more of the outstanding Shares. Similarly, the Company's Long Term Incentive Plan provides that options granted thereunder will become immediately exercisable upon the earliest of the following events: (i) the Company acquires actual knowledge that any person has become the beneficial owner directly or indirectly of 25% or more of the combined voting power of the Shares, (ii) the first purchase of Shares pursuant to a tender or exchange offer (other than a tender or exchange offer made by the Company); (iii) shareholder approval of a merger or consolidation of the Company (other than a merger or consolidation in which the Company is the surviving corporation and which does not result in any change in the Shares), the sale or disposition of all or substantially the Company's assets or a plan of liquidation or dissolution of the Company; or (iv) the Board or a designated committee in its sole discretion determines that a person (other than a person who exercised a controlling influence as of the Long Term Incentive Plan's effective date) directly or indirectly exercises a controlling influence over the management or policies of the Company. The executive officers holding affected options, the number of affected shares and the exercise price thereof are as follows: - 2 - Number of Shares That Would Become Exercisable under Name Exercise Price These Provisions - ---- -------------- ---------------- Lewis E. Christman, Jr. $.40 2 100,000 Edward B. Alexander $.25 1 5,000 $.40 2 25,000 $.75 1 12,000 $.5625 2 10,000 Michael J. Walters $.25 1 4,500 $.75 1 8,250 $.5625 2 10,000 Robert J. Martin $.25 1 5,000 $.40 2 25,000 $.75 1 12,000 $.5625 2 10,000 1 Options granted under the Amended Employee Stock Option Plan. 2 Options granted under the Long Term Incentive Plan. In addition to the foregoing options, the executive officers of the Company have other option grants at varying exercise prices that are currently vested and exercisable at this time. As described in its press release dated December 19, 1996, the Company closed on a $15,360,000 long-term refinancing of its senior debt provided by Franchise Finance Corporation of America ("FFCA"). The forms of Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing between the Company and FFCA Mortgage Corporation (the "Mortgagee") entered into in connection with this refinancing include a provision under which the Mortgagee may declare the obligations under such agreements immediately due and payable upon certain transfers of the mortgaged property by the Company without the Mortgagee's consent. Prohibited transfers include if the Company is party to a merger or a voluntary or involuntary sale, conveyance, transfer or pledge of the Company's stock pursuant to which an aggregate of more than 25% of its stock is vested in a party or parties who were not shareholders as of the date of such agreement, December 18, 1996. There can be no assurance that the Mortgagee will not deem consummation of the Offer as triggering its ability to declare the Company's obligations immediately due and payable under this provision or whether the Mortgagee will grant its consent to the Offer. This summary is qualified in its entirety by reference to the form of Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing attached hereto as Exhibit 5 and incorporated herein by reference. - 3 - The Company leases a restaurant in Spring Hill, Hernando County, Florida, one of its top restaurants in terms of net sales revenues, under a lease agreement dated September 18, 1996 between the Company and CNL American Properties Fund (the "Landlord"). This lease agreement provides that a change in the ownership of the controlling interest of the Company constitutes an assignment of the lease for which the Company must obtain the Landlord's prior written consent, which the Landlord may not unreasonably withhold. The lease agreement provides that the Landlord may withhold consent, without being deemed unreasonable, to any proposed assignment where (i) the financial capacity of the assignee or subtenant is materially less than that of the Company, (ii) the assignee or subtenant does not intend to operate a nationally or regionally recognized restaurant on the premises or (iii) the type of restaurant or the operating history of the assignee or subtenant or of the type of restaurant proposed reflects an inability to generate gross sales or potential sales growth equal to that of the Company. There can be no assurance that the Offer will not trigger this provision or that the Landlord will provide its prior written consent. This summary is qualified in its entirety by reference to this lease agreement which was filed as Exhibit 10.02 to the Company's Form 10-Q for the fiscal quarter ended October 2, 1996 and incorporated herein by reference. Except as set forth above in this Item 3, to the knowledge of the Company, there are no other material contracts, agreements, arrangements or undertakings and no actual or potential conflicts of interest, between the Company and (i) its executive officers, directors or affiliates, or (ii) the Bidder, its executive officers, directors or affiliates. ITEM 4. THE SOLICITATION OR RECOMMENDATION. (a)-(b) Background. On December 26, 1996, the Bidder, the Bisco Industries, Inc. Profit Sharing and Savings Plan and Glen F. Ceiley, President and a director of the Bidder, filed a Schedule 13D with the Securities and Exchange Commission (the "Commission") to report ownership of more than five percent (5%) of the Shares. On December 30, 1996, Mr. Ceiley sent the Company a shareholder proposal for inclusion in the Company's proxy statement for the 1997 Annual Meeting of Shareholders, proposing that the Company's shareholders adopt an amendment to the Company's Articles of Incorporation to provide that the Control Share Act would not apply to control share acquisitions of the Shares (the "Proposal"). On January 16, 1997, the Schedule 13D was amended to reflect that the Bidder and affiliates owned 6.1% of the Shares. In late January 1997, Lewis E. Christman, Jr., the Company's President and Chief Executive Officer, telephoned Mr. Ceiley and invited him to attend the next meeting of the Board. On February 11, 1997, Mr. Ceiley attended a Board meeting, during which he discussed his intentions in acquiring Shares and attended a presentation on the Company's operational results for the fourth quarter. Mr. Ceiley also indicated to the Board that he was considering possible business combinations but had no definitive plans at that time. Mr. Ceiley stated that he believed the management of the Company was doing many things right and that he had become interested in the Company because he was seeking a small cap investment that would offer a good growth - 4 - return. Mr. Ceiley told the Board that he was interested in acquiring additional Shares but would not seek a more active role in the management of the Company. In the Offer, the Bidder states that its strategies for the Company could include, among other things, the disposition by the Company of its restaurant operations or other changes in the Company's business, corporate structure, capitalization, operation or management. After Mr. Ceiley left this February meeting, the Board of Directors, among other things, considered and approved the adoption of a shareholder rights plan, subject to the review and execution of such plan by the rights agent, with a record date of May 1, 1997, for determining shareholders entitled to receive rights under such shareholder rights plan. Such a plan is designed to deter coercive and unfair takeover tactics and is not intended to prevent an acquisition of the Company on terms that represent fair value to all shareholders. On March 6, 1997, the Bidder commenced the Offer. On March 11, 1997, the Board of Directors held a meeting to review the terms and conditions of the Offer, discuss its plan of action with respect to evaluating the Offer, and receive preliminary advice from the Company's legal advisors. At this meeting, the Board of Directors authorized the Company's management to retain a financial advisor to prepare a valuation of the Company and to engage a proxy solicitor to assist in responding to the Offer and any proxy contest or consent solicitation that might arise. At a special meeting of the Company's Board of Directors held on March 18, 1997, the Board of Directors of the Company reviewed the valuation study prepared for the Board by J.C. Bradford & Co., LLC ("J.C. Bradford"), financial advisors to the Company, considered such other factors as it deemed relevant, and considered the advice of the Company's legal counsel regarding its fiduciary duties. After extensive discussion and due consideration of relevant factors, including those discussed below, the Company's Board of Directors unanimously determined to reject the Offer, based upon the Board's determination that the $.90 per Share amount of the Offer is inadequate and the Offer is not in the best interests of the Company and its shareholders. Recommendation of the Board of Directors Accordingly, the Board of Directors unanimously recommends that the Company's shareholders reject the Offer and not tender their Shares pursuant to the Offer. A letter to shareholders communicating the Board's determination and recommendation and a press release relating thereto are filed as Exhibits 6 and 7 hereto and are incorporated herein by reference. In reaching its determination and recommendation described above, the Board of Directors considered a number of factors, including, without limitation, the following: (a) The Board considered the Company's business, assets, financial condition and future prospects, the strategic direction of the Company's business, current conditions in its segment of the restaurant industry and the historical and current - 5 - market prices for the Shares. The Board also considered that the Company recently refinanced its long-term debt on favorable terms, opened a new restaurant in January 1997 and is positioned to renew its commitment to growth by the addition of new Ryan's Family Steak House Restaurants. The Board also considered that the Company's management team is highly regarded by the Company's franchisor, Ryan's Family Steak Houses, Inc., and lender, FFCA Mortgage Corporation. Both the franchisor and the lender have advised the Company that they support the Company's current management and strategic focus and that they would not recommend that the Company's shareholders tender their Shares in response to the Offer. The Board observed that pursuant to the terms of its Franchise Agreement the exclusivity of its franchise rights in North and Central Florida would be terminated upon the closing and disposition of two or more restaurants by the Bidder. The Board believes that the introduction of new management or additional influences on management is not advisable at this time and could be disruptive to the Company's relationship with its franchisor. The Board also believes that, while its lender, FFCA Mortgage Corporation, is comfortable with the Company's current management team and business operations after conducting extensive due diligence investigations in connection with its recent $15 million refinancing of the Company, FFCA Mortgage Corporation is not familiar with Mr. Ceiley or the Bidder. The Board believes that FFCA Mortgage Corporation is concerned by the Bidder's lack of experience in the restaurant industry. Accordingly, the Board is of the opinion that the Bidder's plans for the Company could interfere with the Company's beneficial relationship with its primary lender. The Board noted that the Company's book value is $1.03 per Share and that for the 30-day period ended March 13, 1997 the average daily closing price for the Shares was $.88 per share. Management also reported to the Board that a number of shareholders had contacted the Company, expressed their support of the Company's current management, stated that the offer was too low and indicated that they would not tender their shares in response to the Offer. The Board also considered the fact that the Offer is for only 2,600,000 shares and that the shareholders who would remain if the Bidder is successful in his Offer would be left with a corporation possibly controlled by a person with no expertise in the restaurant industry, little financial resources and no experience managing a publicly-traded company. The Board expressed concern for the fact that so little is known about the Bidder and its plans for the Company if the Offer is successful. The Board further determined that any change in management, the disposition of restaurants or other significant operational change contemplated by the Bidder - 6 - would have a significantly adverse effect on the Company's relationships with its employees, customers, suppliers and other constituencies, including the communities that the Company serves and in which its facilities are located. (b) The Board discussed the lack of information on the Bidder's plans for the Company and the Bidder's lack of experience or expertise in the restaurant industry and franchised businesses and in managing publicly-traded corporations. The Board noted that the Offer and the Board's meeting with Mr. Ceiley provided little indication of the Bidder's strategies for the Company. The Board observed that the Bidder's financial data as set forth in the Offer indicated working capital of only $3.189 million, indicating that it would not be in a position to provide substantial financial resources to the Company or to purchase substantially more Shares upon completion of the Offer. The financial data in the Offer also indicated that in 1996 the Bidder had net sales of only $30.4 million, net income of only $1.68 million, up from $595,000 two years earlier, and relatively low margins. The Board also had concerns about the depth of the Bidder's management team which consists of only three people according to its Offer. The Board further noted that proper management of the Company requires expertise in restaurant site selection, managing a substantial number of employees, oversight of extremely high cost and highly perishable food inventories, anti-fraud and theft cash control systems, maintenance of uniform quality standards across retail outlets and varying shifts of operation, and supervision of customer service, cleanliness and other issues arising in the food service business. Based on the Offer, which stated that the Bidder's principal executive offices are in California and its principal business is the distribution of fasteners and electronic components, the Board concluded that the Bidder does not appear to have the business expertise necessary to add value to the Company's full-service restaurant operations in Florida. (c) Management also advised the Board that they believe the Company is stronger now than at any time in the last five years. The Company recently closed on long-term financing that significantly lowered its debt service, eliminated restrictive covenants and should permit it to engage in the construction of new restaurants. Management reported that the Company has made a firm offer to acquire a new restaurant site and that it plans to open its second new restaurant this year in the summer of 1997. Management noted that ownership of approximately 30% of the outstanding Shares would give the Bidder de facto control over the Company and expressed concern that the Offer did not include a "control premium." Management also expressed concern regarding the Bidder's lack of experience in the restaurant industry, lack of experience managing a publicly-traded company, lack of substantial financial resources and failure to disclose its plans regarding the Company. Management also noted that the Company has - 7 - approximately 1400 employees in 26 separate locations and that they would apparently lose their jobs if the Bidder proceeded with plans to dispose of restaurant operations as alluded to in the Offer. (d) The Board also considered the valuation study prepared by J.C. Bradford, the Company's financial advisor, which showed that the $.90 per Share value of the Company represented by the Offer is within the range of value of the Company. In determining its valuation range for the Company, J.C. Bradford employed five (5) different valuation methodologies, including review of comparable public company multiples, review of comparable mergers and acquisitions, preparation of a discounted cash flow analysis, estimation of break-up value and calculation of book value. In reviewing comparable public company multiples, J.C. Bradford reviewed the multiples of public companies with substantial operations in the Southeastern United States and customer profiles similar to those of the Company. These included: Bob Evans Farms; IHOP Corp.; Shoneys, Inc.; Ryan's Family Steak Houses, Inc.; Piccadilly Cafeterias, Inc.; Morrison Fresh Cooking, Inc.; Perkins Family Restaurants; Vicorp Restaurants, Inc.; and Lubys Cafeterias, Inc. In reviewing comparable mergers and acquisitions, J.C.Bradford reviewed the consideration paid in the acquisition of similarly sized restaurant companies in the Southeastern United States. These included: Wendy's International, Inc. acquisition of Volunteer Capital-Wendy's; Burger King Corp. acquisition of Davgar Restaurants-Burger King; Apple South acquisition of Marcus Corp- Applebees; American Family Restaurants acquisition of Denwest Restaurant Corp.; Applebee's International, Inc. acquisition of Pub Venture of New England, Inc.; DavCo Restaurants, Inc. acquisition of Southern Hospitality Corp.; Outback Steakhouse, Inc. acquisition of Connerty and Associates; AppleSouth acquisition of Apple Tenn-Flo, L.P.; and Outback Steakhouse, Inc. acquisition of an undisclosed Louisiana Outback. In preparing its discounted cash flow analysis, J.C. Bradford used the operating Cash Flow EBITDA Exit Multiple method and the Free Cash Flow Net Income Exit Multiple method. In estimating break-up value, J.C. Bradford relied on 1994 appraisals of the Company's real estate properties, conducted by an independent appraiser, and on the Company's preliminary financial statements for the fiscal year ended January 1, 1997. - 8 - In calculating book value, J.C. Bradford relied on the Company's preliminary financial statements for the fiscal year ended January 1, 1997. (e) The Board considered the opinion of the Company's management that the terms of the Offer are inadequate. Management's opinion was based on its knowledge of the Company's business, its view as to the long-term financial plan and future prospects of the Company, its judgment as to the value of the Company's assets, its opinion concerning the Company's financial condition, and current conditions in the family steak house restaurant industry. (f) The Board of Directors also discussed the likelihood that the Company could consider and consummate transactions with other parties on more advantageous terms to the Company and its shareholders and its determination to explore a variety of other alternatives to the Offer. The Board observed that, given additional time, it could consider and negotiate another transaction with a different party that might be willing to pay a higher price per Share, to provide management expertise in the family restaurant industry, and to contribute greater financial resources than the Bidder. (g) The Board noted the Bidder's willingness to prepare the Offer, expend funds to retain legal counsel and other advisors to effectuate the Offer and take other actions and determined that it should explore further negotiations with the Bidder to better determine the Bidder's plans for the Company and to attempt to increase the price per Share in the Offer. The foregoing discussion of the information and factors considered by the Company's Board of Directors is not intended to be exhaustive. In view of the wide variety of factors considered, both positive and negative, the Company's Board of Directors did not assign relative weights to the above factors or determine that any factor was of particular importance. Rather, the Company's Board of Directors viewed its position and recommendation as being based on the totality of the information presented to, and considered by, it. - 9 - No Action with Respect to the Control Shares Act The Offer is conditioned upon, among other things, the inapplicability of the Florida Control Share Act to the Shares acquired by the Bidder. At its March 18, 1997 meeting, the Board determined to take no action which would render the Control Shares Act inapplicable to the Shares. Adoption of a Shareholder Rights Plan At the March 18, 1997, meeting, the Board of Directors also decided to accelerate the record date to March 19, 1997 for determining shareholders entitled to a dividend distribution of rights under the previously adopted shareholder rights plan. The Board believes that the shareholder rights plan will provide the Company with additional time to negotiate an increase in the Offer, to consider alternatives to the Offer, and to insure that any acquisition of the Company occurs on terms that provide fair value to the shareholders. The following summary of terms and conditions of the shareholder rights plan is qualified in its entirety by reference to the Rights Agreement between the Company and ChaseMellon Shareholder Services, Inc. which is attached as Exhibit 1 to the Company's Registration Statement on Form 8-A dated March 19, 1997 and is hereby incorporated by reference. Under the shareholder rights plan, the Company will issue one right for each Share currently outstanding or newly issued prior to a Distribution Date (as defined below). However, shareholders will not receive separate certificates for the rights until the Distribution Date. Upon the occurrence of the events enumerated below, each right will entitle the holder to purchase one-hundredth of one share of Junior Participating Preferred Stock of the Company at a price of $5.00 per one-hundredth of a share, subject to adjustment. The rights will be exercisable and will trade separately from the Company's common stock upon the earlier to occur of the following (a "Distribution Date"): (a) the tenth business day after the date of public announcement that a person or group of affiliated or associated persons have become the beneficial owners of 15% or more of the outstanding Shares or voting securities representing 15% or more of the total voting power (such a person is defined as an "Acquiring Person"), or (b) the tenth business day or such later date determined by the Board of Directors after the first public announcement of a tender or exchange offer, which, upon consummation, would result in a person or a group being the beneficial owner of 15% or more of the outstanding Shares (or 15% or more of the total voting power), or - 10 - (c) the tenth business day after a majority of the Board who are not officers of the Company have determined that a person is an Adverse Person. In light of the tender offer filed by Bisco on March 6, 1997, the Board elected to postpone the Distribution Date which would have otherwise been triggered under paragraph (b) above until April 15, 1997. The plan defines an "Adverse Person" as a person who alone or together with its associates and affiliates has become the beneficial owner of 10% of the outstanding Shares or voting securities representing 10% of the total voting power and the Board has determined, after reasonable inquiry and investigation, that (i) such beneficial ownership is intended to cause the Company to repurchase the common stock or voting securities beneficially owned by such person or to cause pressure on the Company to take action or enter into a transaction or series of transactions intended to provide the person with short-term financial gain not serving the interests of the shareholders, or (ii) the beneficial ownership is causing or reasonably likely to cause a material adverse impact on the business or prospects of the Company to the detriment of the Company's shareholders. Until the Distribution Date, the rights will be transferred with and only with the Shares. Separate certificates for the rights will be issued as soon as practicable following the Distribution Date to holders of record of Shares as of the Distribution Date. The rights will then begin trading separately from the Shares. Under the plan, if (i) a person becomes the beneficial owner of 15% or more of the then outstanding Shares or voting power (except pursuant to certain business combinations discussed below or an offer for all outstanding Shares and all other voting securities which the independent and disinterested directors of the Company determine to be fair to and otherwise in the best interests of the Company and its shareholders) or (ii) any person is determined to be an Adverse Person (either (i) or (ii) being a "Flip-in Event"), each holder of a right (with the exception of an Adverse or Acquiring Person) will thereafter have the right to receive, upon exercise, Shares having a value equal to no less than two times the - 11 - exercise price of the right. However, rights are not exercisable following the occurrence of a Flip-in Event until such time as the rights are no longer redeemable by the Company. In the event of certain business combinations involving the Company, each holder of a right may receive, upon exercise, common stock of the acquiring company having a value equal to two times the exercise price of the right. The Company may redeem each right for $0.001 at any time before the earliest of (i) the tenth day after a person or group becomes an Acquiring Person, (ii) the tenth day following the Board's determination that a person is an Adverse Person, or (iii) March 17, 2007. Revisions to the Company's Bylaws. The Board of Directors also adopted Amended and Restated Bylaws of the Company (the "Bylaws") in response to the Offer. The following summary of the revisions to the Bylaws is qualified in its entirety by reference to the Amended and Restated Bylaws which are attached as Exhibit 4 to the Company's Registration Statement on Form 8-A dated March 19, 1997 and hereby incorporated by reference. Among the revisions to the Bylaws, the Board adopted a provision to the Bylaws to provide that no business may be brought before an annual meeting of shareholders by a shareholder unless, among other conditions, such shareholder provides timely notice to the Company. To be timely, a shareholder's notice to the Company must be delivered to or mailed and received at the principal executive offices of the Company not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of shareholders. Likewise, in order for a shareholder of the Company to nominate persons for election to the Board of Directors, in addition to other applicable requirements, such shareholder must give timely notice thereof to the Company. To be timely, a shareholder's notice to the Company must be delivered to or mailed and received at the principal executive offices of the Company (a) in the case of an annual meeting of shareholders, not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of shareholders and (b) in the case of a special meeting of shareholders called for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting of shareholders was mailed or public disclosure of the date of the special meeting of shareholders was made, whichever first occurs. The provisions described above prescribing the timing and manner for shareholder proposals and nominations for the election of directors are intended to give the Company greater advance notice of such proposals and nominations and a better opportunity to assess the validity and adequacy of such proposals or nominations. The revisions to the Bylaws adopted by the Board of Directors at the March 18, 1997 meeting also include provisions to establish a classified board of directors. The classified - 12 - structure of the Board of Directors is designed to promote stability in management, since it limits the ability to effect a rapid change of the persons who make up the Board of Directors. Under the revised Bylaws, the Company's Board of Directors is divided into three classes: Class I, Class II, and Class III. At the 1997 annual meeting of shareholders of the Company, Class I directors shall be initially elected for a three-year term, Class II directors for a two-year term and Class III directors for a one-year term. At each succeeding annual meeting of the shareholders of the Company, commencing in 1998, the directors elected to succeed those directors whose terms then expire shall belong to the same class as the directors they succeed and shall hold office until the third succeeding annual meeting of shareholders or until their earlier death, resignation or removal from office. Another revision to the Bylaws provides for a supermajority (80%) vote of directors to fill any vacancy on the Board of Directors. The requirement that vacancies can only be filled by 80% of directors is intended to secure and maintain the benefits of the classified board of directors. Accordingly, because of this "supermajority" vote requirement, a shareholder that has acquired enough shares to control the election process cannot circumvent the classified board provision and stack the board with its designees. The revised Bylaw states that any vacancy occurring on the Board of Directors, including any vacancy created by reason of an increase in the number of directors, may be filled only by the affirmative vote of 80% of the directors then in office. A director elected to fill a vacancy shall hold office until the next shareholders' meeting at which directors are elected. The revisions to the Bylaws also authorize the Company to appoint an inspector of elections and an inspector of written consents, for the purpose of determining the validity and effect of proxies, consents and revocations and counting and tabulating all votes, consents, waivers and releases, among other functions. An inspector of elections or of written shareholder consents provides an independent ministerial review of the validity and tabulation of such shareholder votes, consents and revocations to determine when the minimum number of votes that would be necessary to take the applicable corporate action have been submitted. The Board of Directors believes that these Bylaw revisions may help protect the Company and its shareholders from coercive tactics proposed by the Bidder or other persons seeking to exert control over the Company. ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED. By Letter Agreement dated March 13, 1997, the Board retained J.C. Bradford to perform a valuation study of the Company and render its good faith estimate of the fair value of the Shares. In connection therewith, the Company has agreed to pay J.C. Bradford a fee of $25,000 payable upon the rendering of the valuation. In addition, the Company has agreed to pay all reasonable fees and disbursements of J.C. Bradford's counsel and all of J.C. Bradford's reasonable travel and out-of-pocket expenses arising out of the Company's engagement, provided that such expenses will not exceed $1,000 without the Company's - 13 - prior written consent. The Company has also agreed to indemnify J.C. Bradford against certain expenses and liabilities in connection with its engagement. The Board has engaged Corporate Investor Communications, Inc. ("CIC") to provide certain services in connection with the Offer and any proxy or consent solicitation and has agreed to pay CIC a fee of $25,000 plus reasonable disbursements which may include telephone charges, printing, postage, filing reports, courier charges, data transmissions, and other expenses approved by the Company. ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES. (a) To the Company's knowledge, the only transactions in the Shares effected during the past sixty (60) days by the Company or its executive officers, directors, affiliates or subsidiaries were the exercise of options to purchase 17,130 Shares each at an exercise price of $.01 per Share by each of directors Richard M. Gray and Joseph M. Glickstein on February 12, 1997. (b) To the Company's knowledge, none of the Company's directors, executive officers, affiliates and subsidiaries intend to tender their Shares to the Bidder pursuant to the Offer. ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY. (a) The Company has undertaken negotiations in response to the Offer that are in the preliminary stages which relate to or would result in: (1) any extraordinary transaction such as a merger or reorganization involving the Company or any subsidiary of the Company; (2) a purchase, sale or transfer of a material amount of assets by the Company or any subsidiary of the Company; (3) a tender offer for or other acquisition of Shares by or of the Company; or (4) a material change in the present capitalization or dividend policy of the Company. (b) There are no transactions, board resolutions, agreements in principle, or a signed contract in response to the Offer which relates to or would result in one of the matters referred to in item 7(a)(1), (2), (3) or (4). - 14 - ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED. None. ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 1 - Company Proxy Statement dated May 1, 1996 (incorporated by reference to the Company's Proxy Statement filed May 1, 1996) Exhibit 2 - Employment Agreement with Lewis E. Christman, Jr. Exhibit 3 - Employment Agreement with Edward B. Alexander Exhibit 4 - Consulting Agreement with Robert J. Martin Exhibit 5 - Form of Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing Exhibit 6 - Lease Agreement dated September 18, 1996 with CNL American Properties Fund (incorporated by reference to Exhibit 10.02 to the Company's Form 10-Q for the fiscal quarter ended October 2, 1996) Exhibit 7 - Form of Letter to Shareholders*+ Exhibit 8 - Press Release dated March 19, 1997* * mailed to shareholders + previously filed SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 19, 1997 FAMILY STEAK HOUSES OF FLORIDA, INC. By:/s/ Lewis E. Christman, Jr. ---------------------------------- Lewis E. Christman, Jr., President and Chief Executive Officer - 15 - NOTICE OF WITHDRAWAL for Shares of Common Stock of Family Steak Houses of Florida, Inc. - -------------------------------------------------------------------------------- THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME ON FRIDAY, APRIL 4, 1997, UNLESS THE OFFER IS EXTENDED. - -------------------------------------------------------------------------------- This Notice of Withdrawal must be completed, signed, guaranteed by an eligible institution and returned to: HARRIS TRUST COMPANY OF NEW YORK By mail: By Overnight Courier: By Hand: Wall Street Station 77 Water Street, 4th Flr. Receive Window P.O. box 1023 New York, NY 10005 77 Water Street New York, NY 10268-1023 New York, NY 10005 By Facsimile: (212) 701-7636 or 7640 To confirm receipt of your Notice of Withdrawal: (212) 701-7624 LADIES AND GENTLEMAN: The undersigned hereby withdraws the following shares of common stock, par value $0.01 per share (the "Shares") of Family Steak Houses of Florida, Inc., a Florida corporation tendered to Bisco Industries, Inc., an Illinois corporation (the "Purchaser") pursuant to the Purchaser's offer to purchase up to 2,600,000 Shares at a price of $0.90 per Share, net to the tendering shareholder in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 6, 1997.
- ------------------------------------------------------------------------------------------------------------ DESCRIPTION OF SHARES TO BE WITHDRAWN - ------------------------------------------------------------------------------------------------------------ Name(s) and Address(es) of Registered Holder(s) Certificate(s) Withdrawn (Attach additional lists if necessary) - ------------------------------------------------------ ----------------------------------------------------- Total Number of Shares Number of Certificate Represented by Shares Number(s) Certificate(s) withdrawn * - ------------------------------------------------------ ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- ----------------- Total Shares - ------------------------------------------------------ ----------------- ----------------- -----------------
* Unless otherwise indicated, it will be assumed that all Shares represented by any certificates delivered to the Depositary are being withdrawn hereby - -------------------------------------------------------------------------------- If you have any questions, please call our information agent, Corporate Investor Communications, Inc. toll-free at (800) 932-8498 NEEDS TO BE SIGNED AND COMPLETED ON REVERSE SIDE PLEASE COMPLETE AND SIGN THE BOX BELOW AND HAVE IT GUARANTEED BY AN ELIGIBLE INSTITUTION. ================================================================================ PLEASE SIGN HERE Must be signed by the registered holder(s) exactly as name(s) appear(s) on certificate(s). If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or a corporation or another person acting in a fiduciary or representative capacity, please set forth full title. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Signature(s) of Owner(s) Dated: ________________ , 1997 Name: __________________________________________________________________________ (Please Print) Capacity (full title):__________________________________________________________ Address:________________________________________________________________________ (Include zip code) Area Code(s) and Telephone Number(s) ____________________________________________________________ GUARANTEE OF SIGNATURE(S) Name of Firm: ____________________________ _____________________________________ Authorized Signature: __________________________________________________________ Name: __________________________________________________________________________ (Please Print) Title: _________________________________________________________________________ Address:________________________________________________________________________ (Include zip code) Area Code(s) and Telephone Number(s) ____________________________________________________________ Dated: ________________ , 1997 ================================================================================ If you have any questions, please call our information agent, Corporate Investor Communications, Inc. toll-free at (800) 932-8498 EX-1 2 PROXY STATEMENT FAMILY STEAK HOUSES OF FLORIDA, INC. 2113 Florida Boulevard Neptune Beach, Florida 32266 NOTICE OF ANNUAL MEETING OF SHAREHOLDERS You are cordially invited to attend the Annual Shareholders' Meeting to be held at the Sea Turtle Inn, One Ocean Boulevard, Atlantic Beach, Florida 32233, on Tuesday, June 18, 1996 at 10:00 a.m. for the purpose of: 1. Electing Directors; 2. Considering a shareholder proposal to change the Company's stock listing; and 3. Transacting such other business as may properly come before the meeting. The Board of Directors has fixed the close of business on May 1, 1996 as the record date for determining shareholders entitled to vote at the Meeting. Only shareholders of record at the close of business on that date will be entitled to vote at the Meeting. The Company hopes that as many shareholders as possible will personally attend the Meeting. Whether or not you plan to attend the Meeting, please complete the enclosed proxy and return it promptly so that your shares will be represented. Sending in your proxy will not prevent you from voting in person at the Meeting. /s/ Lewis E. Christman, Jr. ---------------------------- Lewis E. Christman, Jr. President and CEO Date: May 1, 1996 FAMILY STEAK HOUSES OF FLORIDA, INC. 2113 Florida Boulevard Neptune Beach, Florida 32266 PROXY STATEMENT for 1996 ANNUAL MEETING OF SHAREHOLDERS General Information The solicitation of the enclosed proxy is made by and on behalf of the Board of Directors of Family Steak Houses of Florida, Inc. (the "Company") to be used at the 1996 Annual Meeting of Shareholders, which will be held at the Sea Turtle Inn, One Ocean Boulevard, Atlantic Beach, Florida, at 10:00 a.m. on Tuesday, June 18, 1996. The principal executive offices of the Company are located at 2113 Florida Boulevard, Neptune Beach, Florida 32266. The approximate mailing date of this Proxy Statement is May 1, 1996. The proxy may be revoked at any time before it is exercised by giving notice of revocation to the Secretary of the Company. The shares represented by proxies in the form solicited by the Board of Directors will be voted at the meeting. Where a choice is specified with respect to a matter to be voted upon, the shares represented by the proxy will be voted in accordance with such specification. If no choice is specified, such shares will be voted as hereinafter stated in this Proxy Statement. Insofar as management has been advised, no officer, director or director nominee of the Company at any time since the beginning of its last fiscal year, nor any associate of any such officer, director or director nominee has any substantial interest in the matters to be acted upon at the 1996 Annual Meeting of Shareholders. Record Date and Voting Securities The Board of Directors has fixed the close of business on May 1, 1996 as the record date for determination of shareholders entitled to vote at the meeting. Holders of the Company's common stock, par value $0.01 per share (the "Common Stock") as of May 1, 1996 will be entitled to one vote for each share held, with no shares having cumulative voting rights. No other class of the Company's securities is entitled to vote at the meeting. As of April 12, 1996, the Company had outstanding 10,890,600 shares of Common Stock. Vote Required The affirmative vote of the holders of a majority of shares present, either in person or by proxy, at the Annual Meeting of Shareholders is necessary for the election of any director nominee. Under the Florida Business Corporation Act, directors are elected by a plurality of the votes cast and other matters are approved if the votes cast by the holders of the shares represented at the meeting and entitled to vote on the subject matter favoring the action exceed the votes opposing the action, unless a greater number of affirmative votes or voting by classes is required by the act or the articles of incorporation. Therefore, under Florida law, abstentions and broker non-votes have no effect. A broker non-vote generally occurs when a broker who holds shares in street name for a customer does not have authority to vote on certain matters under the rules of the exchange on which the stock is traded. Security Ownership of Certain Beneficial Owners and of Management The table set forth below presents certain information regarding beneficial ownership of the Company's Common Stock (the Company's only voting security), as of February 9, 1996 by (i) each shareholder known to the Company to own, or have the right to acquire within sixty (60) days, more than five percent (5%) of the Common Stock outstanding and (ii) all officers and director nominees of the Company as a group. The shares of Common Stock beneficially owned by each director nominee are shown in the table beginning on page 3 of this Proxy Statement. Amount of Common Name and Address of Stock Beneficially Percent of Beneficial Owner Owned Class - ---------------- ------------------ ----- Cerberus Partners, L.P. ....................... 1,250,000(1) 10.3% 950 Third Ave., 20th Floor New York, New York 10022 Heartland Advisors, Inc. ...................... 701,00 6.5% All Officers and Directors .................... 404,999(2) 3.6% Nominees as a Group (6 Persons) - ----------------- (1) Represents shares issuable upon exercise of certain stock purchase warrants issued October 1, 1988, pursuant to which the holders thereof have the right to purchase an aggregate of up to 1,250,000 shares of Common Stock for $.40 per share. None of such shares are outstanding. (2) Includes an aggregate 281,050 of shares of common stock which certain of the Company's executive officers and directors have the right to acquire immediately or within sixty days (60) upon the exercise of certain options granted pursuant to the Company's 1986 Employee Incentive Stock Option Plan and the 1995 Long Term Incentive Plan. Board of Directors and Committees of the Board The business of the Company is under the general management of a Board of Directors as provided by the corporation laws of Florida, the Company's state of incorporation. In accordance with the Bylaws of the Company, which empower the Board of Directors to appoint such committees as it deems necessary and appropriate, the Board of Directors has appointed an Executive Committee, an Audit Committee and an Executive Compensation Committee. The Executive Committee is authorized to exercise the powers and duties of the full Board of Directors between meetings of the Board and while the Board is not in session. Currently, the members of the Executive Committee are Directors Gray and Glickstein, each of whom are non-employee Directors, and Director Christman. The Executive Committee held three meetings in 1995. All members of the Committee attend each of these meetings. The Audit Committee's basic functions are to assist the Board of Directors in discharging its fiduciary responsibilities to the shareholders and the investment community in the preservation of the integrity of the financial information published by the Company, to maintain free and open means of communication between the Company's directors, independent auditors and financial management, and to ensure the independence of the independent auditors. Currently, the members of the Audit Committee are Directors Gray and Glickstein, each of whom are non-employee Directors, and Director Christman. The Audit Committee held one meeting during fiscal year 1995. All members of the Audit Committee attended this meeting. The Executive Compensation Committee administers the Company's qualified Employee Incentive Stock Option Plan and is responsible for establishing executive officer salaries and granting qualified stock options to officers and managerial employees of the Company. The current members of the Executive Compensation Committee are Directors Glickstein and Gray, each of whom are non-employee Directors, and Director Christman. The Executive Compensation Committee held three meetings during fiscal year 1995. All members of the Executive Compensation Committee attended these meetings. The Board of Directors held 11 meetings during fiscal year 1995. Each of the directors attended 75% of the meetings of the Board of Directors. The Board of Directors does not have a Nominating Committee. 2 Director Compensation Two of the four director nominees are not employees of the Company. In order to attract and retain highly qualified independent directors through an investment interest in the Company's future success, the Company enacted in 1985 a non-qualified Stock Option Plan for Non-Employee Directors (the "Director's Plan"). Each director eligible under the Directors Plan annually receives an option to purchase 9,000 shares of Common Stock. Typically options are granted on the first business day of each calendar year, at an option exercise price per share equivalent to a price such that the aggregate fair market value on the date of grant for all shares subject to the options exceeds the aggregate option exercise price by the amount of $10,000. Options granted under the Director's Plan are immediately exercisable and expire five years from the date of grant. On January 2, 1996 options were granted to Directors Gray and Glickstein for the purchase of 9,000 shares each at a purchase price of $.01 per share. Since the price of the stock was $.78 on January 2, 1996, the Company granted an additional 3,800 shares to each eligible director at a purchase price of $.01 per share so that the market value of all options granted in 1996 exceeded the option exercise price by $10,000. Directors who are full-time employees of the Company receive $90 for each Board of Directors meeting attended. Directors who are not employees of the Company receive a fee of $450 for each Board of Directors meeting or Executive Committee Meeting attended. No fees are awarded directors for attendance at meetings of the Audit or Executive Compensation committees of the Board of Directors. Matters to be Acted Upon 1. Election of Directors The Board of Directors recommends that the shareholders vote for the election of the four (4) nominees listed below to serve as directors until the next Annual Meeting of Shareholders and until their successors are elected and qualified.* Each of the nominees presently is serving as a director of the Company. Mr. Christman was appointed in February 1993 and elected by the shareholders at the 1993 annual meeting. Directors Gray and Glickstein were appointed in June 1994 and elected by the shareholders in August 1994. Director Martin was elected by the shareholders in June 1995. Should any one or more of the nominees become unavailable to accept nomination or election as a director, the enclosed proxy will be voted for such other person or persons as the Board of Directors may recommend, unless the Board reduces the number of directors.
Common Stock Beneficially Owned as of Percent Name Business Experience and Age February 9,1996(1) of Class(2) ---- --------------------------- ------------------ ----------- Lewis E. Christman, Jr. President & CEO of the Company since 61,409 .56% April 1994. Purchasing consultant to the Company from January 1994 to March 1994. Partner, East Coast Marketing since 1990; Chairman of the Board of Neptune Marketing Inc. (food broker) from 1979 to 1989; age 76. Joseph M. Glickstein, Jr. Partner, Glickstein & Glickstein, law firm 42,763 .39% since 1950, age 69. Richard M. Gray Partner, Gray & Kelley, CPAs, since 1973. 42,763 .39% President & Director of Universal Marion Corp. since 1973. Age 64. Robert J. Martin Vice President of the Company since April 153,364 1.40% 1994. Vice President of Steak House Construction Corporation, the Company's wholly owned construction subsidiary, since 1981. Age 68.
- ---------- * The Company mourns the recent death of long-time officer and director William Stanley Smith, Jr. The Board of Directors intends to appoint a qualified successor as soon as practical. 3 (1) Included in such beneficial ownership are shares of Common Stock issuable upon the exercise of certain options exercisable immediately or within sixty (60) days of February 9, 1996, as follows: Lewis E. Christman, Jr., 50,000 shares; Joseph M. Glickstein, Jr., 12,800 shares; Richard M. Gray, 12,800 shares; Robert J. Martin, 100,750 shares. (2) The percentages represent the total of the shares listed in the adjacent column divided by the issued and outstanding shares of Common Stock as of February 9, 1996, plus any stock options or warrants exercisable by such person within 60 days following February 9, 1996. There are no family relationships between any of the nominees and executive officers of the Company. There are no arrangements or understandings between any director and any other person pursuant to which any of the nominees has been nominated. Compliance with Section 16(a) of the Securities Exchange Act of 1934 Section 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), requires certain officers of the Company and its directors, and persons who beneficially own more than ten percent of any registered class of the Company's equity securities, to file reports of ownership in such securities and changes in ownership in such securities and with the Securities and Exchange Commission (the "Commission") and the Company. Based solely on a review of the reports and written representations provided to the Company by the above referenced persons, the Company believes that during 1995 all filing requirements applicable to its reporting officers, directors and greater than ten percent beneficial owners were properly and timely satisfied. Report of the Executive Compensation Committee The Executive Compensation Committee (the "Committee"), currently consisting of directors Christman, Glickstein and Gray, uses the following objectives as guidelines for its executive compensation decisions; to provide a compensation package that will attract, motivate and retain qualified executives; to ensure a compensation mix that focuses executive behavior on the fulfillment of annual and long-term business objectives; and to create a sense of ownership in the Company that causes executive decisions to be aligned with the best interests of the Company's shareholders. The Company's compensation package in 1995 for its executive officers consisted of base salary and stock option grants. The Committee determined stock option awards and salary level for the Company's Chief Executive Officer. The Chief Executive Officer, in consultation with the Committee, makes decisions regarding salary and annual bonuses and recommendations regarding stock option grants to other executive officers of the Company. General Compensation Policies In general, base salary levels are set at the minimum levels believed by the Company's Chief Executive Officer to be sufficient to attract and retain qualified executives when considered with the other components of the Company's compensation structure. The Company's Chief Executive Officer, in consultation with the Executive Compensation Committee adjusts salary levels for executive officers based on achievement of specific annual performance goals, including personal, departmental and overall Company goals depending upon each officer's specific job responsibilities. The Chief Executive Officer also uses his subjective judgment, based upon such criteria as the executive's knowledge of and importance to the Company's business, willingness and ability to accomplish the tasks for which he or she was responsible, professional growth and potential, the Company's operating earnings and an evaluation of individual performance, in making salary decisions. Compensation paid to executive officers in prior years is also taken into account. No particular weighting is applied to these factors. 4 Each of the Committee and Chief Executive Officer may determine that the Company's financial performance and individual achievements merit the payment of annual bonuses. In recent years, no bonuses have been awarded to any officers of the Company. The Committee determines annual stock option grants to executive officers, other than the Chief Executive Officer, and other eligible employees based on recommendations of the Chief Executive Officer. Stock options are intended to encourage key employees to remain employed by the Company by providing them with a long term interest in the Company's overall performance as reflected by the market price of the Company's Common Stock. In making awards in 1996, the Chief Executive Officer and the Committee considered, without assigning a particular weighting, the number of options previously granted to the executive, the executive's salary, the Company's performance and the need for a long term focus on improving shareholder value. The Committee will consider any federal income tax limitations on the deductibility of executive compensation in reaching compensation decisions and will seek shareholder approval where such approval will eliminate any limitations on deductibility. CEO Compensation Considering the improved profitability of the Company in 1995, the Company's successful debt restructuring, and the salary being paid to the Company's prior Chief Executive Officer, the Committee decided to increase Mr. Christman's salary from $90,000 to $130,000 effective June 20, 1995. In order to provide an incentive to Mr. Christman, the Committee granted him an option to purchase 200,000 shares of the Company's Common Stock an exercise price of $.40, a price which was higher than the market price as of the date of the Company's contractual agreement with Mr. Christman, exercisable over four years. Respectfully Submitted. Lewis E. Christman, Jr. Joseph M. Glickstein, Jr. Richard M. Gray 5 Executive Pay The summary compensation table below sets forth a summary of the compensation earned by the Company's chief executive officers from 1993 to 1995. ("Named Executives".) Summary Compensation Table
Long Term Compensation Annual Compensation ---------------------------------- ---------------------------------------- Securities Other Annual Underlying All Other Name and Principal Position Year Salary($)(l) Bonue($) Compensation(2) Options#(3) Compensationt($)(4) - --------------------------- ---- ------------ -------- --------------- ----------- ------------------- Lewis E. Christman, Jr ......... 1995 $109,538 -0- $20,000 200,000 $ 488 President & CEO 1994 63,794 -0- -0- 20,409 -- George F. Staudter ............. 1994 $ 38,654 -0- -0- -- $ 20,000 President & CEO, 1993 26,769 -0- -0- 200,000 -- December 1993 to April 1994 James W. Osborn ................ 1993 $ 44,212 -0- -0- 9,000 $ 23,750 President & CEO, January 1993 to May 1993 Eddie L. Ervin, Jr. ............ 1993 $130,000 -0- $20,000 9,000 $ 1,887 Chairman of the Board 1993, President & CEO, May 1993 to December 1993
Explanation of Columns: (1) Salary: Total base salary paid during the year. (2) Other Annual Compensation: All additional forms of cash and non-cash compensation. The value of all personal benefits and perquisites received by the named executives was less than the required reporting threshold, except for automobile allowances of S20,000 paid to Mr. Ervin in 1993 and $20,000 paid to Mr. Christman in 1995. (3) Securities Underlying Options: Number of shares of Common Stock underlying grants of options made during the year. The options issued to Mr. Osborn, Mr. Ervin and Mr. Staudter expired upon their resignations. (4) All Other Compensation: All other compensation that does not fall under any of the aforementioned categories. Amounts shown include $20,000 as severance payment to Mr. Staudter upon his resignation and S23,750 as severance payment to Mr. Osborn upon his resignation. 6 Option Grants And Exercises The following table sets forth information concerning individual grants of options to purchase the Company's Common Stock made to the named executives in 1995: Option Grants in Last Fiscal Year
% Pulential Realizable Total Value at Assumed Number of Options Annual Rate of Stock Price Securities Granted to Appreciation for Option Underlying Employees Exercise Market Option Term(3) Options In Fiscal Price Price Expiration ------------------------------ Name Granted Year ($SH) ($SH) Date O%($) 5%($) 10%($) ---- ------- ---- ----- ----- ---- ----- ----- ------ Lewis E. Christman, Jr.(l) ............ 200,000 21.3% $.40 $0.8125 8/15/05 $82,500 $184,695 $341,483 Robert F. Scott(l) .................... 100,000 10.7 0.40 0.8125 8/15/05 41,250 92,347 170,742 Robert F. Scott(2) .................... 16,000 1.7 0.75 0.7500 9/05/05 -- 7,546 19,125 Robert J. Martin(l) ................... 50,000 5.3 0.40 0.8125 8/15/05 20,625 46,174 85,370 Robert J. Martin(2) ................... 16,000 1.7 0.75 0.7500 9/05/05 -- 7,546 19,125 Edward B. Alexander(l) ................ 50,000 5.3 0.40 0.8125 8/15/05 20,625 46,174 85,370 Edward B. Alexander(2) ................ 16,000 1.7 0.75 0.7500 9/05/05 -- 7,546 19,125 ------- ----- ------- ------- --------
- ---------- (1) Options granted on August 25, 1995, all of which are exercisable on that date, pursuant to the Company's 1995 Long Term Incentive Plan. Options expire 10 years from the date of grant. (2) Options granted on September 5, 1995, all of which are exercisable on that date, pursuant to the Company's 1995 Long Term Incentive Plan. Options expire 10 years from the date of grant. (3) The dollar amount under the columns assumes that the market price of the Common Stock from the date of the option grant appreciates at cumulative annual rates of 0%, 5% and 10%, respectively, over the option term of ten years. The assumed rates of 5% and 10% were established by the Securities and Exchange Commission and therefore are not intended to forecast possible future appreciation of the Common Stock. 7 Option Exercises and Year-End Option Value The following table sets forth information concerning the number of unexercised options to purchase the Company's common stock held by the named executives at fiscal year end. Aggregated Option Exercises in Last Fiscal Year, and Year-End Option Value
Securities Underlying Value of Number of Unexercised Unexercised In-the-Money Shares Options at Options at Acquired Year-End (#) Year-End($) on Exercise Value ------------ ------------- in 1995 Realized Exercisable/ Exercisable/ Name (#) ($) Unexercisable Unexercisable - ---- ----------- -------- ------------- ------------- Lewis E. Christman, Jr ...... -- -- 50,000/150,000 $19,063/57,188(1) Robert F. Scott ............. -- -- 25,000/75,000 9,531/28,594(1) Robert F. Scott ............. -- -- --/16,000 --/ 500(2) Robert J. Martin ............ -- -- 12,500/37,500 4,766/14,297(1) Robert J. Martin ............ -- -- --/16,000 --/ 500(2) Edward B. Alexander ......... -- -- 12,500/37,500 4,766/14,297(1) Edward B. Alexander ......... -- -- --/16,000 --/500(2)
- ---------- (1) Market value of underlying securities at year end ($.781 at Janurary 3, 1996), minus the exercise the exercise price of $.40 or (2) $.75 Employment Agreements In June 1995, the Company entered into an employment agreement with Lewis E. Christman, Jr., providing for compensation of $130,000 per year, with bonuses to be awarded by the Board of Directors in its discretion, and a $20,000 car allowance every two years. Additionally, the contract provides for the grant of an option to purchase 200,000 shares of the Company's Common Stock at an exercise price of $.40 per share. In June 1995, the Company entered into an employment agreement with Robert F. Scott, providing for compensation of $90,000 per year, with bonuses to be awarded by the Board of Directors in its discretion and a provision to lease an automobile for the benefit of the employee. Additionally, the contract provides for the grant of an option to purchase 100,000 shares of the Company's Common Stock at an exercise price of $.40 per share. In June 1995, the Company entered into an employment agreement with Robert J. Martin, providing for compensation of $65,000 per year, with bonuses to be awarded by the Board of Directors in its discretion. Additionally, the contract provides for the grant of an option to purchase 50,000 shares of the Company's Common Stock at an exercise price of $.40 per share. In April 1995, the Company entered into an employment agreement with Edward B. Alexander, providing for compensation of $75,000 per year, with bonuses to be awarded by the Board of Directors in its discretion. Additionally, the contract provides for the grant of an option to purchase 50,000 shares of the Company's Common Stock at an exercise price of $.40 per share. 8 Comparison of Five- Year Cumulative Total Peturn The Securities and Exchange Commission requires a five- year comparison of stock price performance of the Company with both a broad equity market index and a published industry index or peer group. The Company's total return compared with the NASDAQ market index and the Media General Restaurant Index is shown on the following graph. The Media General Restaurant Index includes 243 publicly held restaurant companies. This graph assumes that $100 was invested on January 2, 1991 and all dividends were reinvested in the Company's Common Stock and the other indices. [THE FOLLOWING TABLE WAS REPRESENTED AS A LINE CHART IN THE PRINTED MATERIAL]
- ------------------------------------------------------------------------------------------ 1991 1991 1992 1993 1994 1995 - ------------------------------------------------------------------------------------------ Family Steak Houses of Florida 100.00 120.00 85.01 80.00 45.01 125.01 - ------------------------------------------------------------------------------------------ Industry Index 100.00 128.10 157.44 172.03 154.88 211.66 - ------------------------------------------------------------------------------------------ Broad Market 100.00 128.38 129.64 155.50 163.26 211.77 - ------------------------------------------------------------------------------------------
The preceding sections entitled "Report of the Compensation Committee" and " Comparison of Five- Year Cumulative Total Return" shall not be deemed incorporated by reference as a result of any general statement incorporating by reference this Proxy Statement into any filing under the Securities Act of 1933, as amended ( the "Securities Act"), or under the Securities and Exchange Act of 1934, as amended ( the " Exchange Act"), except to the extent that the Company specifically incorporated these sections by reference, and shall not otherwise be deemed to be filed under the Securities Act or Exchange Act. Independent Certified Public Accountants The Audit Committee has recommended to the Board of Directors that the accounting firm of Deloitte & Touche, LLP be engaged as independent auditor for the Company for 1996. The firm of Deloitte & Touche, LLP, served as the independent accountants for the Company for the fiscal year ending January 3, 1996. That firm has served as the auditor for the Company since 1991. Representatives of Deloitte & Touche are expected to be present at the annual meeting of shareholders to respond to appropriate questions. 2. Proposal to Change Company Stock Listing The Company's common stock currently trades on NASDAQ under the Ticker symbol "RYFL". However, stock listing in various periodicals report market activity in the Company's stock under the abbreviation "FamStk". The Company has received a shareholder proposal that the Company change its listing from "FamStk" to "RyanFL". The Company has determined that such a change can be accomplished at minimal cost. The shareholder proposal indicates that they believe a change in the Company's stock listing is advantageous for several reasons. First, they believe the investing public identifies the Company as a franchisee of Ryan's Family Steak Houses. Therefore, they believe that existing and prospective investors are more inclined to look for a listing of the Company's stock under a listing bearing some resemblance to the Ryan's name. The shareholder does not believe that most existing and prospective investors are familiar with the Company's actual corporate name, Family Steak Houses of Florida, Inc., and therefore do not readily 9 locate information regarding market activity in the Company's common stock under the listing "FamStk". The shareholder also believes that the Company can gain some synergy from a stock listing in closer approximation to the stock listing information of its franchisor, Ryan's Family Steak Houses, Inc. Notwithstanding these advantages, the Company has a concern that some confusion among investors may develop if a change in listing is implemented without adequate notice, particularly to existing shareholders. Therefore, although shareholder approval is not required for the Company to adopt this change in its stock listing, the Company hereby submits the proposal to the shareholders for a vote in an effort to accommodate the desires of shareholders and provide adequate notice of the proposed change. The Board of Directors recommends that shareholders vote FOR this proposal. 3. Other Matters The Board of Directors is not aware of any other matters to come before the meeting. If any other business should come before the meeting, the persons named on the enclosed proxy will have discretionary authority to vote such proxy in accordance with their best judgment. Shareholder Proposals Proposals of shareholders to be presented at the 1997 Annual Meeting of Shareholders must be received at the Company's executive offices by November 15, 1996, to be considered for inclusion in the Company's proxy materials relating to that meeting. Solicitation of Proxies This proxy is solicited by the Board of Directors of the Company. The cost of soliciting proxies will be borne by the Company. Following the original mailing of the solicitation material, regular employees of the Company may solicit proxies by mail, telephone or telegraph. The Company may request brokerage houses and other nominees of fiduciaries to forward copies of its proxy material and Annual Report to Beneficial owners of stock held in their names, and the Company may reimburse them for reasonable out-of-pocket expenses incurred with respect to such action. By Order of the Board of Directors /s/ Lewis E. Christman, Jr. --------------------------- President and CEO Date: May 1, 1996 10 EX-2 3 EMPLOYMENT AGREEMENT EXHIBIT 2 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the "Agreement"), made and entered into as of this 30th day of December, 1996 by and between FAMILY STEAK HOUSES OF FLORIDA, INC., a corporation organized under the laws of the State of Florida (hereinafter referred to as the "Company") and LEWIS E. CHRISTMAN, JR. (hereinafter referred to as "Employee"). W I T N E S S E T H: WHEREAS, Employee and the Company wish for Employee to serve in the position of Chief Executive Officer of the Company; and WHEREAS, the Company and Employee have agreed upon an Employment Agreement and desire to reduce to writing its terms and conditions as hereinafter set forth, intending that this Employment Agreement will replace and supersede all prior agreements or understandings concerning Employee's employment. NOW, THEREFORE, in consideration of the premises, the parties hereto do hereby agree as follows: Section 1. Employment. Subject to the terms and conditions contained herein, the Company hereby employs Employee, effective upon the date hereof, as the Chief Executive Officer of the Company and Employee hereby accepts such employment and agrees to devote his best efforts and as much time as may be necessary, during or after the regular working hours of the Company, to perform his duties hereunder. Section 2. Employment Duties. During the term of this Agreement, the Employee shall perform the duties typically performed by the Chief Executive Officer of the Company, subject to direction of, and according to such policies and procedures as may be adopted from time to time by, the Board of Directors. The Employee shall report directly to the Board of Directors. Employee's duties and responsibilities shall not be materially diminished or reduced, without the consent of Employee. Section 3. Stock Option. In consideration of Employee's agreement to serve as Chief Executive Officer, the Company may from time to time grant him options to acquire shares of the Company's common stock. The award of any options shall be evidenced by an agreement containing usual and customary provisions. Section 4. Compensation 4.1 Salary. Employee shall receive a salary from the Company of One Hundred Thirty Thousand Dollars ($130,000) per annum payable in semi-monthly installments, subject to increase at any time as determined by a majority of the disinterested members of the Compensation Committee of the Board of Directors of the Company. 4.2 Reimbursement. Employee shall be entitled to receive bi-weekly reimbursement for, or seek direct payment by the Company of, such reasonable expenses incurred by Employee as are consistent with specific policies of the Company in the performance of his duties under this Agreement, provided that Employee accounts therefor in writing and that such expenses are ordinary and necessary business expenses of the Company for federal income tax purposes. 4.3 Vacation and Certain Fringe Benefits. Employee shall be entitled to reasonable paid vacation in accordance with the policies of the Company, and such other employee benefits as the Board may fix from time to time; provided, however, that, in the Employee's case, such employee benefits shall include comprehensive medical, hospitalization and disability insurance and other reasonable medical benefits in accordance with the policies of the Company, including the cost of an annual physical examination. 4.4 Automobile. The Company shall provide a bi-annual allowance of up to Twenty Thousand Dollars ($20,000) (the "Allowance Amount") for the Employee's purchase of a new or used automobile. The automobile shall be titled in the name of Employee and shall remain Employee's property upon any termination of this Agreement. If the automobile selected by Employee has a purchase price in excess of the Allowance Amount, Employee shall be responsible for all amounts in excess of the Allowance Amount. Furthermore, during the term of this Agreement, the Company shall pay the expense of reasonable insurance for such automobile (including, but not limited to collision, liability, comprehensive and uninsured motorist coverage). Section 5. Term. 5.1 Duration. Unless sooner terminated in accordance with provisions for termination set forth under Subsections 5.2 or 5.3 below, this Agreement shall continue in full force and effect for a term ending on June 19, 1998, and shall thereafter renew for additional one year terms unless either party notifies the other at least 10 days prior to the end of any term. 5.2 Termination for Cause. This Agreement may be terminated for cause as follows: (a) At the election of the Company, upon Employee's breach of any material provision of this Agreement; (b) At the election of Employee, upon the Company's breach of any material provision of this Agreement; (c) Upon the death of Employee; (d) At the election of either party, upon the total disability of Employee to perform his normal duties for a period of one hundred eighty (180) consecutive days, but only after the Company provides ten (10) days' prior written notice to Employee; (e) At the election of the Company, upon the indictment of Employee or upon Employee entering a plea of guilty or nolo contendere to the alleged commission by Employee, as principal, accomplice or accessory, of a crime involving moral turpitude, or an act of fraud, embezzlement or dishonesty; or (f) At the election of the Company, upon the occurrence of gross or willful misconduct by Employee in the performance of his responsibilities hereunder during the course of employment. In the event that the Company or the Employee elects to terminate this Agreement because of a breach of any material provision hereof pursuant to paragraph (a) or (b) of this Subsection 5.2, respectively, the party electing to terminate this Agreement shall give at least fourteen (14) days written notice to the other party or its intention to terminate this Agreement, which notice shall specify the breach of this Agreement upon which such termination is based, and no such termination shall occur if the other party cures the breach so specified within said fourteen (14) day period, except that a party shall only have the opportunity to cure a breach of a material provision on two occasions and thereafter that party need not be given the opportunity to cure any further material breaches. All obligations of the Company under this Agreement, including obligations under the stock option agreement contained in Section 3 hereof, shall immediately cease upon termination of this Agreement by the Company for cause by the Company. 5.3 Termination Without Cause. Either party may terminate this Agreement without cause upon giving 30 days written notice to the other. If the Company elects to terminate this Agreement without cause, then the parties agree that Employee shall be entitled to receive, in a lump sum, the payments due him under Section 4.1 for the remaining term of this Agreement, which amount shall be in full satisfaction of any and all claims of Employee as a result of his employment by the Company. Should the Employee elect to terminate this Agreement without cause prior to the expiration hereof, then all obligations of the Company hereunder shall cease as of the date of termination. Section 6. Notice. All notices provided for herein shall be in writing and shall be deemed to be given when delivered in person or deposited in the United States Mail, first class, registered or certified, return receipt requested, with proper postage prepaid and addressed as follows: (a) If to the Company: Family Steak Houses of Florida, Inc. 2113 Florida Boulevard Neptune Beach, Florida 32266 (b) If to the Employee: Lewis E. Christman, Jr. 2113 Florida Boulevard Neptune Beach, Florida 32266 Section 7. Miscellaneous. 7.1 If any provision or any part of any provision of this Agreement is found not to be valid for any reason, such provision shall be entirely severable from, and shall have no effect upon the remainder of this Agreement. 7.2 This Agreement shall inure to the benefit of the Company, its successors and assigns, and be binding upon the Employee, his executor, administrator, heirs and personal representatives. 7.3 This Agreement may be modified only by written instrument signed by each of the parties hereto. 7.4 This Agreement shall be construed under and governed by the laws of the State of Florida. 7.5 Any failure of either party, on one or more occasions, to enforce and require the strict compliance with and performance of any of the terms and conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent such party from insisting on the strict compliance with and performance of such terms and conditions at any later time. 7.6 This Agreement comprises the entire agreement between the parties hereto with respect to the subject matter hereof and there are no agreements, undertakings, covenants or conditions concerning the subject matter hereof, whether oral or written, express or implied, that are not merged herein or superseded hereby. 7.7 The captions or headings of the Sections or other subdivisions hereof are inserted only as a matter of convenience or for reference and shall have no effect on the meaning of the provisions hereof. 7.8 All payments to be made or benefits to be provided hereunder by the Company shall be subject to reduction for any applicable payroll-related or withholding taxes. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. FAMILY STEAK HOUSES OF FLORIDA, INC. By:/s/Robert J. Martin --------------------------------- Robert J. Martin, Vice President Attest: /s/Michael J. Walters - ------------------------------ Michael J. Walters, Secretary EMPLOYEE: /s/Lewis E. Christman, Jr. ------------------------------ Lewis E. Christman, Jr. EX-3 4 EMPLOYMENT AGREEMENT EXHIBIT 3 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into as of the 1st day of October, 1996 by and between FAMILY STEAK HOUSES OF FLORIDA, INC., a corporation organized under the laws of the State of Florida (hereinafter referred to as the "Company") and EDWARD B. ALEXANDER (hereinafter referred to as "Employee"). W I T N E S S E T H: WHEREAS, Employee and the Company wish for Employee to serve in the position of Chief Financial Officer, Secretary and Treasurer of the Company; and WHEREAS, the Company and Employee have agreed upon an Employment Agreement and desire to reduce to writing its terms and conditions as hereinafter set forth, intending that this Employment Agreement will replace and supersede all prior agreements or understandings concerning Employee's employment. NOW, THEREFORE, in consideration of the premises, the parties hereto do hereby agree as follows: Section 1. Employment. Subject to the terms and conditions contained herein, the Company hereby employs Employee effective upon the date hereof, as the Chief Financial Officer, Secretary and Treasurer of the Company and Employee hereby accepts such employment and agrees to devote his best efforts and as much time as may be necessary, during or after the regular working hours of the Company, to perform his duties hereunder. Section 2. Employment Duties. During the term of this Agreement, the Employee shall perform the duties typically performed by the Chief Financial Officer, Secretary and Treasurer of the Company subject direction of the President according to such policies and procedures as may be adopted from time to time by the Board of Directors. Section 3. Stock Option. In consideration of Employee's agreement to serve as Chief Financial Officer, Secretary and Treasurer, the Company may from time to time grant him options to acquire shares of the Company's common stock. The award of any options shall be evidenced by an agreement containing usual and customary provisions. Section 4. Compensation 4.1 Salary. Employee shall receive a salary from the Company of Ninety Thousand Dollars ($90,000) per annum payable in bi-weekly installments, subject to increase at any time as determined by the Compensation Committee of the Board of Directors of the Company. 4.2 Reimbursement. Employee shall be entitled to receive bi-weekly reimbursement for, or seek direct payment by the Company of, such reasonable expenses incurred by Employee as are consistent with specific policies of the Company in the performance of his duties under this Agreement, provided that Employee accounts therefor in writing and that such expenses are ordinary and necessary business expenses of the Company for federal income tax purposes. 4.3 Vacation and Certain Fringe Benefits. Employee shall be entitled to reasonable paid vacation in accordance with the policies of the Company, and such other employee benefits as the Board may fix from time to time; provided, however, that, in the Employee's case, such employee benefits shall include comprehensive medical, hospitalization and disability insurance and other reasonable medical benefits in accordance with the policies of the Company, including the cost of an annual physical examination. Section 5. Term. 5.1 Duration. Unless sooner terminated in accordance with provisions for termination set forth under Subsections 5.2 or 5.3 below, this Agreement shall continue in full force and effect for a term ending on October 1, 1998, and shall thereafter renew for additional one year terms unless either party notifies the other at least 10 days prior to the end of any term. 5.2 Termination for Cause. This Agreement may be terminated for cause as follows: (a) At the election of the Company, upon Employee's breach of any material provision of this Agreement; (b) At the election of Employee, upon the Company's breach of any material provision of this Agreement; (c) Upon the death of Employee; (d) At the election of either party, upon the total disability of Employee to perform his normal duties for a period of one hundred eighty (180) consecutive days, but only after the Company provides ten (10) days' prior written notice to Employee; (e) At the election of the Company, upon the indictment of Employee or upon Employee entering a plea of guilty or nolo contendere to the alleged commission by Employee, as principal, accomplice or accessory, of a crime involving moral turpitude, or an act of fraud, embezzlement or dishonesty; or (f) At the election of the Company, upon the occurrence of gross or willful misconduct by Employee in the performance of his responsibilities hereunder during the course of employment. In the event that the Company or the Employee elects to terminate this Agreement because of a breach of any material provision hereof pursuant to paragraph (a) or (b) of this Subsection 5.2, respectively, the party electing to terminate this Agreement shall give at least five (5) days written notice to the other party or its intention to terminate this Agreement, which notice shall specify the breach of this Agreement upon which such termination is based, and no such termination shall occur if the other party cures the breach so specified within said five (5) day period, except that a party shall only have the opportunity to cure a breach of a material provision on two occasions and thereafter that party need not be given the opportunity to cure any further material breaches. All obligations of the Company under this Agreement, including any unvested options under any stock option agreements, shall immediately cease upon termination of this Agreement by the Company for cause. 5.3 Termination Without Cause. Either party may terminate this Agreement without cause upon giving 30 days written notice to the other. If the Company elects to terminate this Agreement without cause, then the parties agree that Employee shall be entitled to receive, in a lump sum, the payments due him under Section 4.1 for the remaining term of this Agreement, which amount shall be in full satisfaction of any and all claims of Employee as a result of his employment by the Company. Section 6. Notice. All notices provided for herein shall be in writing and shall be deemed to be given when delivered in person or deposited in the United States Mail, first class, registered or certified, return receipt requested, with proper postage prepaid and addressed as follows: (a) If to the Company: Family Steak Houses of Florida, Inc. 2113 Florida Boulevard Neptune Beach, Florida 32266 (b) If to the Employee: Edward B. Alexander 2113 Florida Boulevard Neptune Beach, Florida 32266 Section 7. Miscellaneous. 7.1 If any provision or any part of any provision of this Agreement is found not to be valid for any reason, such provision shall be entirely severable from, and shall have no effect upon the remainder of this Agreement. 7.2 This Agreement shall inure to the benefit of the Company, its successors and assigns, and be binding upon the Employee, his executor, administrator, heirs and personal representatives. 9 7.3 This Agreement may be modified only by written instrument signed by each of the parties hereto. 7.4 This Agreement shall be construed under and governed by the laws of the State of Florida. 7.5 Any failure of either party, on one or more occasions, to enforce and require the strict compliance with and performance of any of the terms and conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent such party from insisting on the strict compliance with and performance of such terms and conditions at any later time. 7.6 This Agreement comprises the entire agreement between the parties hereto with respect to the subject matter hereof and there are no agreements, undertakings, covenants or conditions concerning the subject matter hereof, whether oral or written, express or implied, that are not merged herein or superseded hereby. 7.7 The captions or headings of the Sections or other subdivisions hereof are inserted only as a matter of convenience or for reference and shall have no effect on the meaning of the provisions hereof. 7.8 All payments to be made or benefits to be provided hereunder by the Company shall be subject to reduction for any applicable payroll-related or withholding taxes. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. FAMILY STEAK HOUSES OF FLORIDA, INC. By:/s/Lewis E. Christman, Jr. ------------------------------------ Lewis E. Christman, Jr. President and Chief Executive Officer EMPLOYEE: /s/Edward B. Alexander -------------------------------------- Edward B. Alexander 10 EX-4 5 CONSULTING AGREEMENT EXHIBIT 4 CONSULTING AGREEMENT THIS CONSULTING AGREEMENT (this "Agreement") is made as of January 8, 1997, between FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida corporation (hereinafter called the "Company") and ROBERT J. MARTIN (hereinafter called "Consultant"). BACKGROUND A. Consultant has ably served the Company as an officer and director for many years, and is knowledgeable of the Company's business. Consultant has resigned as an officer of the Company, but remains a member of the Company's Board of Directors. B. The Company wishes to retain Consultant as a consultant upon the terms described in this Agreement, and Consultant wishes to agree to such terms. TERMS OF AGREEMENT In consideration of the mutual promises contained in this Agreement and other consideration, the receipt and sufficiency of which are acknowledged by each party to this Agreement, the parties agree as follows: 1. Consultancy; Consultancy Period; Termination Date. The Company hereby retains Consultant as a part-time consultant to serve as an advisor to the Company and Consultant hereby accepts such consultancy (the "Consultancy") upon the terms and conditions hereinafter set forth for a period (the "Consulting Period") beginning on the effective date of this Agreement and ending on the anniversary date hereof ("Termination Date"), unless earlier terminated. 2. Duties. As requested by the Company, Consultant shall consult with, advise and directly assist the Company with respect to any and all matters concerning the business of the Company, exclusively with and through the senior executives of the Company (the "Senior Executives"), who may be designated from time to time by the Company, but who are currently the Chief Executive Officer, Chief Operating Officer and Chief Financial Officer. During the Consultancy Period, Consultant agrees to deliver to the Company time sheets evidencing the services furnished to the Company by Consultant and the time devoted to such services. Such time sheets shall be delivered to the Company as often as Company may reasonably request, but no less often than monthly. In addition, Consultant shall keep the Senior Executives otherwise informed of the activities undertaken by him in such detail and format as the Senior Executives may reasonably request. 3. Compensation. 3.1 Services Compensation. Subject to Paragraphs 3.2, 3.3 and 3.4 hereof, the Company agrees to compensate Consultant as follows (the "Services Compensation"): (a) The Company shall pay Consultant an annual fee of Thirteen Thousand Five Hundred Dollars ($13,500) (pro rated in the case of any partial year) for his services during the Consulting Period, such annual fee to be payable in semi-monthly installments. (b) The Company shall provide Consultant through the term of this Agreement with comprehensive medical, dental and disability insurance. 3.2 Compensation in the Event of Termination by the Consultant. In the event Consultant voluntarily terminates the Consultancy prior to the Termination Date "for cause," the Company shall continue to pay him the Services Compensation for the balance of the Consulting Period, in full satisfaction of all claims of Consultant concerning this Agreement. In the event Consultant voluntarily terminates the Consultancy "without cause," the Company's obligation to pay Consultant the Services Compensation shall cease. As used in this Paragraph 3.2, "for cause" shall mean a material breach of any term of this Agreement by the Company. For purposes of this Paragraph 3.2, if Consultant voluntarily terminates the Consultancy other than "for cause," such termination shall be deemed "without cause." 3.3 Compensation in the Event of Termination by the Company. In the event the Company terminates Consultant's Consultancy "without cause," the Company shall immediately pay him the Services Compensation for the balance of the Consultancy Period in a lump sum payment as severance pay in recognition of his years of service to the Company and in consideration for the performance of his obligations under this Agreement prior to the date of such termination which Company and Consultant stipulate are and will be beneficial to the Company in the operation of its business. Such payment shall be in full satisfaction of all claims of Consultant concerning this Agreement. In the event the Company terminates the Consultancy "for cause," the Company's obligations to pay Consultant the Services Compensation shall cease. As used in this Paragraph 3.3, "for cause" shall mean: (a) At the election of the Company, upon the occurrence of gross negligence, willful misconduct or malfeasance by Consultant in the performance of his responsibilities hereunder during the course of this Agreement; (b) The material breach by Consultant of any term of this Agreement; or (c) At the election of the Company, upon the indictment of Consultant or upon Consultant entering a plea of guilty or nolo contendere to the alleged commission by Consultant, as a principal, accomplice or accessory, of a crime involving moral turpitude, or an act of fraud, embezzlement or dishonesty. Provided, however, that in the case of any such material breach the Company shall give Consultant (a) notice of the existence of and facts regarding such breach, (b) provided that such breach is capable of being cured, a 5-day opportunity to cure. For purposes of this Paragraph 3.3, any termination of the Consultancy by the Company other than "for cause" shall be deemed "without cause." 3.4 Death. This Agreement shall terminate upon the death of Consultant. In the event the Consultancy is terminated by reason of Consultant's death, the Company's obligation to pay the Services Compensation shall cease effective as of the last day of the month of the date of such death. 4. Stock Option. This Agreement shall not have any effect on the stock options heretofore granted to Consultant by the Company. For purposes of such stock options, and for those purposes only, Consultant shall continue to be regarded as an "employee" of the Company for the duration of the Consultancy Period. 5. Confidential Information. 5.1 Non-Disclosure. Except as otherwise authorized in writing by a Senior Executive, Consultant agrees that he will not disclose to any third parties confidential and/or proprietary information relating to the corporate affairs, business, operations, assets, financial condition or prospects of the Company, including without limitation, information with respect to the Company's present and prospective products or concepts then in development, systems, customers, employees, agents, and sales and marketing methods and results. The provisions of this Paragraph 5.1 shall survive the termination of the Consultancy and of this Agreement. 5.2 Limiting Access. Consultant acknowledges that the Company may establish procedures to limit his access to information relating to certain of the Company's legal or other affairs, including such affairs as to which Consultant may have, or be deemed to have, a conflict of interest. Consultant agrees to comply with any such procedures that are communicated to him in writing. 6. Expenses. If such expenses are specifically pre-approved by the Company in writing, the Company agrees to reimburse Consultant, in accordance with normal Company policies and procedures relating to substantiation, for travel, entertainment and similar Company-related business expenses incurred in connection with the Consultancy. 7. Intellectual Property. Consultant represents and agrees that he has no (and, to the extent that the issue might be resolved otherwise, hereby releases all) direct and indirect right, title, or interest in or to any intellectual property, including, without limit, all patents, copyrights and trademarks and all ideas, systems, programs or discoveries whether or not patentable or copyrightable or eligible for trademark registration and whether or not so patented, copyrighted or registered (collectively "Intellectual Property") in which his interest arose or might be deemed to have arisen in connection with his past or future relationship with the Company, all such Intellectual Property being the property of the Company. 8. Independent Contractor. Consultant shall not be considered an employee or agent of the Company (except for the sole purpose provided in Section 4 hereof), nor shall he have authority to bind the Company, without the prior written authorization of a Senior Executive. 9. Non-Compete; Non-Interference. 9.1 Non-Competition. Consultant agrees that he will not, for a period commencing on the date of this Agreement and ending two (2) years after the Termination Date (the "Non-Competition Period"), without the prior written consent of the Company, directly or indirectly, whether as principal, agent, officer, director, partner, employee, independent contractor, consultant, stockholder, licensor, or otherwise alone or in association with any other person, firm, corporation or other business organization, carry on or be engaged, concerned or take part in, or render services or advice to, or own, share in securities of any person, firm, or corporation engaged in any Competitive Business in which the Company is at the time either actively conducting, or actively seeking to expand, its business; provided, however, that ownership of two (2) percent or less of the outstanding voting securities of a publicly held corporation shall not be deemed a violation of the foregoing. As used herein, Competitive Business means the family steakhouse or family cafeteria style restaurant business located or to be located within Nassau, Baker, Clay, Duval, or St. Johns Counties, Florida, and shall not include fast food or full service restaurants. 9.2 Non-Interference. Consultant agrees that during the Non-Competition Period, he will not, without the prior written consent of the Company, directly or indirectly and whether for his own account or for the account of any other person, firm, corporation or other business organization, interfere with the Company's business relationship with its franchisor, its lenders, or any customer or employee, hire or retain as an employee, consultant or advisor any person who was an employee of, or consultant or advisor to, the Company at any time during the eighteen (18) month period preceding the date of such employment, hiring or retention, nor will he solicit, or in any manner encourage, any such employee, consultant or advisor of the Company to leave the employ of the Company. 10. Remedies. Each party shall be entitled to all remedies allowed at law and at equity in the event of any breach of this Agreement by the other party. Without prejudice to any rights and remedies otherwise available to the Company, the Company shall be entitled to, and Consultant will not oppose the granting of, equitable relief by way of injunction or decree of specific performance in the event of any breach of Paragraphs 5 or 8 of this Agreement. 11. Binding Effect; Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the company and Consultant and their respective successors, assigns, heirs and legal representatives. Insofar as Consultant is concerned, this Agreement, being personal, cannot be assigned without the Company's consent. 12. Severability. The provisions of this Agreement are severable and if any provision of this Agreement shall be invalid or unenforceable to any extent or in any application, then the remainder of such provision and this Agreement, except to such extent or in such application, shall not be affected thereby, and each and every provision of this Agreement shall be valid and enforceable to the fullest extent and in the broadest application permitted by law. 13. Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement of any such modification or amendment is sought. Either the Company or Consultant may, by an instrument in writing, waive compliance by the other party with any term or provision of this Agreement on the part of such other party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. 14. Notice. Any notice, demand, approval or other communication which may be or is required to be given under this Agreement shall be in writing and shall be deemed to have been given on the earlier of the day actually received or on the close of business on the fifth business day next following the day when deposited in the United States mail, postage prepaid, registered or certified, addressed to the Company or Consultant at their respective addresses set forth below or such other address as such party may specify by notice given pursuant to this Section 14: If to Consultant: Robert J. Martin ---------------- Jacksonville, Florida If to the Company: Family Steak Houses of Florida, Inc. 2113 Florida Boulevard Neptune Beach, Florida 32266 Attn: President and Chief Executive Officer with a copy to: G. Alan Howard, Esquire Mahoney Adams & Criser, P.A. 3400 Barnett Center 50 North Laura Street Jacksonville, Florida 32202 15. Section and Other Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of this Agreement. 16. Entire Agreement. This Agreement is the entire agreement between the Company and Consultant pertaining to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, between the Company and Consultant with respect to the subject matter hereof. 17. Counterparts. This Agreement maybe executed in any number of counterparts and each of such counterparts shall for all purposes be deemed an original, and all such counterparts shall together constitute but one and the same instrument. 18. Governing Law. This Agreement shall be construed and governed in accordance with the law of the State of Florida, applicable to agreements made and to be performed wholly within such jurisdiction. 19. Further Assurances. Each of the parties hereto shall, from time to time at the request of the other, and without further consideration, execute and deliver such other instruments and take such other actions as may be required to confer to the requesting party and his or its assignees the benefits contemplated by this Agreement. IN WITNESS WHEREOF, the Company and Consultant have executed this Agreement as of the date first above written. FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida corporation By:/s/Lewis E. Christman, Jr. ------------------------------------- Lewis E. Christman, Jr. President and Chief Executive Officer EX-5 6 FORM OF MORTGAGE RETURN TO: Lawyers Title Insurance Corporation 40 East Mitchell Drive Suite 100 Phoenix, Arizona 85012 Attention: Sheila Layne THIS INSTRUMENT PREPARED BY: Kutak Rock Sixteenth Floor 3300 North Central Avenue Phoenix, Arizona 85012 MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING THIS MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage") is made as of _______ , 1996 between FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida corporation ("Debtor"), whose address is 2113 Florida Boulevard, Neptune Beach, Florida 32266 and FFCA MORTGAGE CORPORATION, a Delaware corporation ("Mortgagee"), whose address is 17207 North Perimeter Drive, Scottsdale, Arizona 85255. PRELIMINARY STATEMENT: The capitalized terms used in this Mortgage, if not elsewhere defined herein, have the meanings set forth in Article I. Debtor holds fee simple interest in the Premises, subject to Permitted Exceptions. Debtor is executing this Mortgage for the purpose of granting the interest of Debtor in and to the Mortgaged Property (as defined in the Granting Clauses below) as security for the payment of the Obligations. The Mortgaged Property shall be and remain subject to the lien of this Mortgage and shall constitute security for the Obligations so long as the Obligations shall remain outstanding. GRANTING CLAUSES: Debtor, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, by these presents does hereby create a security interest in, mortgage, grant, bargain, sell, assign, pledge, give, transfer, set over and convey unto Mortgagee and to its successors and assigns WITH POWER OF SALE, for the benefit of Mortgagee, all of Debtor's estate, right, title and interest in, to and under any and all of the following property (the "Mortgaged Property"), subject only to Permitted Exceptions: Premises, Rents and Derivative Interests The Premises; all rents, issues, profits, royalties, income and other benefits derived from the Premises (collectively the "Rents"); all estate, right, title and interest of Debtor in and to all leases or subleases covering the Premises or any portion thereof now or hereafter existing or entered into, including, without limitation, all cash or security deposits, advance rentals and deposits or payments of similar nature; all right, title and interest of Debtor in and to all options to purchase or lease the Premises or any portion thereof or interest therein, and any greater estate in the Premises owned or hereafter acquired; all interests, estate or other claims, both in law and in equity, which Debtor now has or may hereafter acquire in the Premises; all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, and all tenements, hereditaments and appurtenances thereof and thereto, and all water rights and shares of stock evidencing the same; all right, title and interest of Debtor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Premises and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Premises; Personal Property All right, title and interest of Debtor in and to all tangible personal property now owned or hereafter acquired by Debtor and now or at any time hereafter located on or at the Premises or used in connection therewith, including, without limitation, all goods, machinery, tools, equipment, lobby and all other indoor and outdoor furniture, books, records, manuals, computer systems, furnishings, inventory, rugs, and maintenance and other supplies (the "Personal Property"); Intangibles All of Debtor's interest in all existing and future accounts, contract rights, general intangibles, files, books of account, agreements, franchise, if assignable, license and/or area development agreements, permits, licenses and certificates necessary or desirable in connection with the acquisition, ownership, leasing, construction, operation, servicing or management of the Mortgaged Property, whether now existing or entered into or obtained after the date hereof, all existing and future names under or by which the Mortgaged Property or any portion thereof may at any time be operated or known, all rights to carry on business under any such names or any variant thereof, and all existing and future telephone numbers and listings, advertising and marketing materials, trademarks and good will in any way relating to the Mortgaged Property or any portion thereof; and 2 Claims and Awards All the estate, interest, right, title, other claim or demand, including claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Debtor now has or may hereafter acquire in the Mortgaged Property, and any and all awards made for the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Mortgaged Property, including, without limitation, any awards resulting from a change of grade of streets and awards for severance damages, and Debtor hereby authorizes, directs and empowers Mortgagee, at its option, on Debtor's behalf, or on behalf of the successors or assigns of Debtor, to adjust, compromise, claim, collect and receive such proceeds and to give proper receipts and acquittances therefor. TO HAVE AND TO HOLD the Mortgaged Property hereby granted or mortgaged or intended to be granted or mortgaged, unto Mortgagee, and its successors, heirs and assigns, upon the terms, provisions and conditions set forth herein. THIS MORTGAGE SHALL SECURE THE FOLLOWING INDEBTEDNESS AND OBLIGATIONS (the "Obligations"): (i) Payment of indebtedness evidenced by the Note together with all extensions, renewals, amendments and modifications thereof; (ii) Payment of all other indebtedness and performance of all other obligations and covenants of Debtor contained in any Loan Document, together with any other instrument given to evidence or further secure the payment and performance of any obligation secured hereby or thereby; (iii) Payment of all indebtedness and performance of all other obligations and covenants under any other agreement or instrument, including, without limitation, promissory notes and guaranties, between, among or by (1) Debtor any general or limited partnership organized in accordance with the laws of any state of the United States or its territories of which Debtor or any partner, officer, director or shareholder of Debtor is a holder of a general or limited partnership interest, or any corporation or other entity affiliated with Debtor or by any partner, officer, director or shareholder of Debtor (the "Debtor Entities"), and, or for the benefit of, (2) Mortgagee or any corporation, partnership, joint venture, limited liability company, association or other form of entity affiliated with Mortgagee (the "Mortgagee Entities"); and (iv) Payment of all other sums, with interest thereon, which may hereafter be owed by Debtor or its successors or assigns pursuant to the Loan Documents to Mortgagee or its successors or assigns. 3 It is the intention of the parties hereto that the Mortgaged Property shall secure all of the Obligations presently or hereafter owed, and that the priority of the security interest created by this Mortgage for all such Obligations shall be controlled by the time of proper recording of this Mortgage. In addition, this Mortgage shall also secure unpaid balances of advances made with respect to the Mortgaged Property for the payment of taxes, assessments, insurance premiums, costs or any other advances incurred for the protection of the Mortgaged Property, together with interest thereon until paid at the rate provided for in Section 2.15 hereof, all as contemplated in this Mortgage, all of which shall constitute a part of the Obligations. This paragraph shall serve as notice to all persons who may seek or obtain a lien on the Mortgaged Property subsequent to the date of recording of this Mortgage, that until this Mortgage is released, any debt owed Mortgagee by Debtor, including advances made subsequent to the recording of this Mortgage, shall be secured with the priority afforded this Mortgage as recorded. IT IS HEREBY COVENANTED, DECLARED AND AGREED that the Note and the other Loan Documents are to be executed, delivered and secured and that the Mortgaged Property is to be held and disposed of by Mortgagee, upon and subject to the provisions of this Mortgage. ARTICLE I DEFINED TERMS Unless the context otherwise specifies or requires, the following terms shall have the meanings specified (such definitions to be applicable equally to singular and plural nouns and verbs of any tense): "Code" means the United States Bankruptcy Code, 11 U.S.C. ss.ss. 101 et seq., as amended. "De Minimis Amounts" shall mean, with respect to any given level of hazardous substance or solid waste, that level or quantity of hazardous substance or solid waste in any form or combination of forms which does not constitute a violation of any Environmental Laws and is customarily employed in, or associated with, similar businesses located in the county in which the Mortgaged Property is located. "Environmental Indemnity Agreement" means that certain Environmental Indemnity Agreement dated as of the date of this Mortgage executed by Debtor for the benefit of Mortgagee with respect to the Premises. "Environmental Laws" means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Materials, relating to 4 liability for or costs of Remediation or prevention of Releases or relating to liability for or costs of other actual or threatened danger to human health or the environment. "Environmental Laws" includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. "Environmental Laws" also includes, but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law: conditioning transfer of property upon a negative declaration or other approval of a governmental authority of the environmental condition of the property; requiring notification or disclosure of Releases or other environmental condition of the Mortgaged Property to any governmental authority or other person or entity, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with permits or other authorization for lawful activity; relating to nuisance, trespass or other causes of action related to the Mortgaged Property; and relating to wrongful death, personal injury, or property or other damage in connection with any physical condition or use of the Mortgaged Property. "Franchisor" means Ryan's Properties, Inc., a Delaware corporation, or its successors. "Hazardous Materials" means (i) any toxic substance or hazardous waste, substance or related material, or any pollutant or contaminant; (ii) radon gas, asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contains dielectric fluid containing levels of polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent, or any petroleum product; (iii) any substance, gas, material or chemical which is or may be defined as or included in the definition of "hazardous substances," "toxic substances," "hazardous materials," hazardous wastes" or words of similar import under any Environmental Laws; and (iv) any other chemical, material, gas or substance the exposure to or release of which is or may be prohibited, limited or regulated by any governmental or quasi-governmental entity or authority that asserts or may assert jurisdiction over the Mortgaged Property or the operations or activity at the Mortgaged Property, or any chemical, material, gas or substance that does or may pose a hazard to the health and/or safety of the occupants of the Mortgaged Property or the owners and/or occupants of property adjacent to or surrounding the Mortgaged Property. "Indemnified Parties" means Mortgagee and any person or entity who is or will have been involved in the origination of the loan evidenced by the Note (the "Loan"), any person or 5 entity who is or will have been involved in the servicing of the Loan, any person or entity in whose name the encumbrance created by this Mortgage is or will have been recorded, persons and entities who may hold or acquire or will have held a full or partial interest in the Loan (including, but not limited to, investors or prospective investors in the securities contemplated by Section 5.18, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties), as well as the respective directors, officers, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including but not limited to any other person or entity who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Mortgaged Property, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Mortgagee's assets and business). "Loan Agreement" means the Loan Agreement dated as of even date herewith between Debtor and Mortgagee. "Loan Documents" means this Mortgage, the Note, the Environmental Indemnity Agreement, the Loan Agreement and such other notes, deeds of trust or mortgages and other documents or instruments contemplated thereby, all as amended and supplemented. "Losses" means any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys' fees and other costs of defense). "Note" means the promissory note dated as of even date herewith in the amount of $1,300,000 executed by Debtor and payable to Mortgagee which is secured by this Mortgage and any amendments, extensions or modifications thereof. "Permitted Exceptions" means those exceptions to title to the Premises which have been approved in writing by Mortgagee. "Premises" means the parcel or parcels of real estate legally described in Exhibit A attached hereto, all rights, privileges and appurtenances therewith and all buildings, fixtures and other improvements now or hereafter located on such real estate (whether or not affixed to the real estate). 6 "Release" means any presence, release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials. "Remediation" means any response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Material, any actions to prevent, cure or mitigate any Release, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or any evaluation relating to any Hazardous Materials. "Reports" means the phase I environmental reports (and phase II environmental reports if the same are recommended by such phase I reports, respectively) to be prepared regarding each of the Premises, which Reports shall be satisfactory in form and substance to FFCA in its sole discretion. "Restoration" means the restoration, replacement or rebuilding of the Premises, or any part thereof, as nearly as possible to its value, condition and character immediately prior to any damage, destruction or Taking (as defined in Section 3.01 hereof). "State" means the State of Florida. ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR Debtor hereby represents, warrants, covenants and agrees as follows until this Mortgage has been discharged: Section 2.01. Payment of the Note. Debtor shall punctually pay, or cause to be paid, the principal, interest and all other sums to become due in respect of the Note and the Loan Documents in accordance with the Note and the Loan Documents. Section 2.02. Title to the Mortgaged Property. Debtor has good and marketable fee simple title to the Mortgaged Property, free and clear of all liens, encumbrances, charges and other exceptions to title, except Permitted Exceptions. Debtor has and shall have full power and lawful authority to grant the Mortgaged Property to Mortgagee in the manner and form herein done or intended, preserve its title to its interest in the Mortgaged Property, subject only to Permitted Exceptions, and forever warrant and defend the same to Mortgagee against the claims of all persons. This Mortgage constitutes a valid first lien upon and security interest in the Mortgaged Property. 7 Section 2.03. Organization and Status of Debtor; Enforceability. (a) Debtor has been duly organized or formed, is validly existing and in good standing under the laws of its state of incorporation or formation and is qualified as a foreign corporation, partnership or limited liability company to do business in any jurisdiction where such qualification is required. Debtor is not a "foreign corporation", "foreign partnership", "foreign trust" or "foreign estate", as those terms are defined in the Internal Revenue Code and the regulations promulgated thereunder. Debtor's United States tax identification number is correctly set forth on the signature page of this Mortgage. The persons who have executed this Mortgage on behalf of Debtor are duly authorized to do so. (b) This Mortgage constitutes the legal, valid and binding obligation of Debtor, enforceable against Debtor in accordance with its terms. Section 2.04. Litigation; Absence of Breaches or Defaults. (a) Except as set forth on Exhibit B (the "Litigation"), there are no suits, actions, proceedings or investigations pending or threatened against or involving Debtor or the Mortaged Property before any court, arbitrator, or administrative or governmental body. If any or all of the Litigation is resolved unfavorably to Debtor, such resolution will not result in any material adverse change in the contemplated business, condition or worth or operations of Debtor or the Mortgaged Property. (b) Debtor is not, and the execution, delivery and performance of this Mortgage and the documents, instruments and agreements provided for herein will not result, in any breach of or default under any other document, instrument or agreement to which Debtor is a party or by which Debtor, the Mortgaged Property or any of Debtor's property is subject or bound. Section 2.05. Franchisor Provisions; Licenses and Permits. (a) Debtor have entered into a franchise, license and/or area development agreement with Franchisor for conduct of the business at the Mortgaged Property. Such franchise, license and/or area development agreement is valid, binding and in full force and effect, permits Debtor to operate a Franchisor's restaurant on the Mortgaged Property and has a term which, upon exercise by Debtor of its renewal rights, will not expire prior to the scheduled maturity date of the Note. (b) Debtor has obtained all required licenses and permits, both governmental and private, to use and operate the Mortgaged Property in the intended manner. Section 2.06. Financial Condition; Information Provided to Mortgagee. The financial statements, all financial data and all other documents and information heretofore delivered to Mortgagee by or with respect to Debtor and/or the Mortgaged Property in connection with this Mortgage and/or relating to Debtor and/or the Mortgaged Property are true, correct and complete in all material respects, and there have been no amendments to such financial statements, financial data and other documents and information since the date such financial 8 statements, financial data, documents and other information were prepared or delivered to Mortgagee, and no material adverse change has occurred to any such financial statements, financial data, documents and other information not disclosed in writing to Mortgagee. Section 2.07. Recording. Debtor shall, upon the execution and delivery hereof and thereafter from time to time, take such actions as Mortgagee may request to cause this Mortgage, each supplement and amendment to such instrument and financing statements with respect thereto and each instrument of further assurance (collectively, the "Recordable Documents") to be filed, registered and recorded as may be required by law to publish notice and maintain the first security interest hereof upon the Mortgaged Property and to publish notice of and protect the validity of the Recordable Documents. Debtor shall, from time to time, perform or cause to be performed any other act and shall execute or cause to be executed any and all further instruments (including financing statements, continuation statements and similar statements with respect to any of said documents) requested by Mortgagee for carrying out the intention of, or facilitating the performance of, this Mortgage. If Debtor shall fail to comply with this Section, Mortgagee shall be and is hereby irrevocably appointed the agent and attorney-in-fact of Debtor to comply therewith (including the execution, delivery and filing of such financing statements and other instruments), which appointment is coupled with an interest, but this sentence shall not prevent any default in the observance of this Section from constituting an Event of Default. To the extent permitted by law, Debtor shall pay or cause to be paid recording taxes and fees incident thereto and all expenses, taxes and other governmental charges incident to or in connection with the preparation, execution, delivery or acknowledgment of the Recordable Documents, any instruments of further assurance and the Note. Section 2.08. Use; Maintenance and Repair. (a) Debtor shall use the Mortgaged Property solely for the operation of a restaurant in accordance with a franchise, license and/or area development agreement with Franchisor and for no other purpose. Except as set forth below, Debtor shall at all times while this Mortgage is in effect occupy the Mortgaged Property and diligently operate its business on the Mortgaged Property. Debtor may cease diligent operation of business for a period not to exceed 90 days and may do so only once within any five-year period while this Mortgage is in effect. If Debtor does discontinue operation pursuant to this Section, Debtor shall (i) give written notice to Mortgagee 60 days prior to the day Debtor ceases operation, (ii) provide adequate protection and maintenance of the Mortgaged Property during any period of vacancy and (iii) pay all costs necessary to restore the Mortgaged Property to their condition on the day operation of the business ceased at such time as the Mortgaged Property is reopened for Debtor's business operations or other substituted use. Notwithstanding anything herein to the contrary, Debtor shall pay monthly the principal and interest due under the Note during any period in which Debtor discontinues operation. Debtor shall not, by itself or through any lease or other type of transfer, convert the Premises to an alternative use or concept while this Mortgage is in effect without Mortgagee's consent, which consent shall not be unreasonably withheld. Mortgagee may consider any or all 9 of the following in determining whether to grant its consent, without being deemed to be unreasonable: (i) whether the converted use will be consistent with the highest and best use of the Mortgaged Property, and (ii) whether the converted use will increase Mortgagee's risks or decrease the value of the Mortgaged Property. (b) Debtor shall (i) maintain the Mortgaged Property in good condition and repair, subject to reasonable and ordinary wear and tear, free from actual or constructive waste, (ii) operate, remodel, update and modernize the Mortgaged Property in accordance with those standards adopted from time to time by Franchisor on a system-wide basis for Franchisor restaurants, with such remodeling and modernizing being undertaken in accordance with Franchisor's system-wide timing schedules for such activities, and (iii) pay all operating costs of the Premises in the ordinary course of business. Section 2.09. Compliance With Laws. (a) Debtor's use and occupation of the Mortgaged Property, and the condition thereof, including, without limitation, any Restoration, shall, at Debtor's sole cost and expense, materially comply with all applicable statutes, regulations, rules, ordinances, codes, licenses, permits, orders and approvals of any governmental agencies, departments, commissions, bureaus, boards or instrumentalities of the United States, the State and all political subdivisions thereof, including, without limitation, all health, building, fire, safety and other codes, ordinances and requirements and all applicable standards of the National Board of Fire Underwriters ("Applicable Regulations"). (b) Without limiting the generality of the other provisions of this Section, Debtor agrees that it shall be responsible for complying in all respects with the Americans with Disabilities Act of 1990, as such act may be amended from time to time, and all regulations promulgated thereunder (collectively, the "ADA"), as it affects the Mortgaged Property, including, without limitation, making required "readily achievable" changes to remove any architectural or communications barriers, and providing auxiliary aides and services within the Mortgaged Property. Debtor further agrees that any and all alterations made to the Mortgaged Property while this Mortgage is in effect will comply with the requirements of the ADA. All plans for alterations which must be submitted to Mortgagee under the provisions of Section 2.10 must include a statement from a licensed Architect or Engineer certifying that they have reviewed the plans, and that the plans comply with all applicable provisions of the ADA. Any subsequent approval or consent to the plans by the Mortgagee shall not be deemed to be a representation on Mortgagee's part that the plans comply with the ADA, which obligation shall remain with Debtor. Debtor agrees that it will defend, indemnify and hold harmless Mortgagee and Mortgagee's shareholders, directors, officers, agents, attorneys and employees from and against any and all claims, demands, causes of action, suits, proceedings, liabilities, damages (including consequential and punitive damages), losses, costs and expenses, including attorneys' fees, caused by, incurred or resulting from Debtor's failure to comply with its obligations under this Section. 10 (c) In addition to the other requirements of this Section, Debtor shall, at all times while this Mortgage is in effect, comply with all federal, state or local statutes, laws, rules, regulations, ordinances, codes, policies or rules of common law now or hereafter in effect and in each case, as amended, and any judicial or administrative interpretation thereof, including any judicial order, consent, decree or judgment, applicable to Debtor. (d) Except as set forth in the Reports, the Mortgaged Property and Debtor, are not in violation of or subject to any existing, pending or threatened investigation or inquiry by any governmental authority or to any remedial obligations under any Environmental Laws, and this representation and warranty would continue to be true and correct following disclosure to the applicable governmental authorities of all relevant facts, conditions and circumstances, if any, pertaining to the Mortgaged Property. If any such investigation or inquiry is subsequently initiated, Debtor will promptly notify Mortgagee. (e) Debtor has not obtained and is not required to obtain any permits, licenses or similar authorizations to construct, occupy, operate or use any buildings, improvements, fixtures and equipment forming a part of the Mortgaged Property by reason of any Environmental Laws. (f) Debtor has taken all reasonable steps to determine and has determined to its reasonable satisfaction that (i) no Hazardous Materials have been disposed of or otherwise Released on or about the Mortgaged Property; (ii) the Mortgaged Property does not contain Hazardous Materials or underground storage tanks; (iii) there is no threat of any Release migrating to the Mortgaged Property; (iv) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Mortgaged Property; (v) Debtor does not know of, and has not received, any written or oral notice or other communication from any person or entity (including but not limited to a governmental entity) relating to Hazardous Materials or Remediation thereof, of possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Mortgaged Property, or any actual or potential administrative or judicial proceedings in connection with any of the foregoing; and (vi) Debtor has truthfully and fully provided to Mortgagee, in writing, any and all information relating to environmental conditions in, on, under or from the Mortgaged Property that is known to Debtor and that is contained in Debtor's files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or from the Mortgaged Property. (g) Debtor covenants and agrees that: (i) all uses and operations on or of the Mortgaged Property, whether by Debtor or any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (ii) there shall be no Releases in, on, under or from the Mortgaged Property; (iii) there shall be no Hazardous Materials in, on, or under the Mortgaged Property, except in De Minimis Amounts; (iv) Debtor shall keep the Mortgaged Property free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Debtor or any other person or 11 entity (the "Environmental Liens"); (v) Debtor shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (i) below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (vi) Debtor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Mortgaged Property, pursuant to any reasonable written request of Mortgagee (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Mortgagee the reports and other results thereof, and Mortgagee and other Indemnified Parties (as defined below) shall be entitled to rely on such reports and other results thereof (provided, however, Debtor shall not be obligated and Mortgagee shall not request that Debtor be obligated to perform a Phase II environmental study of the Mortgaged Property unless such study is recommended in a Phase I environmental report prepared in connection with the Mortgaged Property; (vii) Debtor shall, at its sole cost and expense, comply with all reasonable written requests of Mortgagee to (1) reasonably effectuate Remediation of any condition (including but not limited to a Release) in, on, under or from the Mortgaged Property; (2) comply with any Environmental Law; (3) comply with any directive from any governmental authority; and (4) take any other reasonable action necessary or appropriate for protection of human health or the environment; (viii) Debtor shall not do or allow any tenant or other user of the Mortgaged Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Mortgaged Property), impairs or may impair the value of the Mortgaged Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Mortgaged Property; and (ix) Debtor shall immediately notify Mortgagee in writing of (A) any presence of Releases or threatened Releases in, on, under, from or migrating towards the Mortgaged Property; (B) any non-compliance with any Environmental Laws related in any way to the Mortgaged Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Mortgaged Property; and (E) any written or oral notice or other communication which Debtor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Materials or Remediation thereof, possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Mortgaged Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section. (h) Mortgagee and any other person or entity designated by Mortgagee, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Mortgaged Property at all reasonable times to assess any and all aspects of the environmental condition of the Mortgaged Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Mortgagee's sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, 12 and conducting other invasive testing. Debtor shall cooperate with and provide access to Mortgagee and any such person or entity designated by Mortgagee. (i) Debtor shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (excluding Losses arising out of Mortgagee's gross negligence or wilful misconduct) and costs of Remediation (whether or not performed voluntarily), engineers' fees, environmental consultants' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (i) any presence of any Hazardous Materials in, on, above, or under the Mortgaged Property; (ii) any past, present or threatened Release in, on, above, under or from the Mortgaged Property; (iii) any activity by Debtor, any person or entity affiliated with Debtor or any tenant or other user of the Mortgaged Property in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Mortgaged Property of any Hazardous Materials at any time located in, under, on or above the Mortgaged Property; (iv) any activity by Debtor, any person or entity affiliated with Debtor or any tenant or other user of the Mortgaged Property in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Mortgaged Property, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (v) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Mortgaged Property or operations thereon, including but not limited to any failure by Debtor, any person or entity affiliated with Debtor or any tenant or other user of the Mortgaged Property to comply with any order of any governmental authority in connection with any Environmental Laws; (vi) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Mortgaged Property; (vii) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Section; (viii) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Mortgaged Property, including but not limited to costs to investigate and assess such injury, destruction or loss; (ix) any acts of Debtor or other users of the Mortgaged Property in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by such Debtor or other users, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (x) any acts of Debtor or other users of the Mortgaged Property, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Debtor or such other users, from which there is a Release, or a threatened Release of any Hazardous Material which causes the incurrence of costs for Remediation; (xi) any personal injury, wrongful death, or property 13 damage arising under any statutory or common law or tort law theory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Mortgaged Property; and (xii) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations pursuant to this Section. (j) The obligations of Debtor and the rights and remedies of Mortgagee set forth in this Section are independent from those of Debtor pursuant to the Environmental Indemnity Agreement. Furthermore, such obligations of Debtor and rights and remedies of Mortgagee shall survive the termination, expiration and/or release of the Loan Agreement, the Note, the other Loan Documents, the Environmental Indemnity Agreement and/or the judicial or nonjudicial foreclosure of this Mortgage by Mortgagee or the delivery of a deed-in-lieu of foreclosure for the Premises by Debtor to Mortgagee. Section 2.10. Alterations and Improvements. Debtor shall not alter the exterior, structural, plumbing or electrical elements of the Mortgaged Property in any manner without the consent of Mortgagee, which consent shall not be unreasonably withheld or conditioned; provided, however, Debtor may undertake nonstructural alterations to the Mortgaged Property costing less than $50,000 without Mortgagee's consent. If Mortgagee consents to the making of any such alterations, the same shall be made by Debtor at Debtor's sole expense by a licensed contractor and according to plans and specifications approved by Mortgagee and subject to such other conditions as Mortgagee shall require. Any work at any time commenced by Debtor on the Mortgaged Property shall be prosecuted diligently to completion, shall be of good workmanship and materials and shall comply fully with all the terms of this Mortgage. Upon completion of any alterations or any Restoration, Debtor shall promptly provide Mortgagee with (i) evidence of full payment to all laborers and materialmen contributing to the alterations, (ii) a certificate from Debtor stating that all alterations shall have been completed in conformity with the plans and specifications, (iii) a certificate of occupancy, if required, and (iv) any other documents or information reasonably requested by Mortgagee. Notwithstanding anything in the foregoing paragraph to the contrary, Debtor may make such alterations and improvements to the Mortgaged Property as are contemplated by Section 2(B) of the Loan Agreement without Mortgagee's consent. Section 2.11. After-Acquired Property. All right, title and interest of Debtor in and to all improvements, alterations, substitutions, restorations and replacements of, and all additions and appurtenances to, the Mortgaged Property, hereafter acquired by or released to Debtor, immediately upon such acquisition or release and without any further granting by Debtor, shall become part of the Mortgaged Property and shall be subject to the lien hereof fully, completely and with the same effect as though now owned by Debtor and specifically described in the Granting Clauses hereof. Debtor shall execute and deliver to Mortgagee any further assurances, mortgages, grants, conveyances or assignments thereof as the Mortgagee may reasonably require 14 to subject the same to the lien hereof. Debtor may remove items of equipment and other items of Personal Property from the Mortgaged Property provided the Mortgaged Property remains fully stocked and operational for the purposes permitted hereunder or Debtor replaces such items of equipment or other Personal Property with comparable or better items of equipment or other Personal Property. Section 2.12. Taxes. (a) Debtor shall do or cause to be done everything necessary to preserve the lien hereof without expense to Mortgagee, including, without limitation, paying and discharging or causing to be paid and discharged, whether or not payable directly by Debtor or subject to withholding at the source, (i) all taxes, assessments, levies, fees, water and sewer rents and charges and all other governmental charges, general, special, ordinary or extraordinary, and all charges for utility or communications services, which may at any time be assessed, levied or imposed upon Debtor, the Mortgaged Property, this Mortgage, the Obligations or the revenues, rents, issues, income and profits of the Mortgaged Property or which may arise in respect of the occupancy, use, possession or operation thereof, (ii) all income, excess profits, sales, gross receipts and other taxes, duties or imposts, whether similar or not in nature, assessed, levied or imposed by any governmental authority on Debtor, the Mortgaged Property or the revenues, rents, issues, income and profits of the Mortgaged Property (iii) all lawful claims and demands of mechanics, laborers, materialmen and others which, if unpaid, might create a lien on the Mortgaged Property, or on the revenues, rents, issues, income and profits of the Mortgaged Property, unless Debtor shall contest the amount or validity thereof in accordance with subsection (b). (b) Debtor may, at its own expense, contest or cause to be contested (in the case of any item involving more than $1000.00, after prior written notice to Mortgagee), by appropriate legal proceedings conducted in good faith and with due diligence, the amount or validity or application, in whole or in part, of any item specified in subsection (a) or lien therefor, provided that (i) such proceeding shall suspend the collection thereof from the Mortgaged Property or any interest therein, (ii) neither the Mortgaged Property nor any interest therein would be in any danger of being sold, forfeited or lost by reason of such proceedings, (iii) no Event of Default has occurred and is continuing, (iv) Debtor shall have deposited with Mortgagee adequate reserves for the payment of the taxes, together with all interest and penalties thereon, unless paid in full under protest, and (v) Debtor shall have furnished the security as may be required in the proceeding or as may be required by Mortgagee to insure payment of any contested taxes. Section 2.13. Insurance. (a) Debtor shall maintain with respect to the Mortgaged Property, at its sole expense, the following types and amounts of insurance (which may be included under a blanket insurance policy if all the other terms hereof are satisfied), in addition to such other insurance as Mortgagee may reasonably require from time to time: (i) Insurance against loss, damage or destruction by fire and other casualty, including theft, vandalism and malicious mischief, flood (if the Premises are in a location 15 designated by the Federal Secretary of Housing and Urban Development as a flood hazard area), earthquake (if the Premises are in an area subject to destructive earthquakes within recorded history), boiler explosion (if there is any boiler upon the Premises), plate glass breakage, sprinkler damage (if the Premises have a sprinkler system), all matters covered by a standard extended coverage endorsement, special coverage endorsement commonly known as an "all risk" endorsement and such other risks as Mortgagee may reasonably require, insuring the Mortgaged Property for not less than 100% of their full insurable replacement cost. (ii) Comprehensive general liability and property damage insurance, including a products liability clause, covering Mortgagee and Debtor against bodily injury liability, property damage liability and automobile bodily injury and property damage liability, including without limitation any liability arising out of the ownership, maintenance, repair, condition or operation of the Mortgaged Property or adjoining ways, streets or sidewalks and, if applicable, insurance covering Mortgagee, against liability arising from the sale of liquor, beer or wine on the Premises. Such insurance policy or policies shall contain a broad form contractual liability endorsement under which the insurer agrees to insure Debtor's obligations under Section 5.16 hereof to the extent insurable, and a "severability of interest" clause or endorsement which precludes the insurer from denying the claim of either Debtor or Mortgagee because of the negligence or other acts of the other, shall be in amounts of not less than $1,000,000.00 per injury and occurrence with respect to any insured liability, whether for personal injury or property damage, or such higher limits as Mortgagee may reasonably require from time to time, and shall be of form and substance satisfactory to Mortgagee. (b) Business income insurance equal to 100% of the principal and interest payable under the Note for a period of not less than six months. (c) State Worker's compensation reserves in the statutorily mandated limits for Florida self-insurers, reinsurance for workers compensation risk in an aggregate amount not less than $500,000 or such greater amount as Mortgagee may from time to time require and such other insurance as may be necessary to comply with applicable laws. All insurance policies shall: (i) Provide for a waiver of subrogation by the insurer as to claims against Mortgagee, its employees and agents; (ii) Provide that such insurance cannot be unreasonably cancelled, invalidated or suspended on account of the conduct of Debtor, its officers, directors, employees or agents; 16 (iii) Provide that any "no other insurance" clause in the insurance policy shall exclude any policies of insurance maintained by Mortgagee and that the insurance policy shall not be brought into contribution with insurance maintained by Mortgagee; (iv) Contain a standard without contribution mortgage clause endorsement in favor of Mortgagee and any other lender designated by Mortgagee; (v) Provide that the policy of insurance shall not be terminated, cancelled or substantially modified without at least thirty (30) days' prior written notice to Mortgagee and to any lender covered by any standard mortgage clause endorsement; (vi) Provide that the insurer shall not have the option to restore the Premises if Mortgagee elects to terminate this Mortgage in accordance with the terms hereof; (vii) Be issued by insurance companies licensed to do business in the state in which the Premises is located and which are rated A:VI or better by Best's Insurance Guide or otherwise approved by Mortgagee; and (viii) Provide that the insurer shall not deny a claim because of the negligence of Debtor. It is expressly understood and agreed that the foregoing minimum limits of insurance coverage shall not limit the liability of Debtor for its acts or omissions as provided in this Mortgage. All insurance policies (with the exception of worker's compensation insurance to the extent not available under statutory law) shall designate Mortgagee as additional insured as its interests may appear and shall be payable as set forth in Article III hereof. All such policies shall be written as primary policies, with deductibles not to exceed 10% of the amount of coverage. Any other policies, including any policy now or hereafter carried by Mortgagee, shall serve as excess coverage. Debtor shall procure policies for all insurance for periods of not less than one year and shall provide to Mortgagee certificates of insurance or, upon Mortgagee's request, duplicate originals of insurance policies evidencing that insurance satisfying the requirements of this Mortgage is in effect at all times. Notwithstanding anything in the foregoing to the contrary, Debtor shall have the right to satisfy the requirements set forth in this subsection (c) provided that (i) Debtor complies fully with any Florida statutory requirements regarding State Worker's compensation insurance and any requirements or regulations pertaining to self-insurance thereof. Section 2.14. Impound Account. Upon the occurrence of an Event of Default under this Mortgage or any other Loan Document, after the giving of notice and the expiration of any applicable cure period, Mortgagee may require Debtor to pay to Mortgagee sums which will provide an impound account (which shall not be deemed a trust fund) for paying up to the next 17 one year of taxes, assessments and/or insurance premiums. Upon such requirement, Mortgagee will estimate the amounts needed for such purposes and will notify Debtor to pay the same to Mortgagee in equal monthly installments, as nearly as practicable, in addition to all other sums due under this Mortgage. Should additional funds be required at any time, Debtor shall pay the same to Mortgagee on demand. Debtor shall advise Mortgagee of all taxes and insurance bills which are due and shall cooperate fully with Mortgagee in assuring that the same are paid. Mortgagee may deposit all impounded funds in accounts insured by any federal or state agency and may commingle such funds with other funds and accounts of Mortgagee. Interest or other gains from such funds, if any, shall be the sole property of Mortgagee. In the event of any default by Debtor, Mortgagee may apply all impounded funds against any sums due from Debtor to Mortgagee. Mortgagee shall give to Debtor an annual accounting showing all credits and debits to and from such impounded funds received from Debtor. Section 2.15. Advances by Mortgagee. Mortgagee may make advances to perform any of the covenants contained in this Mortgage on Debtor's behalf, and all sums so advanced shall be secured hereby prior to the Note. Debtor shall repay on demand all sums so advanced with interest thereon at the then applicable Adjustable Rate (as defined in the Note) plus 5% (or the highest rate permitted by law, whichever is less), such interest to be computed from and including the date of the making of such advance to and including the date of such repayment. Section 2.16. Negative Covenants. Debtor agrees that Debtor shall not, without the prior written consent of Mortgagee, sell, convey, mortgage, grant, bargain, encumber, pledge, assign, or otherwise transfer the Mortgaged Property or any part thereof or permit the Mortgaged Property or any part thereof to be sold, conveyed, mortgaged, granted, bargained, encumbered, pledged, assigned, or otherwise transferred. A sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer within the meaning of this Section shall be deemed to include, but not limited to, (a) an installment sales agreement wherein Debtor agrees to sell the Mortgaged Property or any part thereof for a price to be paid in installments; (b) an agreement by Debtor leasing all or any part of the Mortgaged Property or a sale, assignment or other transfer of, or the grant of a security interest in, Debtor's right, title and interest in and to any Leases or any Rents; (c) if Debtor is a party to a merger or the voluntary or involuntary sale, conveyance, transfer or pledge of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock pursuant to which an aggregate of more than 25% of such corporation's stock shall be vested in a party or parties who are not now stockholders; (d) if Debtor or any general or limited partner or any member of Debtor is a limited or general partnership or joint venture, the change, removal or resignation of a general partner, limited partner or managing partner or the transfer or pledge of the partnership interest of any general partner, limited partner or managing partner or any profits or proceeds relating to such partnership interest; and (e) if Debtor or any general or limited partner or member of Debtor is a limited liability company, the change, removal or resignation of a managing member or the transfer of the membership interest of any managing member or any profits or proceeds 18 relating to such membership interest. Notwithstanding the foregoing, a transfer by devise or descent or by operation of law upon the death of a member, partner or stockholder of Debtor or any general or limited partner or member thereof shall not be deemed to be a sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer within the meaning of this Section. Mortgagee reserves the right to condition the consent required hereunder upon a modification of the terms hereof and on assumption of the Note, this Mortgage and the other Loan Documents as so modified by the proposed transferee, payment of Mortgagee's expenses incurred in connection with such transfer, the approval by a rating agency selected by Mortgagee of the proposed transferee, the proposed transferee's continued compliance with the covenants set forth in this Mortgage, or such other conditions as Mortgagee shall determine in its sole discretion to be in the interest of Mortgagee. Mortgagee shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Obligations immediately due and payable upon Debtor's sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the Mortgaged Property without Mortgagee's consent. This provision shall apply to every sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Mortgagee has consented to any previous sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the Mortgaged Property. Section 2.17. Financial Statements. Within 45 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of Debtor, Debtor shall deliver to Mortgagee (i) complete financial statements of Debtor including a balance sheet, profit and loss statement, statement of changes in financial condition and all other related schedules for the fiscal period then ended; and (ii) income statements for the business at the Mortgaged Property. All such financial statements shall be prepared in accordance with generally accepted accounting principles, consistently applied from period to period, and shall be certified to be accurate and complete by Debtor (or the Treasurer or other appropriate officer of Debtor). Debtor understands that Mortgagee is relying upon such financial statements and Debtor represents that such reliance is reasonable. In the event that Debtor's property and business at the Mortgaged Property is ordinarily consolidated with other business for financial statement purposes, such financial statements shall be prepared on a consolidated basis showing separately the sales, profits and losses, assets and liabilities pertaining to the Mortgaged Property with the basis for allocation of overhead of other charges being clearly set forth. The financial statements delivered to Mortgagee need not be audited, but Debtor shall deliver to Mortgagee copies of any audited financial statements of Debtor which may be prepared, as soon as they are available. Section 2.18. Franchisor Requirements. In addition to the requirements set forth in this Mortgage, Debtor, in its ownership, use, occupancy and maintenance of the Mortgaged Property shall comply with all requirements of its franchise, license and/or area development agreement 19 with Franchisor. Debtor hereby consents to Mortgagee providing information it obtains to Franchisor and to Mortgagee obtaining from Franchisor information which Franchisor receives relating to Debtor's operation of its business on the Premises. Section 2.19. Incorporation of Representations and Warranties. The representations and warranties of Debtor set forth in the Loan Agreement are incorporated by reference into this Mortgage as if stated in full in this Mortgage. ARTICLE III POSSESSION, USE AND RELEASE OF THE MORTGAGED PROPERTY Section 3.01. Casualty or Condemnation. Debtor, immediately upon obtaining knowledge of any casualty to any portion of the Mortgaged Property or of any proceeding or negotiation for the taking of all or any portion of the Mortgaged Property in condemnation or other eminent domain proceedings, shall notify Mortgagee of such casualty, proceeding or negotiation. Any award, compensation or other payment resulting from such casualty or condemnation or eminent domain proceeding, as applicable, shall be applied as set forth below. Mortgagee may participate in any condemnation or eminent domain proceeding, and Debtor will deliver or cause to be delivered to Mortgagee all instruments requested by Mortgagee to permit such participation. (a) Casualty. (i) In the event of any material damage to or destruction of the Mortgaged Property or any part thereof, Debtor will promptly give written notice to Mortgagee, generally describing the nature and extent of such damage or destruction. No damage to or destruction of the Mortgaged Property shall relieve Debtor of its obligation to pay any monetary sum due under the Loan Documents at the time and in the manner provided in the Loan Documents. (ii) In the event of any damage to or destruction of the Mortgaged Property or any part thereof, Debtor, whether or not the insurance proceeds, if any, on account of such damage or destruction shall be sufficient for the purpose, at its expense, shall promptly commence and complete the Restoration or prepay the Note in full in accordance with the provisions of the Note with respect thereto. (iii) Insurance proceeds received by Mortgagee and Debtor on account of any occurrence of damage to or destruction of the Mortgaged Property or any part thereof, less the costs, fees and expenses incurred by Mortgagee and Debtor in the collection thereof, including, without limitation, adjuster's fees and expenses and attorneys' fees and expenses (the "Net Insurance Proceeds"), shall be paid to (1) Debtor if the amount of such Net Insurance Proceeds is less than $25,000 and applied by Debtor toward the cost of the Restoration, and (2) Mortgagee if the amount of such Net Insurance Proceeds 20 is $25,000 or greater. Net Insurance Proceeds paid to Mortgagee shall be held and disbursed by Mortgagee, or as Mortgagee may from time to time direct, to prepay the Note upon request of Debtor pursuant to Section 3.01(a)(ii) above, or as the Restoration progresses, to pay or reimburse Debtor for the cost of the Restoration, upon written request of Debtor accompanied by evidence, satisfactory to Mortgagee, that (v) the Restoration is in full compliance with all applicable laws, regulations, restrictions and requirements, whether governmental or private, (w) the amount requested has been paid or is then due and payable and is properly a part of such cost, (x) there are no mechanics' or similar liens for labor or materials theretofore supplied in connection with the Restoration, (y) if the estimated cost of the Restoration exceeds the Net Insurance Proceeds, Debtor has deposited into an escrow satisfactory to Mortgagee such excess amount, which sum will be disbursed pursuant to escrow instructions satisfactory to Mortgagee, and (z) the balance of such Net Insurance Proceeds, together with the funds deposited into escrow, if any, pursuant to the preceding subsection (y), after making the payment requested will be sufficient to pay the balance of the cost of the Restoration. Upon receipt by Mortgagee of evidence satisfactory to it that the Restoration has been completed and the cost thereof paid in full, and that there are no mechanics' or similar liens for labor or materials supplied in connection therewith, the balance, if any, of such Net Insurance Proceeds shall be paid to Debtor. If an Event of Default has occurred and is continuing at the time of the damage or destruction to the Mortgaged Property, all Net Insurance Proceeds shall be paid to Mortgagee, and Mortgagee may retain and apply the Net Insurance Proceeds toward the Obligations whether or not then due and payable, in such order, priority and proportions as Mortgagee in its discretion shall deem proper, or to cure such Event of Default, or, in Mortgagee's discretion, Mortgagee may pay such Net Insurance Proceeds in whole or in part to Debtor to be applied toward the cost of the Restoration. If Mortgagee shall receive and retain Net Insurance Proceeds, the lien of this Mortgage shall be reduced only by the amount received and retained by Mortgagee and actually applied by Mortgagee in reduction of the Obligations. (b) Eminent Domain. (i) In case of a taking of all or any part of the Mortgaged Property or the commencement of any proceedings or negotiations which might result in a taking, for any public or quasi-public purpose by any lawful power or authority by exercise of the right of condemnation or eminent domain or by agreement between Mortgagee, Debtor and those authorized to exercise such right ("Taking"), Debtor will promptly give written notice thereof to Mortgagee, generally describing the nature and extent of such Taking. Mortgagee shall file and prosecute on behalf of Mortgagee and Debtor any and all claims for an award, and all awards and other payments on account of a Taking shall be paid to Mortgagee. (ii) In case of a Taking of the whole of the Mortgaged Property, other than for temporary use ("Total Taking"), or in case of a Taking of less than all of the Mortgaged Property ("Partial Taking"), these Loan Documents shall remain in full force 21 and effect. Debtor, whether or not the awards or payments, if any, on account of such Partial Taking shall be sufficient for the purpose (but provided they are made available by Mortgagee for such purpose), at its own cost and expense, will promptly commence and complete the Restoration. In case of a Partial Taking, other than a temporary use, of such a substantial part of the Mortgaged Property as shall result in the Mortgaged Property remaining after such Partial Taking being unsuitable for use, such Taking shall be deemed a Total Taking. (iii) In case of a temporary use of the whole or any part of the Mortgaged Property by a Taking, these Loan Documents shall remain in full force and effect without any reduction of any monetary sum payable under these Loan Documents. Subject to the application provisions below, Debtor shall be entitled to the entire award for such Taking, whether paid by damages, rent or otherwise. In any proceeding for such Taking, Mortgagee shall have the right to intervene and participate; provided that, if such intervention shall not be permitted, Debtor shall consult with Mortgagee, its attorneys and experts, and make all reasonable efforts to cooperate with Mortgagee in the prosecution or defense of such proceeding. At the termination of any such use or occupation of the Mortgaged Property, Debtor will, at its own cost and expense, promptly commence and complete the Restoration. (iv) Awards and other payments on account of a Taking, less the costs, fees and expenses incurred by Mortgagee and Debtor in connection with the collection thereof, including, without limitation, attorneys' fees and expenses, shall be applied as follows: (x) Net awards and payments received on account of a Total Taking shall be allocated as follows: (aa) There shall be paid to the Mortgagee an amount up to the sum of the outstanding principal, including all sums advanced by Mortgagee hereunder, and interest under the Note, all as of the date on which such payment is made, such amount shall be applied first against all sums advanced by Mortgagee under this Mortgage, second against the accrued but unpaid interest on the Note, and third to the remaining unpaid principal amount of the Note. (bb) Any remaining balance shall be paid to Debtor. (y) Net awards and payments received on account of a Partial Taking shall be held and allocated as follows: (i) toward the cost of the Restoration, such application of net awards and other payments to be made substantially in the manner provided in Section 3.01(a)(iii) of this Mortgage; (ii) to Mortgagee to 22 cure any default first, in the Note and second, in this Mortgage; (iii) there shall be paid to Mortgagee, as the holder of this Mortgage, an amount equal to that portion of any unpaid principal amount of the Note, and any interest accrued thereon, bearing the same relationship to the total unpaid principal amount of the Note, and any interest accrued thereon, all as of the date on which such payment is made, as the square footage in the Mortgaged Property taken on account of such Partial Taking, bears to the total square footage in the Mortgaged Property prior to such Partial Taking, and such amount shall be applied against the unpaid principal amount of the Note; and (iv) any remaining balance shall be paid to Debtor. (z) Net awards and payments received on account of a Taking for temporary use shall be held and applied to the payment of the monthly installments of combined interest and principal becoming due under the Note, until such Taking for temporary use is terminated and the Restoration, if any, has been completed; provided, however, that, if any portion of any such award or payment is made by reason of any damage to or destruction of the Mortgaged Property, such portion shall be held and applied as provided in Section 3.01(a)(iii) hereof. The balance, if any, of such awards and payments shall be paid to Debtor unless Debtor is in default under the Loan Documents, in which event such awards and payments shall be paid to Mortgagee to cure such default first, in the Note and second, in this Mortgage. (v) Notwithstanding the foregoing, if at the time of any Taking or at any time thereafter Debtor shall be in default under the Loan Documents and such default shall be continuing, Mortgagee is hereby authorized and empowered, in the name and on behalf of Debtor and otherwise, to file and prosecute Debtor's claim, if any, for an award on account of any Taking and to collect such award and apply the same, after deducting all costs, fees and expenses incident to the collection thereof, to the curing of such default and any other then existing default under the Loan Documents. Section 3.02. Conveyance in Anticipation of Condemnation, Granting of Easements, Etc. If no default shall have occurred and be continuing, Debtor may, from time to time with respect to its interest in the Mortgaged Property, and with Mortgagee's prior written consent, (i) sell, assign, convey or otherwise transfer any interest therein to any person legally empowered to take such interest under the power of eminent domain, (ii) grant easements and other rights in the nature of easements, (iii) release existing easements or other rights in the nature of easements which are for the benefit of the Mortgaged Property, (iv) dedicate or transfer unimproved portions of the Mortgaged Property for road, highway or other public purposes, (v) execute petitions to have the Mortgaged Property annexed to any municipal corporation or utility district, and (vi) execute and deliver to any person any instrument appropriate to confirm or effect such grants, releases, dedications and transfers. 23 Section 3.03. Mortgagee's Power. At any time, or from time to time, without liability therefor, Mortgagee, without affecting the personal liability of any person for payment of the Obligations or the effect of this Mortgage upon the remainder of said Mortgaged Property, may from time to time without notice (i) release any part of said Mortgaged Property, (ii) consent in writing to the making of any map or plat thereof, (iii) join in granting any easement thereon, (iv) join in any extension agreement or any agreement subordinating the lien or charge hereof, (v) release any person so liable, (vi) extend the maturity or alter any of the terms of any Obligations, (vii) grant other indulgences, (viii) take or release any other or additional security for any Obligation, (ix) make compositions or other arrangements with debtors in relation thereto, or (x) advance additional funds to protect the security hereof and pay or discharge the Obligations, and all amounts so advanced shall be secured hereby shall be due and payable upon demand by Mortgagee. ARTICLE IV EVENTS OF DEFAULT AND REMEDIES Section 4.01. Events of Default. (a) Each of the following shall be an event of default under this Mortgage (an "Event of Default"): (i) If any representation or warranty of Debtor herein was false in any respect when made or, in the event that any such representation or warranty is continuing, becomes false in any respect at any time, or if Debtor renders any false statement or account; (ii) If any principal, interest or other monetary sum due under the Note, this Mortgage or any other Loan Document is not paid within five days after the date when due, or if Debtor fails to pay, prior to delinquency, any taxes, assessments or other charges the failure of which to pay will result in the imposition of a lien against the Mortgaged Property by pursuant to Applicable Regulations; (iii) If Debtor becomes insolvent within the meaning of the Code, files or notifies Mortgagee that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due; (iv) If Debtor fails to observe or perform any of the covenants, conditions, or obligations of this Mortgage or any other Loan Document; 24 (v) If there is a breach or default under (a) any franchise, license and/or area development agreement permitting Debtor to operate the Mortgaged Property in the manner authorized or if such franchise, license and/or area development agreement otherwise terminates or expires, (b) any guaranty of Debtor's obligations under this Mortgage, or (c) any other agreement or instrument, including, without limitation, promissory notes and guaranties, between, among or by any of the Debtor Entities and, or for the benefit of, any of the Mortgagee Entities; or (vi) If the franchise, license and/or area development agreement with Franchisor with respect to the Premises expires or is terminated prior to its scheduled expiration date. (b) If any Event of Default occurs pursuant to subsection (a)(ii) above, Mortgagee shall not be entitled to exercise its remedies set forth in Section 4.02 below unless and until Mortgagee shall have given Debtor notice thereof and a period of five days from the delivery of such notice shall have elapsed without such Event of Default being cured. (c) If any such event does not involve the payment of any principal, interest or other monetary sum due under the Note, is not willful or intentional, does not place any rights or property of Mortgagee in immediate jeopardy, and is within the reasonable power of Debtor to promptly cure after receipt of notice thereof, all as determined by Mortgagee in its reasonable discretion, then such event shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Mortgagee shall have given Debtor notice thereof and a period of 30 days shall have elapsed, during which period Debtor may correct or cure such event, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind. If such event cannot reasonably be cured within such 30-day period, as determined by Mortgagee in its reasonable discretion, and Debtor is diligently pursuing a cure of such event, then Debtor shall have a reasonable period to cure such event, which shall in no event exceed 90 days after receiving notice of the event from Mortgagee. If Debtor shall fail to correct or cure such event within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind. Section 4.02. Remedies. Upon the occurrence of any Event of Default subject to the limitation set forth in Section 4.01(b), Mortgagee may declare all Obligations to be due and payable, and the same shall thereupon become due and payable without any presentment, demand, protest or notice (including notice of intent to accelerate) of any kind except as otherwise provided herein. Furthermore, upon the occurrence of any Event of Default, Mortgagee may: (i) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy 25 of its security, enter upon and take possession of the Mortgaged Property or any part thereof and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Mortgaged Property, or part thereof or interest therein, increase the income therefrom or protect the security hereof and, with or without taking possession of the Mortgaged Property, take any action described herein, sue for or otherwise collect the Rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection including reasonable attorneys' fees, upon any Obligations, all in such order as Mortgagee may determine, and pursue any remedy available under Chapter 697.07, Florida Statutes, as amended, supplemented or superseded from time to time. The entering upon and taking possession of the Mortgaged Property, the taking of any action described herein, the collection of such Rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any Event of Default or notice of default or invalidate any act done in response to such Event of Default or pursuant to such notice of default and, notwithstanding the continuance in possession of the Mortgaged Property or the collection, receipt and application of rents, issues or profits, Mortgagee shall be entitled to exercise every right provided for in any of the Loan Documents or by law upon any Event of Default, including the right to exercise the power of sale herein conferred; (ii) Commence an action to foreclose this Mortgage pursuant to this Mortgage in a single parcel or in several parcels, appoint a receiver, specifically enforce any of the covenants hereof or sell the Mortgaged Property pursuant to the power of sale herein conferred; (iii) Exercise any or all of the remedies available to a secured party under the Uniform Commercial Code as adopted in the State ("UCC"), including, without limitation: (1) Either personally or by means of a court appointed receiver, commissioner or other officer, take possession of all or any of the Personal Property and exclude therefrom Debtor and all others claiming under Debtor, and thereafter hold, store, use, operate, manage, maintain and control, make repairs, replacements, alterations, additions and improvements to and exercise all rights and powers of Debtor in respect of the Personal Property or any part thereof. In the event Mortgagee demands or attempts to take possession of the Personal Property in the exercise of any rights under any of the Loan Documents, Debtor promises and agrees to promptly turn over and deliver complete possession thereof to Mortgagee; (2) Without notice to or demand upon Debtor, make such payments and do such acts as Mortgagee may deem necessary to protect its security interest in the Personal Property, including, without limitation, paying, purchasing, 26 contesting or compromising any encumbrance, charge or lien which is prior to or superior to the security interest granted hereunder and, in exercising any such powers or authority, to pay all expenses incurred in connection therewith; (3) Require Debtor to assemble the Personal Property or any portion thereof, at the Premises, and promptly to deliver such Personal Property to Mortgagee, or an agent or representative designated by it. Mortgagee, and its agents and representatives, shall have the right to enter upon any or all of Debtor's premises and property to exercise Mortgagee's rights hereunder; (4) Sell, lease or otherwise dispose of the Personal Property at public sale, with or without having the Personal Property at the place of sale, and upon such terms and in such manner as Mortgagee may determine. Mortgagee may be a purchaser at any such sale; and (5) Unless the Personal Property is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Mortgagee shall give Debtor at least 10 days' prior written notice of the time and place of any public sale of the Personal Property or other intended disposition thereof. Such notice may be delivered to Debtor at the address set forth at the beginning of this Mortgage and shall be deemed to be given as provided herein; (iv) Apply any sums then deposited in the impound account described in Section 2.14 toward payment of the taxes, assessment and insurance premiums for the Mortgaged Property and/or as a credit on the Obligations in such priority and proportion as Mortgagee may determine in its sole discretion; and (v) If held by Mortgagee, surrender the insurance policies maintained pursuant to Section 2.13, collect the unearned insurance premiums and apply such sums as a credit on the Obligations in such priority and proportion as Mortgagee in its sole discretion shall deem proper, and in connection therewith, Debtor hereby appoints Mortgagee as agent and attorney-in-fact (which is coupled with an interest and is therefore irrevocable) for Mortgagee to collect such insurance premiums. If Mortgagee elects to sell Debtor's interest in the Mortgaged Property by exercise of the power of sale herein contained, Mortgagee shall cause such sale to be performed in the manner then required by law. (a) Mortgagee cause to be recorded, published and delivered such notices of default and notices of sale as may then be required by law and by this Mortgage. Thereafter, Mortgagee shall sell the Mortgaged Property at the time and place of sale fixed by it, either as a whole, or in separate lots or parcels or items as Mortgagee shall 27 deem expedient, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale, or as otherwise may then be required by law. Such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Debtor or Mortgagee, may purchase at such sale. (b) As may be permitted by law, Mortgagee shall apply the proceeds of sale to payment of (i) first, to payment of all costs, fees and expenses, including attorneys' fees and expenses incurred by the Mortgagee in exercising the power of sale or foreclosing this Mortgage, and (ii) second, as directed by Mortgagee or as may be required by law. (c) Mortgagee may in the manner provided by law postpone sale of all or any portion of the Mortgaged Property. Section 4.03. Appointment of Receiver. If an Event of Default shall have occurred, Mortgagee, as a matter of right and without notice to Debtor or anyone claiming under Debtor, and without regard to the then value of the Mortgaged Property or the interest of Debtor therein, or the insolvency of Debtor or the then-owner of the Mortgaged Property, may seek the appointment of a receiver for the Mortgaged Property upon ex parte application to any court of the competent jurisdiction; provided, however, Mortgagee shall use good faith efforts to provide telephonic notice to Edward B. Alexander, or such other party designated by Debtor in a written notice to FFCA, of such application prior to filing of such ex parte application. Debtor waives any right to any hearing or notice of hearing prior to the appointment of a receiver. Such receiver shall be empowered (a) to take possession of the Mortgaged Property and any businesses conducted by Debtor thereon and any business assets used in connection therewith, (b) to exclude Debtor and Debtor's agents, servants and employees from the Mortgaged Property, or, at the option of the receiver, in lieu of such exclusion, to collect a fair market rental from any such persons occupying any part of the Mortgaged Property, (c) to collect the rents, issues, profits and income therefrom, (d) to complete any construction that may be in progress, (e) to continue the development, marketing and sale of the Mortgaged Property, (f) to do such maintenance and make such repairs and alterations as the receiver deems necessary, (g) to use all stores of materials, supplies and maintenance equipment on the Mortgaged Property and replace such items at the expense of the receivership estate, (h) to pay all taxes and assessments against the Mortgaged Property, all premiums for insurance thereon, all utility and other operating expenses, and all sums due under any prior or subsequent encumbrance, (i) to request that Mortgagee advance such funds as may reasonably be necessary to the effective exercise of the receiver's powers, on such terms as may be agreed upon by the receiver and Mortgagee, but not in excess of the Default Rate (as defined in the Note), and (j) generally to do anything that Debtor could legally do if Debtor were in possession of the Mortgaged 28 Property. All expenses incurred by the receiver or his agents, including obligations to repay funds borrowed by the receiver, shall constitute a part of the Obligations. Any revenues collected by the receiver shall be applied first to the expenses of the receivership, including reasonable attorneys' fees incurred by the receiver and by Mortgagee, together with interest thereon at the highest rate of interest applicable in the Note from the date incurred until repaid, and the balance shall be applied toward the Obligations or in such other manner as the court may direct. Section 4.04. Remedies Not Exclusive. Mortgagee shall be entitled to enforce payment and performance of any Obligations and to exercise all rights and powers under this Mortgage or under any Loan Documents or other agreement or any laws now or hereafter in force, notwithstanding some or all of the Obligations may now or hereafter be otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this Mortgage nor its enforcement, whether by court action or pursuant to the power of sale or other powers herein contained, shall prejudice or in any manner affect Mortgagee's right to realize upon or enforce any other security now or hereafter held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce this Mortgage and any other security now or hereafter held by Mortgagee in such order and manner as it may in its absolute discretion determine. No remedy herein conferred upon or reserved to Mortgagee is intended to be exclusive of any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Loan Documents to Mortgagee, or to which Mortgagee may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Mortgagee. Mortgagee may pursue inconsistent remedies. The acceptance by Mortgagee of any sum after the same is due shall not constitute a waiver of the right either to require prompt payment, when due, of all other sums hereby secured or to declare a subsequent Event of Default as herein provided. The acceptance by Mortgagee of any sum in an amount less than the sum then due shall be deemed an acceptance on account only and upon condition that it shall not constitute a waiver of the obligation of Debtor to pay the entire sum then due, and failure of Debtor to pay such entire sum then due as contemplated by Section 4.01(b) shall be an Event of Default, notwithstanding such acceptance of such amount on account, as aforesaid. Mortgagee shall be, at all times thereafter and until the entire sum then due shall have been paid, and notwithstanding the acceptance by Mortgagee thereafter of further sums on account, or otherwise, entitled to exercise all rights in this instrument conferred upon them or either of them, and the right to proceed with a sale under any notice of default, or an election to sell, or the right to exercise any other rights or remedies hereunder, shall in no way be impaired, whether any of such amounts are received prior or subsequent to such proceeding, election or exercise. Consent by Mortgagee to any action or inaction of Debtor which is subject to consent or approval of Mortgagee hereunder shall not be deemed a waiver of the right to require such consent or approval to future or successive actions or inactions. 29 Section 4.05. Possession of Mortgaged Property. In the event of a trustee's sale or foreclosure sale hereunder and after the time of such sale, Debtor occupies the portion of the Mortgaged Property so sold, or any part thereof, Debtor shall immediately become the tenant of the purchaser at such sale, which tenancy shall be a tenancy from day to day, terminable at the will of either tenant or landlord, at a reasonable rental per day based upon the value of the portion of the Mortgaged Property so occupied, such rental to be due and payable daily to the purchaser. An action of unlawful detainer shall lie if the tenant holds over after a demand in writing for possession of such Mortgaged Property; and this agreement and a trustee's or sheriff's deed shall constitute a lease and agreement under which the tenant's possession arose and continued. Nothing contained in this Mortgage shall be construed to constitute Mortgagee as a "mortgagee in possession" in the absence of its taking actual possession of the Mortgaged Property pursuant to the powers granted herein. Section 4.06. Waiver of Rights. To the extent permitted by law, Debtor waives the benefit of all laws now existing or that hereafter may be enacted (i) providing for any appraisement before sale of any portion of the Mortgaged Property, or (ii) in any way extending the time for the enforcement of the collection of the Obligations or creating or extending a period of redemption from any sale made in collecting the Obligations. To the full extent Debtor may do so under applicable law, Debtor agrees that Debtor will not at any time insist upon, plea, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, extension, redemption or homestead exemption, and Debtor, for Debtor, Debtor's representatives, successors and assigns, and for any and all persons ever claiming any interest in the Mortgaged Property, to the extent permitted by law, hereby waives and releases all rights of redemption, valuation, appraisement, stay of execution, homestead exemption, notice of election to mature or declare due the whole of the Obligations and marshaling in the event of foreclosure of the liens hereby created. If any law referred to in this Section and now in force, of which Debtor, Debtor's heirs, devisees, representatives, successors and assigns or other person might take advantage despite this Section, shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to preclude the application of this Section. Debtor expressly waives and relinquishes any and all rights, remedies and defenses that Debtor may have or be able to assert by reason of the laws of the State pertaining to the rights, remedies and defenses of sureties. Section 4.07. Relief From Stay. In the event that Debtor commences a case under the Code or is the subject of an involuntary case that results in an order for relief under the Code, subject to court approval, Mortgagee shall thereupon be entitled and Debtor irrevocably consents to relief from any stay imposed by Section 362 of the Code on or against the exercise of the rights and remedies otherwise available to Mortgagee as provided in the Loan Documents and Debtor hereby irrevocably waives its rights to object to such relief. In the event Debtor shall commence a case under the Code or is the subject of an involuntary case that results in an order for relief under the Code, Debtor hereby agrees that no injunctive relief against Mortgagee shall be sought under Section 105 or other provisions of the Code by Debtor or other person or entity 30 claiming through Debtor, nor shall any extension be sought of the stay provided by Section 362 of the Code. Section 4.08. Cash Collateral. To the fullest extent allowed by applicable law, Debtor hereby acknowledges and agrees that in the event that Debtor commences a case under the Code or is the subject of an involuntary case that results in an order for relief under the Code: (i) that all of the Rents are, and shall for purposes be deemed to be, "proceeds, product, offspring, rents, or profits" of the Premises covered by the lien of this Mortgage, as such quoted terms are used in Section 552(b) of the Code; (ii) that in no event shall Debtor assert, claim or contend that any portion of the Rents are, or should be deemed to be, "accounts" or "accounts receivable" within the meaning of the Code and/or applicable state law; (iii) that the Rents are and shall be deemed to be in any such bankruptcy proceeding "cash collateral" of Mortgagee as that term is defined in Section 363 of the Code; and (iv) that Mortgagee has valid, effective, perfected, enforceable and "choate" rights in and to the Rents without any further action required on the part of Mortgagee to enforce or perfect its rights in and to such cash collateral, including, without limitation, providing notice to Debtor under Section 546(b) of the Code. Section 4.09. Assignment of Rents and Leases. (a) Debtor hereby assigns, transfers, conveys and sets over to Mortgagee all of Debtor's estate, right, title and interest in, to and under all leases, whether existing on the date hereof or hereafter entered into (including any extensions, modifications or amendments thereto) relating to the Premises (the "Leases"), if any, together with all rights, powers, privileges, options and other benefits of Debtor as the lessor or lessee under the Leases regarding the current tenants and any future tenants, and all the rents, revenues, profits and income from the Leases with respect to the Premises, excluding Debtor's accounts receivable and those of its tenants and subtenants, including those now due, past due or to become due. Debtor irrevocably appoints Mortgagee its true and lawful attorney-in-fact, at the option of Mortgagee, at any time and from time to time upon an Event of Default, to take possession and control of the Premises, pursuant to Debtor's rights as lessor under the Leases, and to demand, receive and enforce payment, to give receipts, releases and satisfaction and to sue, in the name of Debtor or Mortgagee, for all of the rents, revenues, profits and income thereof. It is intended by Debtor and Mortgagee that the assignment set forth herein constitutes an absolute assignment and not merely an assignment for additional security. The consideration received by Debtor to execute and deliver this assignment and the liens and security interests created herein is legally sufficient and will provide a direct economic benefit to Debtor. Notwithstanding the foregoing, however, so long as there is no Event of Default, Debtor shall have a license, revocable upon an Event of Default, to possess and control the Premises and collect and receive all rents, revenues, profits and income. Upon an Event of Default, such license shall be automatically revoked. The assignment of Rents and Leases contained in this Mortgage are intended to provide Mortgagee with all the rights and remedies of mortgagees pursuant to Section 697.07, Florida Statutes, as may be amended from time to time. However, in no event shall this reference diminish, alter, impair, or affect any other rights or remedies of Mortgagee. 31 (b) Upon any Event of Default, Mortgagee may, at any time without notice (except if required by applicable law), either in person, by agent or by a court-appointed receiver, regardless of the adequacy of Mortgagee's security, and at its sole election (without any obligation to do so), enter upon and take possession and control of the Premises, or any part thereof, to perform all acts necessary and appropriate to operate and maintain the Premises, including, but not limited to, execute, cancel or modify the Leases, make repairs to the Premises, execute or terminate contracts providing for the management or maintenance of the Premises, all on such terms as are deemed best to protect the security of this assignment, and in Mortgagee's or Debtor's name, sue or otherwise collect such rents, revenues, profits and income from the Premises as specified in this Mortgage as the same become due and payable, including, but not limited to, rents then due and unpaid. Mortgagee may so sue for or otherwise collect such rents, revenues, profits and income with or without taking possession of the Premises. All rents collected shall be held by Debtor as trustee for the benefit of Mortgagee only. Debtor agrees that upon an Event of Default, each tenant of the Premises shall make its rent payable to and pay such rent to Mortgagee (or Mortgagee's agents) on Mortgagee's written demand therefor, delivered to such tenant personally, by mail, or by delivering such demand to each rental unit, without any liability on the part of said tenant to inquire further as to the existence of an Event of Default by Debtor. (c) All rents, revenues, profits and income collected subsequent to any Event of Default shall be applied at the direction of, and in such order as determined by, Mortgagee to the costs, if any, of taking possession and control of and managing the Premises and collecting such amounts, including, but not limited to, reasonable attorney's fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the Premises, premiums on insurance policies, taxes, assessments and other charges on the Premises, and the costs of discharging any obligation or liability of Debtor as lessor or landlord of the Premises and to the sums secured by this assignment. Mortgagee or the receiver shall have access to the books and records used in the operation and maintenance of the Premises and shall be liable to account only for those rents actually received. Mortgagee shall not be liable to Debtor, anyone claiming under or through Debtor or anyone having an interest in the Premises by reason of anything done or left undone by Mortgagee hereunder, except to the extent of Mortgagee's gross negligence or willful misconduct. Any entering upon and taking possession and control of the Premises by Mortgagee or the receiver and any application of rents, revenues, profits and income as provided herein shall not cure or waive any Event of Default hereunder or invalidate any other right or remedy of Mortgagee under applicable law or provided therein. 32 ARTICLE V MISCELLANEOUS Section 5.01. Satisfaction. If and when the Obligations shall have become due and payable (whether by lapse of time or by acceleration or by the exercise of the privilege of prepayment), and Debtor shall pay or cause to be paid (provided such payment is permitted or required hereby) the full amount thereof and shall also pay or cause to be paid all other sums payable hereunder by Debtor with respect to the Obligations, then this Mortgage shall be void (otherwise it shall remain in full force and effect in law and equity forever) and Mortgagee agrees to execute an instrument evidencing the satisfaction of all obligations under this Mortgage and releasing this Mortgage which shall be prepared and recorded at Debtor's sole expense. Section 5.02. Limitation of Rights of Others. Nothing in this Mortgage is intended or shall be construed to give to any person, other than Debtor, Mortgagee and the holder of the Note, any legal or equitable right, remedy or claim under or in respect of this Mortgage or any covenant, condition or provision herein contained. Section 5.03. Severability. In case any one or more of the provisions contained herein or in the Note shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Mortgage shall be construed as if such provision had never been contained herein or therein. Section 5.04. Notices; Amendments; Waiver. All notices, demands, designations, certificates, requests, offers, consents, approvals, appointments and other instruments given pursuant to this Mortgage (collectively called "Notices") shall be in writing and given by (i) hand delivery, (ii) facsimile, (iii) express overnight delivery service or (iv) certified or registered mail, return receipt requested and shall be deemed to have been delivered upon (a) receipt, if hand delivered, (b) transmission, if delivered by facsimile, (c) the next business day, if delivered by express overnight delivery service, or (d) the third business day following the day of deposit of such notice with the United States Postal Service, if sent by certified or registered mail, return receipt requested; provided, however, if a Notice is deposited with the United States Postal Service pursuant to this item (d), such Notice shall also be sent in accordance with not less than one of the other methods set forth in this Section 5.04. Notices shall be provided to the parties and addresses (or facsimile numbers, as applicable) specified below: 33 If to Debtor: Family Steak Houses of Florida, Inc. 2113 Florida Boulevard Neptune Beach, Florida 32266 Attention: Edward B. Alexander Telephone: (904) 249-4197 Telecopy: (904) 249-1466 If to Mortgagee: Dennis L. Ruben, Esq. Senior Vice President and General Counsel FFCA Mortgage Corporation 17207 North Perimeter Drive Scottsdale, AZ 85255 Telephone: (602) 585-4500 Telecopy: (602) 585-2226 or to such other address or such other person as either party may from time to time hereafter specify to the other party in a notice delivered in the manner provided above. Whenever in this Mortgage the giving of Notice is required, the giving thereof may be waived in writing at any time by the person or persons entitled to receive such Notice. Except as in this Mortgage otherwise expressly provided, (i) this Mortgage may not be modified except by an instrument in writing executed by Debtor and Mortgagee and (ii) no requirement hereof may be waived at any time except by a writing signed by the party against whom such waiver is sought to be enforced, nor shall any waiver be deemed a waiver of any subsequent breach or default. Section 5.05. Counterparts. This Mortgage may be executed in any number of counterparts and each thereof shall be deemed to be an original; and all such counterparts shall constitute but one and the same instrument. Section 5.06. Successors and Assigns. All of the provisions herein contained shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto, to the same extent as if each such successor and assign were in each case named as a party to this Mortgage. Wherever used, the singular shall include the plural, the plural shall include the singular and the use of any gender shall include all genders. Section 5.07. Headings. The headings appearing in this Mortgage have been inserted for convenient reference only and shall not modify, define, limit or expand the express provisions of this Mortgage. Section 5.08. Security Agreement. With respect to the Personal Property or any portion of the Mortgaged Property which constitutes fixtures or other property governed by the UCC, this Mortgage shall constitute a security agreement between Debtor as the debtor and Mortgagee as the secured party, and Debtor hereby grants to Mortgagee a security interest in such portion 34 of the Mortgaged Property. Cumulative of all other rights of Mortgagee hereunder, Mortgagee shall have all of the rights conferred upon secured parties by the UCC. Debtor will execute and deliver to Mortgagee all financing statements that may from time to time be required by Mortgagee to establish and maintain the validity and priority of the security interest of Mortgagee, or any modification thereof, and all costs and expenses of any searches required by Mortgagee. Mortgagee may exercise any or all of the remedies of a secured party available to it under the UCC with respect to such property, and it is expressly agreed that if upon an Event of Default Mortgagee should proceed to dispose of such property in accordance with the provisions of the UCC, 10 days' notice by Mortgagee to Debtor shall be deemed to be reasonable notice under any provision of the UCC requiring such notice; provided, however, that Mortgagee may at its option dispose of such property in accordance with Mortgagee's rights and remedies with respect to the real property pursuant to the provisions of this Mortgage, in lieu of proceeding under the UCC. Debtor shall give advance notice in writing to Mortgagee of any proposed change in Debtor's name, identity, or business form or structure and will execute and deliver to Mortgagee, prior to or concurrently with the occurrence of any such change, all additional financing statements that Mortgagee may require to establish and maintain the validity and priority of Mortgagee's security interest with respect to any of the Mortgaged Property described or referred to herein. Section 5.09. Effective as a Financing Statement. This Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all fixtures included within the Mortgaged Property and is to be filed for record in the real estate records of each county where any part of the Mortgaged Property (including said fixtures) is situated. This Mortgage shall also be effective as a financing statement covering any other Mortgaged Property and may be filed in any other appropriate filing or recording office. The mailing address of Debtor is the address of Debtor set forth in the introductory paragraph of this Mortgage, and the address of the Mortgagee from which information concerning the security interests hereunder may be obtained is the address of Mortgagee as set forth in the introductory paragraph of this Mortgage. A carbon, photographic or other reproduction of this Mortgage or of any financing statement relating to this Mortgage shall be sufficient as a financing statement for any of the purposes referred to in this Section. Section 5.10. Characterization; Interpretation. It is the intent of the parties hereto that the business relationship created by the Note, this Mortgage and the other Loan Documents is solely that of creditor and debtor and has been entered into by both parties in reliance upon the economic and legal bargains contained in the Loan Documents. None of the agreements contained in the Loan Documents is intended, nor shall the same be deemed or construed, to create a partnership between Mortgagee and Debtor, to make them joint venturers, to make Debtor an agent, legal representative, partner, subsidiary or employee of Mortgagee, nor to make Mortgagee in any way responsible for the debts, obligations or losses of Debtor. Debtor 35 acknowledges that Mortgagee and Franchisor are not affiliates, agents, partners or joint venturers, nor do they have any other legal, representative or fiduciary relationship. Mortgagee and Debtor acknowledge and warrant to each other that each has been represented by independent counsel and has executed this Mortgage after being fully advised by said counsel as to its effect and significance. This Mortgage shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument, the relative bargaining powers of the parties or the domicile of any party. Section 5.11. Time of the Essence. Time is of the essence in the performance of each and every obligation under this Mortgage. Section 5.12. Document Review. In the event Debtor makes any request upon Mortgagee requiring Mortgagee or its attorneys to review and/or prepare (or cause to be reviewed and/or prepared) any document or documents in connection with or arising out of or as a result of this Mortgage, then, except as expressly stated elsewhere herein, Debtor shall reimburse Mortgagee or its designee promptly upon Mortgagee's demand therefor a reasonable processing and reviewing fee in an amount not less than $500.00 for each such request. Section 5.13. Estoppel Certificate. (a) At any time, and from time to time, Debtor agrees, promptly and in no event later than 10 days after a request from Mortgagee, to execute, acknowledge and deliver to Mortgagee a certificate in the form supplied by Mortgagee, certifying: (1) the date to which principal and interest have been paid under the Note and the amount thereof then payable; (2) that no notice has been received by Debtor of any default under this Mortgage which has not been cured, except as to defaults specified in the certificate; (3) the capacity of the person executing such certificate, and that such person is duly authorized to execute the same on behalf of Debtor; and (4) any other information reasonably requested by Mortgagee in connection with the Loan Agreement. (b) If Debtor shall fail or refuse to sign a certificate in accordance with the provisions of this Section within 10 Business Days following a request by Mortgagee, Debtor irrevocably constitutes and appoints Mortgagee as its attorney-in-fact to execute and deliver the certificate to any such third party, it being stipulated that such power of attorney is coupled with an interest and is irrevocable and binding. Section 5.14. Limitation of Interest. Notwithstanding anything to the contrary contained in any of the Loan Documents, the obligations of Debtor to Mortgagee under the Note, this Mortgage and any other Loan Documents are subject to the limitation that payments of interest and late charges to Mortgagee shall not be required to the extent that receipt of any such payment by Mortgagee would be contrary to provisions of applicable law limiting the maximum rate of interest that may be charged or collected by Mortgagee. The portion of any such payment received by Mortgagee that is in excess of the maximum interest permitted by such 36 provisions of law shall be credited to the principal balance of the Note or if such excess portion exceeds the outstanding principal balance of the Note, then such excess portion shall be refunded to Debtor. All interest paid or agreed to be paid to Mortgagee shall, to the extent permitted by applicable law, be amortized, prorated, allocated and/or spread throughout the full term of the Note (including, without limitation, the period of any renewal or extension thereof) so that interest for such full term shall not exceed the maximum amount permitted by applicable law. Section 5.15. Forum Selection; Jurisdiction; Venue; Choice of Law. Debtor acknowledges that this Mortgage was substantially negotiated in the State of Arizona, the executed Mortgage was delivered in the State of Arizona, all payments under the Loan Documents will be delivered in the State of Arizona and there are substantial contacts between the parties and the transactions contemplated herein and the State of Arizona. For purposes of any action or proceeding arising out of this Mortgage, the parties hereto expressly submit to the jurisdiction of all federal and state courts located in the State of Arizona. Debtor consents that it may be served with any process or paper by registered mail or by personal service within or without the State of Arizona in accordance with applicable law. Furthermore, Debtor waives and agrees not to assert in any such action, suit or proceeding that it is not personally subject to the jurisdiction of such courts, that the action, suit or proceeding is brought in an inconvenient forum or that venue of the action, suit or proceeding is improper. The creation of this Mortgage and the rights and remedies of Mortgagee with respect to the Mortgaged Property, as provided herein and by the laws of the State, shall be governed by and construed in accordance with the internal laws of the State without regard to principles of conflict of law. With respect to other provisions of this Mortgage, this Mortgage shall be governed by the internal laws of the State of Arizona. Nothing in this Section shall limit or restrict the right of Mortgagee to commence any proceeding in the federal or state courts located in the State to the extent Mortgagee deems such proceeding necessary or advisable to exercise remedies available under the Mortgage or the other Loan Documents. Section 5.16. Indemnification. Except for the gross negligence or willful misconduct of Mortgagee, Debtor shall indemnify and hold harmless Mortgagee and Mortgagee's shareholders, directors, officers, agents, attorneys and employees from and against any and all claims, demands, causes of action, suits, proceedings, liabilities, damages (including consequential and punitive damages), losses, costs and expenses, including attorneys' fees, caused by, incurred or resulting from its operations of or relating in any manner to the Mortgaged Property, whether relating to their original design or construction, latent defects, alteration, maintenance, use by Debtor or any person thereon, supervision or otherwise, or from any breach of, default under or failure to perform any term or provision of this Mortgage by Debtor, its officers, employees, agents or other persons. It is expressly understood and agreed that Debtor's obligations under this Section shall survive the expiration or earlier termination of this Mortgage for any reason. 37 Section 5.17. Waiver of Jury Trial and Punitive, Consequential, Special and Indirect Damages. MORTGAGEE, BY ACCEPTING THIS MORTGAGE, AND DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS MORTGAGE, THE RELATIONSHIP OF MORTGAGEE AND DEBTOR, DEBTOR'S USE OR OCCUPANCY OF THE MORTGAGED PROPERTY, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM MORTGAGEE WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY DEBTOR AGAINST MORTGAGEE OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS MORTGAGE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY DEBTOR OF ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. Section 5.18. Transfer of Loan. Mortgagee may, at any time, sell, transfer or assign the Note, this Mortgage and the other Loan Documents, and any or all servicing rights with respect thereto, or grant participations therein or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement as contemplated by the Loan Agreement. Section 5.19. Future Advances. This Mortgage secures future advances of any nature whatsoever including, without limitation, those made pursuant to this Mortgage and pursuant to Section 2(b) of the Loan Agreement. This Mortgage secures advances up to a maximum indebtedness of $1,950,000 outstanding at any time plus accrued and unpaid interest. It also secures certain other obligations of the Debtor to Mortgagee as provided for by other provisions of this Mortgage. Without limiting any other provisions of this Mortgage, this Mortgage also shall secure repayment of the unpaid balances of advances made with respect to the Mortgaged Property for the payment of taxes, assessments, maintenance charges, insurance premiums or costs similar or dissimilar incurred for the protection of the Mortgaged Property or for the lien of this Mortgage, expenses incurred by Mortgagee by reason of default by the Debtor, or advances made as provided in any Loan Document, including, without limitation, accruals of interest and additional interest on sale or refinancing as provided in the Note, which accruals and 38 additional interest may be added to principal and themselves bear interest and any reserve as provided in the Note. Debtor acknowledges that Mortgagee has not obligated itself to make any advances nor has any representative of Mortgagee in any manner indicated any intention to make any such advance other than as expressly set forth in the Loan Agreement. IN WITNESS WHEREOF, Debtor has caused this Mortgage to be executed and delivered by its duly authorized officers as of the day and year first above written. DEBTOR: FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida corporation By: - ---------------------- -------------------------------- WITNESS Printed Name: -------------------- Title: ----------------------------- - -------------------- [Corporate Seal] Printed Name: - ---------------------- WITNESS: - ---------------------- Printed Name: 39 STATE OF ] ] SS. COUNTY OF ] I HEREBY CERTIFY that on this __ day______, before me__________, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgements, the foregoing instrument was acknowledged before me by____________, the___________ of Family Steak Houses of Florida, Inc., a Florida corporation, freely and voluntarily under authority duly vested in him by said corporation and that the seal affixed thereto is the true corporate seal of said corporation. He is personally known to me or has produced _________ as identification. WITNESS my hand and official seal in the County and State last aforesaid this __ day of ______ , 1996. Notary Public Typed, printed or stamped name of Notary Public My Commission Expires: 40 EX-7 7 LETTER TO SHAREHOLDERS EXHIBIT 7 (Letterhead of Family Steak Houses of Florida, Inc.) DEAR SHAREHOLDERS: You are all familiar with the fact that on March 6, 1997, Bisco Industries, Inc. ("Bisco") commenced a $.90 per share cash tender offer (the "Offer") to the public shareholders of Family Steak Houses of Florida, Inc. (the "Company"). After due consideration of the terms and conditions of the Offer and other matters it deemed relevant, at a meeting on March 18, 1997, the Board of Directors of the Company unanimously determined to recommend that the shareholders reject the Bisco tender offer. The Board based its decision on its opinion and consideration of a number of factors, including: 1. the current market price and trading range of shares of the Company's common stock and the current business, assets, financial condition and future prospects of the Company, including the recent refinancing of its long-term debt, recent new restaurant opening and its renewed momentum for growth; 2. its franchisor's, Ryan's Family Steak Houses, Inc., concern about the potentially disruptive influence of Bisco, which could lead to the Company losing its exclusive franchise. 3. its lender's, Franchise Finance Corporation of America, confidence in the Company's operations and current management team after extensive due diligence in connection with the recent $15 million financing and their concern regarding Bisco's financial strength, management expertise and undefined plans for the Company; 4. the lack of information provided by Bisco with respect to its strategies for the Company; 5. the lack of depth in Bisco's management team, its apparent lack of experience and expertise in the franchised restaurant industry and its apparently limited financial resources; 6. the range of values for the Company revealed in a valuation study prepared by a nationally-recognized investment banking firm; 7. the Board's belief that it may be able to enter into an arrangement with a third party other than Bisco that could provide greater financial resources, a higher price per share, and better management expertise in the Company's operations; 8. the Board's belief that it might be able to negotiate a higher offer price per share from Bisco; 9. the opinion of most shareholders who had contacted the Company that the price of the Offer was too low and their stated intent not to tender their shares in response to the Offer; 10. the Offer for only 30% of the outstanding shares of the Company's common stock could, upon its consummation, result in the Company being controlled by a person with no expertise in the restaurant industry, little financial resources and no experience managing a publicly traded corporation; and 11. the impact of any changes in the Company's operations, including the disposition of restaurants mentioned as a possible strategy in the Bisco's Offer materials, on the Company's 1,400 employees and its customers, suppliers and other constituencies including the communities in which its facilities are located. These factors are discussed in greater detail in the enclosed Schedule 14D-9 which we have filed with the Securities and Exchange Commission today. Therefore, the Board recommends that its shareholders NOT tender their shares in response to the tender offer of Bisco Industries, Inc. As stated in its offer materials, Bisco will only pay for shares tendered if it is satisfied, in its sole discretion, that the Florida Control Share Act does not apply to its Offer. The Control Share Act is a Florida state law enacted to protect shareholders from, among other things, being forced to accept an inadequate offer for their shares. However, unless the Board of Directors approves Bisco's Offer or the shareholders either vote for a resolution to grant voting rights to shares acquired by Bisco or adopt a Bylaw amendment to "opt out" of the Control Share Act at the annual meeting of shareholders scheduled for June 17, 1997, any shares acquired by Bisco through the Offer will have no voting rights. The Board has determined not to take any action that would make the Control Share Act inapplicable to the shares acquired by Bisco. At the March 18, 1997 meeting, the Board of Directors also decided to declare a dividend of one Right for each outstanding share of the Company's common stock under a shareholder rights plan previously adopted, pending certain conditions, at the February 11, 1997 meeting of the Board of Directors. The Board believes that the shareholder rights plan will provide the Company with additional time to negotiate an increase in the Offer, to consider alternatives to the Offer, and to insure that any acquisition of the Company occurs on terms that provide fair value to all shareholders. The terms and conditions of the shareholder rights plan are outlined in the enclosed Summary of Key Features of Shareholder Rights Plan of Family Steak Houses of Florida, Inc. The Board of Directors also adopted Amended and Restated Bylaws of the Company (the "Bylaws") in response to Bisco's Offer. The revisions to the Bylaws institute a classified Board of Directors, impose certain timing and notice requirements on proposals and director nominations made by shareholders, and authorize the Company to appoint inspectors of elections and consents to determine the validity and effect of shareholder votes, proxies, consents and revocations of consent. These revisions to the Bylaws are intended to provide the Company with additional notice of, and to protect the Company from, coercive tactics proposed by persons trying to exert control over the Company. We are enclosing for your review the Company's Press Release published on March 19, 1997, the Schedule 14D-9, and the Summary of Key Features of the Company's Shareholder Rights Plan. If you have already sent your shares in to Bisco, you can have them returned to you by filling out the enclosed yellow withdrawal form or, if your shares are held through a bank or broker, by contacting your representative at that firm. If you have any questions or need assistance in withdrawing your shares, please call our information agent, Corporate Investor Communications at 1-800-932-8498. We will keep you advised of further developments. Very truly yours, Lewis E. Christman, Jr. President and Chief Executive Officer EX-8 8 PRESS RELEASE DATED MARCH 19, 1997 Wednesday, March 19, 1997 Board of Family Steak Houses, Inc. Recommends Rejection of Tender Offer by Bisco Industries, Inc., Adopts Shareholders Rights Plan and Amends Bylaws JACKSONVILLE, March 19 -- Family Steak Houses of Florida, Inc. ("FSH") (NASDAQ: RYFL) announced today that its Board of Directors recommends that its shareholders reject the tender offer commenced by Bisco Industries, Inc. ("Bisco") on March 6, 1997, to purchase up to 2,600,000 shares of common stock for $.90 per share. After consideration of the terms and conditions of the tender offer and other relevant matters, the Board of the Company unanimously determined that the $.90 per share amount of the offer is inadequate and the offer is not in the best interests of Family Steak Houses of Florida, Inc. and its shareholders. Lewis E. Christman, Jr., President and Chief Executive Officer of FSH stated, "The Board considered a variety of factors in making its determination to reject the offer, including the current market price of FSH's stock, FSH's current financial condition, its recent refinancing of its long-term debt and resulting ability to open new restaurants, the lack of information on Bisco's plans for FSH, the apparent lack of expertise of Bisco and its management in FSH's business operations, Bisco's lack of significant financial resources, the uncertainty expressed by FSH's franchisor and lender about the possibly disruptive influence of Bisco on FSH, the structure of the tender offer, the opinion of those shareholders who have contacted FSH that the offer price was too low, the range of values for the Company shown in the valuation study prepared by an nationally recognized investment banking firm, the impact of any operational changes instituted by Bisco, which could include the disposition of restaurants, on the Company's 1,400 employees, customers, suppliers and communities it serves, and other relevant data. We also considered the likelihood that the Board could negotiate a more favorable transaction with another entity or a higher offer price from Bisco." The Board's recommendation is discussed in greater detail in a letter to shareholders and a Schedule 14D-9 that will be sent to all shareholders of record today. The tender offer is conditioned upon, among other things, Bisco being satisfied that Section 607.0902 of the Florida Business Corporation Act (the "Florida Control Share Act") shall be inapplicable to the offer or Bisco otherwise being satisfied that the Florida Control Share Act will not deny voting rights to shares acquired through the offer. In connection with its rejection of the tender offer, the Board determined to take no action to render the Florida Control Share Act inapplicable. The Board also determined to accelerate the record date for a shareholder rights plan previously adopted by the Board, subject to review and approval by the rights agent, and declared a dividend of one Right for each outstanding share of its common stock held as of March 19, 1997. "The Board has been studying shareholder rights plans and other methods of protecting shareholders from unfair, coercive takeover tactics, and had approved adoption of a rights plan, subject to review and execution by the rights agent, at its February 1997 Board of Directors meeting", said Mr. Christman. "In light of the tender offer, the Board decided to accelerate implementation of the rights plan. The rights plan is intended to provide the Board with additional time to negotiate with Bisco, to consider alternatives to the tender offer, and to insure that any acquisition of control of the Company occurs on terms that provide fair value to all shareholders," Christman said. The rights plan is designed to deter coercive and unfair takeover tactics and is not intended to prevent an acquisition of FSH on terms that represent fair value to all shareholders. It will be described in greater detail in a letter that will be sent to all shareholders of record as of March 19, 1997. Under the plan, each share of FSH common stock will have Rights attached to such shares. Until the Distribution Date (as defined below), the Rights will be transferred with and only with the shares of common stock. Separate certificates for the Rights will be issued as soon as practicable following the Distribution Date to holders of record of the common stock as of the Distribution Date. The Rights will be exercisable and will trade separately from the Common Stock upon the earlier to occur of the following (a "Distribution Date"): (a) The tenth business day after the date of public announcement that a person or group of affiliated or associated persons have become the beneficial owners of 15% or more of the outstanding shares of FSH common stock or voting securities representing 15% or more of the total voting power (such a person is defined as an "Acquiring Person"), or (b) The tenth business day or such later date determined by the Board of Directors after the first public announcement of a tender or exchange offer, which, upon consummation, would result in a person or a group being the beneficial owner of 15% or more of the outstanding shares of common stock (or 15% or more of the total voting power), or (c) The tenth business day after a majority of the Board who are not officers of FSH have determined that a person is an Adverse Person (which is defined in the rights agreement). In light of the tender offer filed by Bisco on March 6, 1997, the Board elected to postpone the Distribution Date which would have otherwise been triggered under paragraph (b) above until April 15, 1997. - 2 - If (i) a person becomes the beneficial owner of 15% or more of the then outstanding shares of FSH common stock or voting power (except pursuant to certain business combinations or an offer for all outstanding shares of FSH common stock and all other voting securities which the independent and disinterested directors of FSH determine to be fair to and otherwise in the best interests of FSH and its shareholders) or (ii) any person is determined to be an Adverse Person (either (i) or (ii) being a "Flip-in Event"), each holder of a Right (with the exception of an Adverse or Acquiring Person) will thereafter have the right to receive, upon exercise, FSH common stock having a value equal to no less than two times the exercise price of the Right, which is $5.00, subject to adjustment. However, Rights are not exercisable following the occurrence of a Flip-in Event until such time as the Rights are no longer redeemable by FSH. In the event of certain business combinations involving FSH, each holder of a Right may receive, upon exercise, common stock of the acquiring company having a value equal to two times the exercise price of the Right. FSH may redeem each Right for $0.001 at any time before the earliest of (i) the tenth (10th) business day after a person or group becomes an Acquiring Person, (ii) the tenth (10th) business day after the Board's determination that a person is an Adverse Person, or (iii) March 17, 2007. In addition to adoption of the rights plan, the Board of Directors adopted certain revisions to FSH's bylaws to institute a classified Board of Directors, to impose certain timing and notice requirements on proposals and director nominations made by shareholders and to authorize FSH to appoint inspectors of elections and consents to determine the validity and effect of shareholder votes, proxies, consents and revocations of consent. These bylaw revisions are intended to provide FSH with additional notice of, and help protect FSH from, coercive tactics proposed by persons trying to exert control over the Company. Family Steak Houses of Florida, Inc., is a Florida corporation, with corporate offices located in Jacksonville, Florida. FSH is the exclusive franchisee for Ryan's Family Steak Houses in North and Central Florida. FSH presently operates 25 Ryan's restaurants in Florida, including seven in the Jacksonville area. CONTACT: Edward Alexander, Family Steak Houses of Florida, Inc., (904) 249-4197. - 3 - -----END PRIVACY-ENHANCED MESSAGE-----