Limited Liability Company Agreement of JCF CFN LLC, dated December 19, 2002, between JCF Associates I LLC and Regular Members

Summary

This agreement establishes JCF CFN LLC as a Delaware limited liability company, effective December 19, 2002. JCF Associates I LLC acts as the managing member, with other members listed in the agreement. The company’s purpose is to participate as a member in other LLCs and conduct related business. The managing member oversees operations, and members contribute capital as specified. Members are generally not personally liable for company debts. The agreement outlines how new members may join, how additional capital may be required, and the process for company dissolution.

EX-10.13 3 g81598exv10w13.txt EX-10.13 LIMITED LIABILITY COMPANY AGREEMENT EXHIBIT 10.13 LIMITED LIABILITY COMPANY AGREEMENT OF JCF CFN LLC This Limited Liability Company Agreement (this "Agreement") of JCF CFN LLC (the "Company") is entered into effective as of December 19, 2002 by and between JCF Associates I LLC, as the managing member (the "Managing Member"), and each of the other members from time to time listed on Schedule A hereto (the "Regular Members", and together with the Managing Member, the "Members"). The Members agree as follows: 1. Name. The name of the Company shall be JCF CFN LLC, or such other name as the Managing Member may from time to time hereafter designate. 2. Formation. The Company has been formed under the provisions of the Delaware Limited Liability Company Act, 6 Del. C.ss.ss. 18-101 et seq. (the "Act"). 3. Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth therefor in Section 18-101 of the Act. 4. Purpose. The purpose of the Company shall be, directly or indirectly through subsidiaries or affiliates, (i) to serve as a member of CFN Investment Holdings LLC, a Delaware limited liability company ("Holdings") in accordance with the Limited Liability Company Agreement of Holdings dated as of December 19, 2002 (as amended from time to time, the "Holdings Agreement"), (ii) to serve as a member of FPS DIP LLC, a Delaware limited liability company ("DIP") in accordance with the Limited Liability Company Agreement of DIP dated as of December 19, 2002 (as amended from time to time, the "DIP Agreement" and together with the Holdings Agreement, the "LLC Agreements"), and (iii) to do all things necessary or incidental thereto. 2 5. Offices. (a) The principal place of business and office of the Company shall initially be located at 399 Park Avenue, 27th Floor, New York, NY 10022, and the Company's business shall be conducted from, such place or such other places as the Managing Member may designate from time to time. (b) The registered office of the Company in the State of Delaware shall be located at c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The Managing Member may from time to time change the registered agent or office by an amendment to the certificate of formation of the Company. 6. Members. The Members of the Company as of the date hereof and their respective addresses are set forth on Schedule A hereto. Additional Members may be admitted to the Company, and Schedule A may be accordingly amended, with the joint consent of all of the Members; provided, that any affiliate of the Managing Member that makes a capital contribution to the Company pursuant to Sections 11(a)(ii) or 11(a)(iii) shall be admitted to the Company as a Regular Member solely upon the direction of the Managing Member. 7. Initial Capital Contribution. Concurrently with, or prior to, the execution of this Agreement, each Member has made or shall make the initial capital contribution specified in Schedule A hereto (the "Initial Capital Contribution"). 8. Term. The term of the Company commenced on December 19, 2002, the date of filing of the certificate of formation of the Company in accordance with the Act, and shall continue until the Company is dissolved and its affairs are wound up in accordance with Section 15 of this Agreement and a certificate of cancellation is filed in accordance with the Act. 3 9. Management of the Company. The Managing Member shall manage the affairs of the Company. The Managing Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein. The Managing Member may appoint an authorized person, within the meaning of the Act, to execute, deliver and file any amendments and/or restatements to the certificate of formation of the Company and may appoint others as authorized persons to execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business. The Managing Member or any authorized person appointed by it shall have the power to bind the Company. The Managing Member shall devote such time to the business and affairs of the Company as it deems necessary, in its sole discretion, for the performance of its duties, but in any event, shall not be required to devote full time to the performance of such duties and may delegate its duties and responsibilities as provided in this Agreement. Nothing in this Agreement shall be deemed to preclude any Member or its affiliates from exercising investment responsibility, from engaging directly or indirectly in any other business or from directly or indirectly purchasing, selling, holding or otherwise dealing with any securities for the account of any such other business, for their own accounts or for clients. 10. Limitation of Liability. (a) Except as provided in the Act or as such Member shall otherwise expressly agree in writing, no Member of the Company shall be obligated personally for any debt, obligation or liability of the Company or of any other Member solely by reason of being a Member of the Company. (b) In no event shall any Member or former Member (i) be obligated to make any capital contribution or payment to or on behalf of the Company or (ii) have any liability to return distributions received by such Member from the Company in each case except 4 as otherwise specifically provided in this Agreement, as such Member shall otherwise expressly agree in writing or as may be required by applicable law. 11. Additional Capital Contributions. (a) (i) The Managing Member may from time to time require additional capital contributions from the Members pro rata in accordance with each Member's respective Percentage Interest (as defined below) in order to pay (A) organizational and operating expenses of the Company, (B) any Initial Capital Contribution (as defined in the Holdings Agreement), Mandatory Capital Contribution (as defined in the Holdings Agreement) or other payments owed by the Company to Holdings or DIP pursuant to the Holdings Agreement or the DIP Agreement, as applicable (other than any Voluntary Capital Contribution (as defined in the Holdings Agreement) requested by the managing member of DIP or Holdings), or (C) any obligation of the Company pursuant to Section 13 hereof; provided that no Member shall be required without its consent to contribute an amount pursuant to clauses (A) or (B) of this Section 11(a)(i) that, when taken together with such Regular Member's prior capital contributions to the Company pursuant to Section 7 and clauses (A) and (B) of this Section 11(a)(i), would be in excess of such Regular Member's Maximum Contribution Commitment set forth on Schedule A hereto. The Managing Member shall give the Regular Members at least 5 business days' prior written notice of the amount of any contribution required pursuant to this Section 11(a)(i). Each Member's "Percentage Interest" as of any date shall be equal to the ratio between (x) all capital contributions made to the Company by such Member as of such date and (y) the aggregate capital contributions to the Company by all Members as of such date. (ii) In the event (A) the Company is required to make an Initial Capital Contribution (as defined in the Holdings Agreement) or Mandatory Capital Contribution to Holdings or other payments owed by the Company to Holdings or DIP pursuant to the Holdings Agreement or DIP Agreement, as applicable and (B) the contribution by any Regular Member of 5 all or any portion of its pro rata share (based on Percentage Interests) of such Initial Capital Contribution (as defined in the Holdings Agreement), Mandatory Capital Contribution or other payment would, when taken together with such Regular Member's prior capital contributions to the Company pursuant to Section 7 and clauses (A) and (B) of Section 11(a)(i), be in excess of such Regular Member's Maximum Contribution Commitment (any such excess being referred to as such Regular Member's "Excess Amount"), then the Managing Member shall, either directly or through one or more of its affiliates, make a capital contribution to the Company in an amount equal to such Excess Amount and the Percentage Interest of the Managing Member (or the relevant affiliate(s) of the Managing Member) shall be increased proportionately. Notwithstanding the foregoing, the Managing Member and any Regular Member may each agree in their sole and absolute discretion that such Regular Member shall make a capital contribution of all or any portion of such Regular Member's Excess Amount and in such event the Percentage Interest of the Managing Member (or the relevant affiliate(s)) and such Regular Member shall be adjusted accordingly. (iii) In the event the Company is requested to make a Voluntary Capital Contribution to Holdings , the Managing Member shall provide the Regular Members with a written notice specifying (A) such Regular Member's pro rata share (based on then Percentage Interests) of such Voluntary Capital Contribution and (B) the date a capital contribution from a participating Regular Member for such Voluntary Capital Contribution is required to be made to the Company, which date shall be no less than 5 business days following the date of such written notice. Each Regular Member shall be required to notify the Managing Member within 3 business days of the date of the written notice provided pursuant to the preceding sentence whether the Regular Member elects to make all or any portion of such capital contribution. If any Regular Member elects to make less than 100% of its share of such Voluntary Capital Contribution (the difference between a Regular Member's share of such Voluntary Capital 6 Contribution and the capital contribution elected to be made by such Regular Member in respect thereof being referred to as such Regular Member's "Shortfall Amount"), the Managing Member shall be permitted, either directly or through one or more of its affiliates, to make a capital contribution to the Company in an amount up to such Regular Member's Shortfall Amount and the Percentage Interest of the Managing Member (or the relevant affiliate(s) of the Managing Member) shall be increased proportionately. (b) If any Regular Member fails to make a capital contribution on or prior to the date specified by the Managing Member (which in the case of any capital contribution requested pursuant to Section 11(a)(ii) or (iii) was consented to by such Regular Member in accordance with the provisions thereof), the Managing Member shall promptly (and in any event within 3 business days thereafter) deliver to such Regular Member a notice of default with respect thereto (a "Contribution Default Notice"). (c) In addition to any other remedies that may be available at law or in equity, including, without limitation, pursuant to this Agreement, if a Regular Member (a "Non-Contributing Member") fails to make any capital contribution pursuant to Section 11(a) (which in the case of any capital contribution requested pursuant to Section 11(a)(ii) or (iii) was consented to by such Regular Member in accordance with the provisions thereof), within 3 business days after delivery of a Contribution Default Notice with respect thereto (the "Grace Period"), the Managing Member shall have the right, but not the obligation, to elect either to (i) make a loan to the Non-Contributed Member funded to the Company pursuant to Section 11(d) or (ii) purchase the Non-Contributing Member's interest in the Company pursuant to Section 11(e). Any such election shall be set forth in a notice (a "Contribution Default Election Notice"), delivered to the Non-Contributing Member within 5 business days after the expiration of the Grace Period. 7 (d) In the event that a Regular Member is a Non-Contributing Member with respect to a capital contribution, the Managing Member shall have the right, but not the obligation, to make a loan (a "Member Loan") to the Non-Contributing Member in an amount equal to the required capital contribution that the Non-Contributing Member failed to make. Any Member Loan shall (i) bear interest at a rate equal to fifteen percent (15%) per annum, compounded monthly (on the basis of a month consisting of thirty (30) days and a year consisting of 360 days) and (ii) be funded to the Company on behalf of the Non-Contributing Member. Notwithstanding Section 10, any such Member Loan, plus interest thereon, shall be a recourse obligation of the Non-Contributing Member to the Managing Member and if not paid directly by the Non-Contributing Member, shall be repaid directly by the Company on behalf of the Non-Contributing Member by applying (first to accrued and unpaid interest, and then to principal), until the Member Loan together with interest payable thereon is paid in full, all amounts otherwise distributable or payable (directly or indirectly) to such Non-Contributing Member in accordance with the provisions of this Agreement against amounts owed to the Managing Member in respect of the Member Loan; provided that that the Managing Member shall not be entitled to foreclose on such Non-Contributing Member's interest in the Company. Any amounts so repaid or set-off shall be deemed to be distributions or payments made to the Non-Contributing Member. For the avoidance of doubt, to the extent amounts distributable or payable (directly or indirectly) to the Non-Contributing Member are not sufficient to repay the Member Loan, the Managing Member shall only be entitled to seek reimbursement from the Non-Contributing Member and any outstanding amount shall not be an obligation of the Company. (e) In the event that a Regular Member is a Non-Contributing Member with respect to a capital contribution, the Managing Member shall have the right, but not the obligation, to purchase the entire interest of the Non-Contributing Member in the Company at an 8 aggregate price equal to the aggregate amount of capital contributions to the Company funded by the Non-Contributing Member as of the time of its default, less any expenses incurred by the Company and/or the Managing Member in connection with such purchase (with the amount of such reduction in respect of expenses incurred by the Company paid over to the Company by the Managing Member). 12. No Right to Resign or Withdraw. No Member shall have the right to resign or withdraw from the Company except upon the transfer of all of its interest in the Company in accordance with the provisions hereof, and no Member shall have the right to withdraw any amount from the Company or receive any distribution except as expressly provided herein. 13. Exculpation and Indemnification. (a) Notwithstanding any other terms of this Agreement, whether express or implied, or any obligation or duty at law or in equity, no Member nor any of its officers, directors, shareholders, members, managers, partners or employees nor any officer or employee (including for this purpose any Member who serves as a consultant to the Company) of the Company or its affiliates (individually, a "Covered Person" and collectively, the "Covered Persons") shall be liable to the Company or any other Member for any act or omission (in relation to the Company, this Agreement, any related document or any transaction or investment contemplated hereby or thereby) taken or omitted in good faith by a Covered Person and in the reasonable belief that such act or omission is in, or is not contrary to, the best interests of the Company and is within the scope of authority granted to such Covered Person unless such act or omission resulted from fraud, willful misconduct, gross negligence, a violation of applicable securities laws or a breach of this Agreement, or any related document by such Covered Person and except that nothing herein shall constitute a waiver or limitation of any rights which a Member or the Company may have under applicable securities laws or of any rights under other laws which as a matter of law may not be waived. 9 (b) To the fullest extent permitted by law, the Company shall indemnify and hold harmless (but only to the extent of its assets) each Covered Person from and against any and all claims, liabilities, damages, losses, costs and expenses (including amounts paid in satisfaction of judgments, in compromises and settlements, as fines and penalties and legal or other costs and reasonable expenses of investigating or defending against any claim or alleged claim) of any nature whatsoever, known or unknown, liquidated or unliquidated, arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of or in connection with the Company, its property, its business or affairs; provided that a Covered Person shall not be entitled to indemnification under this Section with respect to any claim, issue or matter in which such Covered Person has engaged in fraud, willful misconduct, gross negligence or a breach of this Agreement or any related document by such Covered Person and nothing herein shall constitute a waiver or limitation of any rights which a Member or the Company may have under applicable securities laws or of rights under other laws which as a matter of law may not be waived. To the fullest extent permitted by law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of a written undertaking by or on behalf of the Covered Person to repay such amount to the extent that it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section. (c) To the extent that, at law or in equity or otherwise, a Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or to another Member, such Member acting under this Agreement shall not be liable to the Company or to any 10 such other Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they expand or restrict the duties and liabilities of a Member otherwise existing at law or in equity or otherwise, are agreed by the Members to modify to that extent such other duties and liabilities of such Member. 14. Distributions and Allocations. The Managing Member shall be required to distribute to the Members in proportion to their respective Percentage Interests any proceeds from an investment within 30 calendar days after the receipt thereof; provided that the Managing Member shall be permitted to withhold from any distribution amounts necessary to create, in its discretion, appropriate reserves for expenses and liabilities, contingent or otherwise, of the Company. Profits and losses shall be allocated among the Members in proportion to their respective Percentage Interests. Distributions upon the dissolution and winding up of the Company, after payment of amounts to satisfy all creditors of the Company (including Members who are creditors of the Company), either by the payment thereof or the making of reasonable provision therefor (including the establishment of reserves in amounts determined in good faith by the Managing Member), shall be made among the Members in proportion to their respective Percentage Interests. 15. Dissolution. The Company shall be dissolved and its affairs wound up upon the first to occur of the following: (i) The occurrence of an event with respect to the Managing Member causing a dissolution of the Company under Section 18-801 of the Act, provided, however, that the Company shall not be dissolved or required to be wound up upon the occurrence of any such event if within ninety (90) days after the occurrence of such event, all Regular Members agree in writing to continue the business of the Company and to the appointment, effective as of the date of such event, of a replacement Managing Member, in which event the Managing Member shall become a Regular Member; (ii) Judicial dissolution; (iii) The mutual agreement of the Members; or 11 (iv) The disposition or liquidation to cash of all of the Company's investments in Holdings and DIP. 16. Assignments of Partnership Interest. No Member may sell, assign, pledge or otherwise transfer or encumber (collectively "transfer") all or any part of its interest in the Company, nor shall any Member have the power to substitute a transferee in his place as a substitute Member, without, in either event, having obtained the prior written consent of each other Member, which consent may be given or withheld in its sole discretion; provided that no such consent shall be required for a transfer by any Member of all of its interest in the Company to any affiliate of such Member so long as such Member remains contingently liable for the performance by such affiliate of its obligations hereunder and such transfer does not impose any legal, tax or regulatory burden upon the Company. Upon any such transfer to an affiliate of a Member's interest in the Company, such affiliate shall be admitted as a substitute Member of the Company in lieu of the transferor Member. 17. Information. The Managing Member shall provide each Regular Member with a copy of any written information and written report furnished to the Company pursuant to the LLC Agreements, in each case within 5 business days of the Company's receipt thereof. 18. Tax Matters. Information required for Members to prepare their federal, state and local income tax returns will be delivered to each Member after the end of each taxable year of the Company. Every reasonable effort will be made to furnish such information within 90 days after the end of each taxable year. Unless the Company is advised by counsel that it is entitled to be treated as a disregarded entity for federal income tax purposes, the Company shall file its tax returns as a partnership for federal, state and local income and other tax purposes. 19. Amendments. This Agreement may be amended only upon the written consent of all of the Members. 12 20. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware. 21. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 13 IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first written above. MANAGING MEMBER JCF ASSOCIATES I LLC By: /s/ Sally Rocker ----------------------- Name: Sally Rocker Title: Principal REGULAR MEMBER THE ENSTAR GROUP, INC. By: /s/ Nimrod T. Frazer ----------------------- Name: Nimrod T. Frazer Title: Chairman, C.E.O.