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. ▇.▇▇.▇▇. 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
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, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. 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, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. 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/ ▇▇▇▇▇ Rocker
-----------------------
Name: ▇▇▇▇▇ Rocker
Title: Principal
REGULAR MEMBER
THE ENSTAR GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, C.E.O.
Schedule A
NAME AND ADDRESS PERCENTAGE INTEREST INITIAL CAPITAL MAXIMUM CONTRIBUTION
CONTRIBUTION OBLIGATION
---------------- ------------------- --------------- --------------------
Managing Member:
0% N/A N/A
JCF Associates I LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Regular Members:
The Enstar Group, Inc. 100% $2,996,250 $10 million