AMENDMENT NUMBER 5 TO MEMBERS AGREEMENT
| CRONOS EQUIPMENT (BERMUDA) LIMITED | ||
| By: /s/ XXXXXX X. XXXXX | ||
| Name: Xxxxxx X. Xxxxx | ||
| Title: Director |
Amendment No. 5 to Members Agt.
| Exhibit 10.2 | EXECUTION VERSION |
AMENDMENT NUMBER 5 TO MEMBERS AGREEMENT
THIS AMENDMENT NUMBER 5, dated as of November 8, 2006 (this “Amendment”), to the Members
Agreement, dated as of September 18, 2002 and amended by Amendment Number 1 thereto as of June 15,
2004, Amendment Number 2 thereto as of July 8, 2004, Amendment Number 3 thereto as of June 15, 2005
and Amendment Number 4 thereto as of August 1, 2005 (as amended or supplemented from time to time
as permitted thereby, the “Members Agreement”), among CF LEASING LTD., a company with limited
liability organized and existing under the laws of Bermuda (together with its successors and
permitted assigns, the “Company”), FB TRANSPORTATION CAPITAL LLC, a Delaware limited liability
company (“FBT”), and CRONOS EQUIPMENT (BERMUDA) LIMITED, a limited liability company organized and
existing under the laws of Bermuda (“Cronos”), and joined by THE CRONOS GROUP, a société anonyme
holding organized and existing under the laws of Grand Duchy of Luxembourg (“The Cronos Group”).
W I T N E S S E T H:
WHEREAS, the parties have previously entered into the Members Agreement;
WHEREAS, the parties desire to amend the Members Agreement in order to modify certain
provisions of the Members Agreement.;
WHEREAS, the parties desire to amend the Members Agreement to reflect the transfer by FB
Aviation & Intermodal Finance Holding B.V. (the “Seller”) to FB Transportation Capital LLC, an
affiliate of the Seller (the “Purchaser”), all of the Seller’s rights, obligations, title and
interest in and to (i) the Members Agreement and (ii) 11,976 of the 12,000 Common Shares the Seller
owned of the Company;
NOW THEREFORE, in consideration of the premises and mutual covenants herein contained, the
parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings assigned in the Members Agreement.
SECTION 2. Amendments to the Members Agreement. Effective upon the date hereof,
following the execution and delivery hereof,
(a) Section 1.1 shall be amended by deleting the term “Commitment Expiration Date” in its
entirety and replacing it with the following:
“Commitment Expiration Date. The earlier to occur of (x) the date on which an Early
Amortization Event occurs and (y) October 31, 2007 (or, in the case of clause (y),
such later date as may be agreed to by all of the Members).”; and
(b) Paragraph (iii) of the definition of “Purchase Parameters” in Section 1.1 of the
Members Agreement shall be amended and restated in its entirety as follows:
“(iii) [reserved]”; and
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(c) Section 8.14 of the Members Agreement shall be amended and restated in its entirety as
follows:
“ Section 8.14 Mandatory Redemption Upon Change of Control.
If a Change of Control occurs with respect to either the Manager or The Cronos Group, then The
Cronos Group shall, at the direction of FB Transportation Capital LLC (or its assignee), cause the
Manager to purchase all assets of the Borrower from the Borrower at a purchase price (i) with
respect to the New Containers (other than, if the condition in the proviso set forth in clause (ii)
below has been satisfied, the Category 3 Containers (defined below)) and the Category 2 Containers,
equal to one hundred ten percent (110%) of the then existing Net Book Value of such assets, (ii)
with respect to all Containers purchased or otherwise acquired by the Borrower between August 1,
2006 and January 31, 2007 (the “Category 3 Containers”), equal to one hundred two percent (102%) of
the then existing Net Book Value of such assets, provided a purchase of the outstanding shares of
The Cronos Group has been effected prior to January 31, 2007, and (iii) with respect to all other
assets of the Borrower, equal to one hundred percent (100%) of the then existing Net Book Value of
such assets. Simultaneously with such purchase, the Borrower shall, at the direction of FB
Transportation Capital LLC (or its assignee), redeem the Notes by not later than the sixtieth
(60th) day after receipt of notice requesting such redemption for a purchase price equal to the
then Aggregate Principal Balance plus all accrued interest thereon and all other amounts owing
pursuant to the Loan Agreement and the other Transaction Documents.”
SECTION 3. Effectiveness of Amendment; Terms of this Amendment.
(a) This Amendment shall become effective as of November 8, 2006.
(b) This Amendment shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
(c) On and after the execution and delivery hereof, (i) this Amendment shall be a part of the
Members Agreement, and (ii) each reference in the Members Agreement to “this Agreement” or
“hereof”, “hereunder” or words of like import, and each reference in any other document to the
Members Agreement shall mean and be a reference to the Members Agreement as amended or modified
hereby.
(d) Except as expressly amended or modified hereby, the Members Agreement shall remain in full
force and effect and is hereby ratified and confirmed by the parties hereto.
SECTION 4. Execution in Counterparts. This Amendment may be executed by the parties
hereto in separate counterparts (including by fax and/or email), each of which shall be deemed to
be an original and all of which shall constitute together but one and the same agreement.
SECTION 5. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES; PROVIDED
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THAT SECTION
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
SECTION 6. Consent to Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE
PARTIES HERETO ARISING OUT OF OR RELATING TO THIS AMENDMENT, OR ANY TRANSACTION CONTEMPLATED
HEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XXX XXXXXX XX XXX XXXX, XXXXX
OF NEW YORK AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OF
ENFORCING THIS AMENDMENT, EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES HERETO HEREBY IRREVOCABLY APPOINT
AND DESIGNATES CT CORPORATION SYSTEM, HAVING AN ADDRESS AT 000 XXXXXX XXXXXX, XXX XXXX, XXX XXXX,
00000, ITS TRUE AND DULY AUTHORIZED AGENT FOR THE LIMITED PURPOSE OF RECEIVING AND FORWARDING LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH PARTY HERETO AGREES THAT SERVICE OF
PROCESS UPON SUCH PARTY SHALL CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS ON SUCH PERSON. PURSUANT
TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402, EACH PARTY HERETO SHALL MAINTAIN THE
DESIGNATION AND APPOINTMENT OF SUCH AUTHORIZED AGENT UNTIL THE TERMINATION OF THE MEMBERS
AGREEMENT. IF SUCH AGENT SHALL CEASE TO SO ACT, THE PARTIES HERETO SHALL IMMEDIATELY DESIGNATE AND
APPOINT ANOTHER SUCH AGENT AND SHALL PROMPTLY DELIVER TO THE PARTIES HERETO EVIDENCE IN WRITING OF
SUCH OTHER AGENT’S ACCEPTANCE OF SUCH APPOINTMENT.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment on the date
first above written.
| CF LEASING LTD. | ||
| By: /s/ XXXXX X. XXXXXXX | ||
| Name: Xxxxx X. Xxxxxxx | ||
| Title: Director |
Amendment No. 5 to Members Agt.
| FB TRANSPORTATION CAPITAL LLC | ||
| By: /s/ M.A.N. VAN LACUM | ||
| Name: M.A.N. van Lacum | ||
| Title: Director | ||
| By: /s/ XXXXXX XXXXXXXX | ||
| Name: Xxxxxx Xxxxxxxx | ||
| Title: Managing Director |
Amendment No. 5 to Members Agt.
| THE CRONOS GROUP | ||
| By: /s/ XXXXXX X. XXXXX | ||
| Name: Xxxxxx X. Xxxxx | ||
| Title: Director |
Amendment No. 5 to Members Agt.
| CRONOS EQUIPMENT (BERMUDA) LIMITED | ||
| By: /s/ XXXXXX X. XXXXX | ||
| Name: Xxxxxx X. Xxxxx | ||
| Title: Director |
Amendment No. 5 to Members Agt.
