exv10w14



 








Exhibit 10.14




AMENDMENT NUMBER 1 TO MEMBERS AGREEMENT




     THIS AMENDMENT NUMBER 1, dated as of June 15, 2004 (this “Amendment”), to the Members
Agreement, dated as of September 18, 2002 (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 AVIATION & INTERMODAL FINANCE HOLDING B.V. (f/k/a MeesPierson
Transport & Logistics Holding B.V.), a Besloten Vennootschap organized and existing under the laws
of The Netherlands (“FBH”), and CRONOS EQUIPMENT (BERMUDA) LIMITED, a limited liability company
organized and existing under the laws of Bermuda (“Cronos”), and joined by CRONOS CONTAINERS
(CAYMAN) LTD., a company organized and existing under the laws of the Cayman Islands and by THE
CRONOS GROUP, a société anonyme holding organized and existing under the laws of Grand Duchy of
Luxembourg..



W I T N E S S E T H:




     WHEREAS, the parties have previously entered into the Members Agreement, dated as of September
18, 2002;



     WHEREAS, the parties desire to amend the Members Agreement in order to modify certain
provisions of the Members Agreement;



     NOW THEREFORE, in consideration of the premises and mutual covenants herein contained, the
parties hereto agree as follows:



     ARTICLE IX DEFINED TERMS. CAPITALIZED TERMS USED IN THIS AMENDMENT AND NOT OTHERWISE
DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED IN THE LOAN AGREEMENT.



     ARTICLE X FULL FORCE AND EFFECT. OTHER THAN AS SPECIFICALLY MODIFIED HEREBY, THE LOAN
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THE TERMS AND PROVISIONS THEREOF
AND IS HEREBY RATIFIED AND CONFIRMED BY THE PARTIES HERETO.



     ARTICLE XI AMENDMENT TO THE MEMBERS AGREEMENT. EFFECTIVE UPON THE DATE HEREOF,
FOLLOWING THE EXECUTION AND DELIVERY HEREOF,



     SECTION 11.1. 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) June 15, 2005 (or, in the case of clause (y), such
later date as may be agreed to by all of the Members).”;



 









 








     SECTION 11.2. Section 1.1 shall be amended by deleting the term “Purchase Parameters” in its
entirety and replacing it with the following:


“Purchase Parameters. The policy employed by the Manager from time to time in acquiring New
Containers for the account of the Borrower, as such policy may be amended from time to time by a
Board Majority. The “Purchase Parameters” are as follows:





     (a) the maximum purchase price to be paid by the Borrower for any standard dry
cargo Container shall not exceed $2,100 per CEU;




     (b) the maximum purchase price to be paid by the Borrower for any Specialized
Containers shall not exceed the amount in effect and previously approved by a Board
Majority;




     (c) if such Container is a New Container and will be subject to either a Term
Lease or a Finance Lease on the date on which it is acquired by the Borrower, the
projected ARPEC for such Lease shall be not less than the sum of (A) three month
LIBOR on such date and (B) eleven percent (11%). In this regard, “ARPEC” shall mean
a fraction (expressed as a percentage) the numerator of which is equal to the
product of (A) the daily lease rental attributable to such Container pursuant to the
terms of such Lease and (B) 365, and the denominator of which is equal to the
original equipment cost of such Container; and




     (d) if such Container is a New Container and will be subject to a Master Lease
on the date of acquisition by the Borrower, then, when considered with all other New
Containers then owned by the Borrower, the sum of the Net Book Values of all New
Containers then subject to the terms of a Master Lease will shall not exceed an
amount equal to the product of (A) fifteen percent (15%) and (B) the sum of the then
Net Book Values of all New Containers then owned by the Borrower.”;



     SECTION 11.3. Section 8.13 shall be amended by deleting such section in its entirety; and



     SECTION 11.4. Article 8 is hereby amended by inserting the following Section 8.16 after
Section 8.15:




“Section 8.16. CONSENT TO JURISDICTION. ANY LEGAL SUIT, ACTION OR PROCEEDING
AGAINST THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS MEMBERS AGREEMENT, OR
ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT
IN THE CITY AND COUNTY OF NEW YORK, STATE 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
MEMBERS AGREEMENT, 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 DESIGNATE CT CORPORATION SYSTEM, HAVING AN ADDRESS AT 111 EIGHTH AVENUE,
NEW YORK, NEW YORK, 10011, 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 THIS
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.”.



     ARTICLE XII REPRESENTATIONS AND WARRANTIES.



     Each of the Company and FBH hereby confirms that each of the representations and warranties
set forth in Articles V of the Members Agreement are true and correct as of the date first written
above with the same effect as though each had been made as of such date, except to the extent that
any of such representations and warranties expressly relate to earlier dates.



     ARTICLE XIII EFFECTIVENESS OF AMENDMENT; TERMS OF THIS AMENDMENT.



     SECTION 13.1. This Amendment shall become effective as of June 15, 2004.



     SECTION 13.2. This Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.



     SECTION 13.3. 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.



     SECTION 13.4. 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.



     ARTICLE XIV EXECUTION IN COUNTERPARTS. THIS AMENDMENT MAY BE EXECUTED BY THE PARTIES
HERETO IN SEPARATE COUNTERPARTS,



 









 







EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH SHALL CONSTITUTE TOGETHER BUT
ONE AND THE SAME AGREEMENT.



     ARTICLE XV 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 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.



     ARTICLE XVI 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 THE CITY AND COUNTY OF NEW YORK, STATE
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 111 EIGHTH AVENUE, NEW YORK, NEW YORK,
10011, 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 page follows.]




 









 





     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment on the date
first above written.



	 	 	 	 	 	 
	 	 	CF LEASING LTD.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ DENNIS J. TIETZ	 
	 

	 	 	 	 	 
	 

	 	 	 	Name: Dennis J. Tietz	 
	 

	 	 	 	Title: Director	 






 









 








	 	 	 	 	 	 	 
	 	 	FB AVIATION & INTERMODAL FINANCE HOLDING B.V. (f/k/a MeesPierson Transport & Logistics Holding B.V.)
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ ZONDAG
	 

	 	 	 	 	 	 
	 	 	 	 	Name: Zondag
	 	 	 	 	Title: Director
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ F.J. VAN LANSCHOT
	 

	 	 	 	 	 	 
	 	 	 	 	Name: F.J. van Lanschot
	 	 	 	 	Title: Director







 








 








	 	 	 	 	 
	 	 	CRONOS CONTAINERS (CAYMAN) LTD.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ DENNIS J. TIETZ
	 

	 	 	 	 
	 

	 	 	 	Name: Dennis J. Tietz
	 

	 	 	 	Title: Director






 









 






	 	 	 	 	 
	 	 	THE CRONOS GROUP
	 
	 	 	 	 
	 

	 	By:
	 	/s/ DENNIS J. TIETZ
	 

	 	 	 	 
	 

	 	 	 	Name: Dennis J. Tietz
	 

	 	 	 	Title: Chief Executive Officer






 









 






	 	 	 	 	 
	 

	 	 	 	CRONOS EQUIPMENT (BERMUDA) LIMITED
	 
	 	 	 	 
	 

	 	By:
	 	/s/ PETER J. YOUNGER
	 

	 	 	 	 
	 

	 	 	 	Name: Peter J. Younger