exv10w1



 





EXHIBIT 10.1




EXECUTION COPY




AMENDMENT NUMBER 7 TO MEMBERS AGREEMENT




     THIS AMENDMENT NUMBER 7, dated as of January 2, 2007 (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, Amendment Number 4 thereto as of August 1, 2005, Amendment Number 5 thereto as of November 8,
2006 and Amendment Number 6 thereto as of November 8, 2006 (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”), FB AVIATION & INTERMODAL FINANCE HOLDING B.V., a
limited liability company organized under the laws of The Netherlands (“FBA”), 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 increase the Commitment
of each Member from $30,000,000 to $35,000,000.



     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. Amendment to the Members Agreement. Effective upon the date hereof,
following the execution and delivery hereof, the Commitment of each Member shall be increased from
Thirty Million Dollars ($30,000,000) to Thirty-Five Million Dollars ($35,000,000). Accordingly,
Exhibit C to the Members Agreement shall be amended by deleting it in its entirety and replacing it
with new Exhibit C attached to this Amendment. For the avoidance of doubt, FBT and FBA shall
together be treated as a single Member with respect to determining the respective Commitments of
the Members.



     SECTION 3. Effectiveness of Amendment; Terms of this Amendment.



     (a) This Amendment shall become effective as of January 2, 2007.



     (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



 









 





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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 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 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:
	 	Peter J. Younger	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Peter J. Younger	 	 
	 

	 	 	 	Title: Director	 	 






Amendment No. 7 to Members Agt.




 









 








	 	 	 	 	 	 	 
	 	 	FB AVIATION & INTERMODAL FINANCE 

HOLDING B.V.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ J. W. Kuijpers	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: J. W. Kuijpers	 	 
	 

	 	 	 	Acting on behalf of FB Corporate Holding	 	 
	 

	 	 	 	B.V. (director)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ J. Ketelaar	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: J. Ketelaar	 	 
	 

	 	 	 	Acting on behalf of FB Corporate Holding	 	 
	 

	 	 	 	B.V. (director)	 	 






Amendment No. 7 to Members Agt.





 









 








	 	 	 	 	 	 	 
	 	 	FB TRANSPORTATION CAPITAL LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ M.A.N. van Lacum	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: M.A.N. van Lacum	 	 
	 

	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Milton Anderson	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Milton Anderson	 	 
	 

	 	 	 	Title: Managing Director	 	 






Amendment No. 7 to Members Agt.





 









 








	 	 	 	 	 	 	 
	 	 	THE CRONOS GROUP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dennis J. Tietz	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Dennis J. Tietz	 	 
	 

	 	 	 	Title: Director	 	 






Amendment No. 7 to Members Agt.





 









 








	 	 	 	 	 	 	 
	 	 	CRONOS EQUIPMENT (BERMUDA) LIMITED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dennis J. Tietz	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Dennis J. Tietz	 	 
	 

	 	 	 	Title: Director	 	 






Amendment No. 7 to Members Agt.





 









 








EXHIBIT C




STATED AMOUNTS AND PERCENTAGES FOR MEMBERS




	 	 	 	 	 	 	 	 	 
	Name of Member	 	Sharing Ratio	 	Aggregate Commitment
	Cronos Equipment (Bermuda) Limited
	 	 	50	%	 	$	35,000,000	 
	 
	 	 	 	 	 	 	 	 
	FB Transportation Capital LLC
	 	 	50	%	 	$	35,000,000