exv10w2



 








Exhibit 10.2




AMENDMENT NUMBER 3 TO MEMBERS AGREEMENT




     THIS AMENDMENT NUMBER 3, dated as of June 15, 2005 (this “Amendment”), to the Members
Agreement, dated as of September 18, 2002 and amended by Amendment Number 1 thereto as of June 15,
2004 and Amendment Number 2 thereto as of July 8, 2004 (as amended or supplemented from time to
time as permitted thereby, the “Members Agreement”), among CF LEASING LTD., a company organized and
existing under the laws of Bermuda (together with its successors and permitted assigns, the
“Borrower”), 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 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 societe anonyme holding organized
and existing under the laws of Grand Duchy of Luxembourg.



WITNESSETH:




     WHEREAS, the parties previously entered into the Members Agreement; and



     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:



     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,



     (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) December 31, 2005 (or, in the case of clause (y),
such later date as may be agreed to by all of the Members).”;



     (b) 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:




(i) the maximum purchase price to be paid by the Borrower for any standard dry cargo
Container shall not exceed $2,500 per CEU;




(ii) 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;




(iii) 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



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Exhibit 10.2





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




(iv) 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 shall not exceed an amount
equal to the product of (A) twenty-five percent (25%) and (B) the sum of the then
Net Book Values of all New Containers then owned by the Borrower.”;



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



     (a) This Amendment shall become effective as of June 15, 2005.



     (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, 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 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 THE MEMBERS
AGREEMENT. IF SUCH AGENT SHALL CEASE TO SO ACT, THE PARTIES HERETO SHALL IMMEDIATELY DESIGNATE AND
APPOINT ANOTHER SUCH



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Exhibit 10.2



AGENT AND SHALL PROMPTLY DELIVER TO THE PARTIES HERETO EVIDENCE IN WRITING OF SUCH OTHER
AGENT’S ACCEPTANCE OF SUCH APPOINTMENT.




[Signature page follows.]




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Exhibit 10.2




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



	 	 	 	 	 
	 	 	CF LEASING LTD.
	 
	 	 	 	 
	 	 	By: /s/ DENNIS J. TIETZ
	 

	 	 	 	Name: Dennis J. Tietz
	 

	 	 	 	Title: Director
	 
	 	 	 	 
	 	 	CRONOS EQUIPMENT (BERMUDA) LIMITED
	 
	 	 	 	 
	 	 	By: /s/ PETER J. YOUNGER
	 

	 	 	 	Name: Peter J. Younger
	 

	 	 	 	Title: Director
	 
	 	 	 	 
	 	 	THE CRONOS GROUP
	 
	 	 	 	 
	 	 	By: /s/ DENNIS J. TIETZ
	 

	 	 	 	Name: Dennis J. Tietz

	 

	 	 	 	Title: Chief Executive Officer
	 
	 	 	 	 
	 	 	CRONOS CONTAINERS (CAYMAN) 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/ M. ZONDAG
	 

	 	 	 	Name: M. Zondag
	 

	 	 	 	Title: Director
	 
	 	 	 	 
	 	 	By: /s/ F. J. VAN LANSCHOT
	 

	 	 	 	Name: F. J. Van Lanschot
	 

	 	 	 	Title: Director