CRONOS EQUIPMENT (BERMUDA) LIMITED     By: /s/ DENNIS J. TIETZ  Name: Dennis J. Tietz  Title: Director**Amendment No. 5 to Members Agt.**
 

 
Exhibit 10.2 EXECUTION VERSIONAMENDMENT NUMBER 5 TO MEMBERS AGREEMENT     THIS AMENDMENT NUMBER 5, dated as of November 8, 2006 (this “Amendment”), to the MembersAgreement, 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, 2005and Amendment Number 4 thereto as of August 1, 2005 (as amended or supplemented from time to timeas permitted thereby, the “Members Agreement”), among CF LEASING LTD., a company with limitedliability organized and existing under the laws of Bermuda (together with its successors andpermitted assigns, the “Company”), FB TRANSPORTATION CAPITAL LLC, a Delaware limited liabilitycompany (“FBT”), and CRONOS EQUIPMENT (BERMUDA) LIMITED, a limited liability company organized andexisting under the laws of Bermuda (“Cronos”), and joined by THE CRONOS GROUP, a société anonymeholding 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 certainprovisions of the Members Agreement.;     WHEREAS, the parties desire to amend the Members Agreement to reflect the transfer by FBAviation & Intermodal Finance Holding B.V. (the “Seller”) to FB Transportation Capital LLC, anaffiliate of the Seller (the “Purchaser”), all of the Seller’s rights, obligations, title andinterest in and to (i) the Members Agreement and (ii) 11,976 of the 12,000 Common Shares the Sellerowned of the Company;     NOW THEREFORE, in consideration of the premises and mutual covenants herein contained, theparties hereto agree as follows:     SECTION 1. Defined Terms. Capitalized terms used in this Amendment and not otherwisedefined 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 itsentirety and replacing it with the following:“**Commitment Expiration Date**. The earlier to occur of (x) the date on which an EarlyAmortization 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 theMembers Agreement shall be amended and restated in its entirety as follows:     “(iii) [reserved]”; and

 

 - 2 -     (c) Section 8.14 of the Members Agreement shall be amended and restated in its entirety asfollows:“ 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 TheCronos Group shall, at the direction of FB Transportation Capital LLC (or its assignee), cause theManager to purchase all assets of the Borrower from the Borrower at a purchase price (i) withrespect 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%) ofthe then existing Net Book Value of such assets, *provided*a purchase of the outstanding shares ofThe Cronos Group has been effected prior to January 31, 2007, and (iii) with respect to all otherassets of the Borrower, equal to one hundred percent (100%) of the then existing Net Book Value ofsuch assets. Simultaneously with such purchase, the Borrower shall, at the direction of FBTransportation 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 thethen Aggregate Principal Balance plus all accrued interest thereon and all other amounts owingpursuant 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 andtheir respective successors and assigns.     (c) On and after the execution and delivery hereof, (i) this Amendment shall be a part of theMembers 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 theMembers Agreement shall mean and be a reference to the Members Agreement as amended or modifiedhereby.     (d) Except as expressly amended or modified hereby, the Members Agreement shall remain in fullforce and effect and is hereby ratified and confirmed by the parties hereto.     SECTION 4. Execution in Counterparts. This Amendment may be executed by the partieshereto in separate counterparts (including by fax and/or email), each of which shall be deemed tobe 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 LAWSOF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES;*****PROVIDED***

 

- 3 -**THAT SECTION5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY, AND THE OBLIGATIONS, RIGHTSAND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATEOF NEW YORK.**     SECTION 6. Consent to Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THEPARTIES HERETO ARISING OUT OF OR RELATING TO THIS AMENDMENT, OR ANY TRANSACTION CONTEMPLATEDHEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY AND COUNTY OF NEW YORK, STATEOF NEW YORK AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TOTHE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OFENFORCING THIS AMENDMENT, EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANYSUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES HERETO HEREBY IRREVOCABLY APPOINTAND 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 LEGALPROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH PARTY HERETO AGREES THAT SERVICE OFPROCESS UPON SUCH PARTY SHALL CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS ON SUCH PERSON. PURSUANTTO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402, EACH PARTY HERETO SHALL MAINTAIN THEDESIGNATION AND APPOINTMENT OF SUCH AUTHORIZED AGENT UNTIL THE TERMINATION OF THE MEMBERSAGREEMENT. IF SUCH AGENT SHALL CEASE TO SO ACT, THE PARTIES HERETO SHALL IMMEDIATELY DESIGNATE ANDAPPOINT ANOTHER SUCH AGENT AND SHALL PROMPTLY DELIVER TO THE PARTIES HERETO EVIDENCE IN WRITING OFSUCH OTHER AGENT’S ACCEPTANCE OF SUCH APPOINTMENT.[Signature pages follow]

 

      IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment on the datefirst above written.     CF LEASING LTD.     By: /s/ PETER J. YOUNGER  Name: Peter J. Younger  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/ MILTON ANDERSON  Name: Milton Anderson  Title: Managing Director**Amendment No. 5 to Members Agt.**

 

      THE CRONOS GROUP     By: /s/ DENNIS J. TIETZ  Name: Dennis J. Tietz  Title: Director**Amendment No. 5 to Members Agt.**

 

      CRONOS EQUIPMENT (BERMUDA) LIMITED     By: /s/ DENNIS J. TIETZ  Name: Dennis J. Tietz  Title: Director**Amendment No. 5 to Members Agt.**