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