This Transportation Services Agreement involves
Title: AMENDED AND RESTATED RAIL TRANSPORTATION AGREEMENT
Industry: Misc. Transportation Sector: Transportation
DATED AS OF NOVEMBER 3, 2009
AMENDED AND RESTATED RAIL TRANSPORTATION AGREEMENT
DATED AS OF MAY 15, 2002
UNION PACIFIC RAILROAD COMPANY
PACER INTERNATIONAL, INC.,
D/B/A PACER STACKTRAIN
This SECOND AMENDMENT dated as of November 3, 2009 (this "Amendment") to the AMENDED AND RESTATED RAIL TRANSPORTATION AGREEMENT dated as of May 15, 2002 is between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (" UP "), and PACER INTERNATIONAL, INC., d/b/a PACER STACKTRAIN (f/k/a APL LAND TRANSPORT SERVICES, INC.), a Tennessee corporation (" Pacer ").
UP and Pacer, together with American President Lines, Ltd., and APL Co. PTE Ltd., which are Affiliates of APL Limited (collectively, " APL ") are parties to an existing Amended and Restated Rail Transportation Agreement dated as of May 15, 2002, as amended and supplemented in writing (the " Existing Agreement "). The Existing Agreement expires ( i.e. , ceases to be in effect) on October 11, 2011.
APL provides ocean carrier freight transportation, and Pacer provides intermodal freight transportation and related arrangement and management services for domestic and international shipments on behalf of APL, other third party ocean carriers, and other shippers, shipper’s agents, property brokers, freight forwarders, motor carriers, intermodal marketing companies, other intermediaries and other parties having a beneficial interest in containerized shipments. UP provides rail transportation services (including related ramp services) as an intermodal carrier by rail, including services under the Existing Agreement for the following general types of shipments arranged and managed by Pacer: (i) international shipments in containers owned or leased by APL; (ii) domestic shipments in containers owned or leased by Pacer; (iii) domestic shipments in containers owned or leased by APL or other third party ocean carriers; and (iv) international shipments in containers owned or leased by other third party ocean carriers.
UP and Pacer desire to amend the Existing Agreement so that it will no longer govern their ongoing commercial relationship regarding domestic shipments arranged and managed by Pacer in 48’ and 53’ containers owned or leased by Pacer. The Existing Agreement will continue to govern and apply to all shipments and other matters that are not expressly governed by and superseded by this Amendment, and nothing contained in this Amendment will in any way amend, modify or otherwise affect the terms, conditions and other provisions contained in the Existing Agreement that are applicable to such shipments and other matters. In addition, nothing contained in this Amendment shall in any way amend, modify or otherwise affect any right, benefit, privilege, obligation or liability of APL or any of its Affiliates arising under or contained in the Existing Agreement, it being expressly acknowledged and understood by the parties that any such amendment or modification or other effect shall require the express written consent of APL in accordance with the terms of the Existing Agreement.
Accordingly, in consideration of the above premises and the mutual representations, warranties, covenants and agreements contained in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereby agree as follows:
Section 1. Definitions
Capitalized terms used in this Amendment have the meanings set forth in Exhibit A to this Amendment or in such other Sections of this Amendment as may be listed in Exhibit A .
Section 2. Scope, Effective Date
2.1. Scope of this Amendment .
All rates and terms governing UP’s transportation under the Existing Agreement shall, as of the Effective Date, no longer apply to Pacer’s Domestic Container Business, except as may otherwise be agreed between the parties. Nothing contained in this Amendment shall in any way amend, modify or otherwise affect any right, benefit, privilege, obligation or liability of APL or any of its Affiliates arising under or contained in the Existing Agreement, it being expressly acknowledged and understood by the parties that any such amendment or modification or other effect shall require the express written consent of APL in accordance with the terms of the Existing Agreement.
2.2. Effective Date .
This Amendment is effective beginning November 3, 2009 (the " Effective Date ").
2.3. Sections of Existing Agreement That No Longer Apply to Pacer Domestic Container Business .
As of the Effective Date, those Sections of the Existing Agreement listed on Exhibit B attached hereto (including the appendices and exhibits related to those Sections) shall no longer apply to Pacer’s Domestic Container Business, unless otherwise expressly agreed by the parties in writing.
Section 3. Waivers, Amendments, and Severability
All amendments, supplements, modifications to, and waivers of the terms of this Amendment shall be in writing and signed by the parties. If any part of this Amendment is determined to be invalid, illegal, or unenforceable, such determination shall not affect the validity, legality, or enforceability of any other part of this Amendment and the remaining parts of this Amendment shall be enforced as if such invalid, illegal, or unenforceable part were not contained herein.
Section 4. Miscellaneous Provisions
4.1. Captions .
Paragraph titles or captions contained in this Amendment are used for convenience or reference only and are not intended to and shall not in any way enlarge, define, limit, extend or describe the rights or obligations of the Parties or affect the meaning or construction of this Amendment, or any provision hereof.
4.2. Counterparts .
This Amendment may be signed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and