SECOND AMENDMENT DATED AS OF NOVEMBER 3, 2009 TO AMENDED AND RESTATED RAIL TRANSPORTATION AGREEMENT DATED AS OF MAY 15, 2002 BETWEEN UNION PACIFIC RAILROAD COMPANY AND PACER INTERNATIONAL, INC., D/B/A PACER STACKTRAIN
Exhibit 10.15
SECOND AMENDMENT
DATED AS OF NOVEMBER 3, 2009
TO
AMENDED AND RESTATED RAIL TRANSPORTATION AGREEMENT
DATED AS OF MAY 15, 2002
BETWEEN
UNION PACIFIC RAILROAD COMPANY
AND
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”).
RECITALS
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.
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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.
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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 the same instrument.
4.3. Public Announcements.
Except where such disclosure is required by law or regulation, the parties will coordinate all publicity relating to the transactions contemplated by this Amendment; and, except where such disclosure is required by law or regulation, no party will release any press release, public statement or other public notice relating to this Amendment or the transactions contemplated by this Amendment without prior consultation with the other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and year first written above.
| UNION PACIFIC RAILROAD COMPANY | PACER INTERNATIONAL, INC. d/b/a Pacer Stacktrain | |||||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ |
By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||||||
| Title: | Chairman, President and |
Title: | Chief Executive Officer | |||||||||
| Chief Executive Officer |
||||||||||||
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List of Attachments
Exhibit A – Definitions
Exhibit B – Sections of Existing Agreement No Longer Applicable to Pacer Domestic Container Business
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Exhibit A – Definitions
1. “Affiliate” - means, as to any Person, any other Person who directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with such Person.
2. “APL” - has the meaning given to it in the first paragraph of the Recitals to this Amendment.
3. “Domestic Big Box Containers” - refers to 48’ and 53’ Containers owned, leased or operated by Pacer, whether on a long-term, short-term, trip or load-by-load basis. Domestic Big Box Containers exclude 48’ and 53’ marine containers (containers built for ocean transport use by ocean carriers).
4. “Domestic Container Business” - means the arrangement, management and transportation of Domestic Shipments in Domestic Big Box Containers and related services and activities (e.g., repositioning of empty Containers).
5. “Domestic Shipments” - refers to shipments moving within the North American continent, including the U.S., Canada, and Mexico, and Puerto Rico, and excludes international shipments (containerized shipments involved in an ocean voyage leg) that originate or terminate outside the North American continent (including Puerto Rico within the North American continent).
6. “Existing Agreement” - has the meaning given to it in the first paragraph of the Recitals to this Amendment.
7. “Pacer” - has the meaning given to it in the Caption on the first page of this Amendment.
8. “Person” - means any natural person, corporation, limited liability company, partnership, trust, association, or other juridical entity or Governmental Authority.
9. “UP” - has the meaning given to it in the Caption on the first page of this Agreement.
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EXHIBIT B
Provisions of the Existing Agreement That No Longer
Apply to Pacer’s Domestic Container Business
| Section |
Caption | |
| Section 1 |
Term | |
| Section 2 |
Definitions | |
| Section 3 |
Authorized Agent | |
| Section 4 |
Rail Transportation Services to be Provided by UP | |
| Section 5 |
Terminal Services to be Provided by UP | |
| Section 6 |
Equipment Obligations | |
| Section 7 |
Service Commitments by UP | |
| Section 8 |
APL’s Volume Commitment | |
| Section 9 |
Pacer owned Stack Cars | |
| Section 10 |
Other APL Obligations | |
| Section 11 |
Equipment Storage | |
| Section 12 |
Participants and TPI Shipments | |
| Section 13 |
Rates / Adjustment to Rates | |
| Section 14 |
Competitive Proposals | |
| Section 15 |
Force Majeure | |
| Section 16 |
Arbitration | |
| Section 17 |
Renegotiation | |
| Section 18 |
Mutual Indemnity | |
| Section 19 |
Claims for Cargo Loss and Damage | |
| Section 20 |
Hazardous Materials and Restricted Commodities | |
| Section 21 |
Federal Contractor Requirements | |
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| Section 22 |
Other Agreements | |
| Section 23 |
When Terms and Provisions of UP’s Intermodal Rules Apply | |
| Section 24 |
Assignment | |
| Section 25 |
Year 2000 Compliance | |
| Section 26 |
Notices | |
| Section 27 |
Confidentiality | |
| Section 28 |
Venue | |
| Section 29 |
Applicable Law | |
| First Amendment |
Dated August 1, 2005 | |
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