Warehousing Agreement (2003)Full Document 

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                              WAREHOUSING AGREEMENT

                                     BETWEEN

                                  NETGEAR, INC.

                                       AND

                          APL LOGISTICS AMERICAS, LTD.





                                TABLE OF CONTENTS


                                                                                
1.  TERM OF AGREEMENT..........................................................     1

2.  APLL'S RESPONSIBILITIES.....................................................    1

3.  NETGEAR'S RESPONSIBILITIES..................................................    3

4.  RATES AND CHARGES...........................................................    3

5.  LIABILITIES AND INDEMNIFICATION.............................................    4

6.  PHYSICAL INVENTORIES AND ADJUSTMENTS........................................    5

7.  FORCE MAJEURE...............................................................    6

8.  DEFAULT.....................................................................    7

9.  EARLY TERMINATION...........................................................    7

10. RECORDS.....................................................................    9

11. INDEPENDENT CONTRACTOR......................................................    9

12. COMPLIANCE..................................................................    9

13. SUCCESSORSHIP...............................................................    9

14. APPLICABLE LAW; ATTORNEYS' FEES; SEVERABILITY; SAVINGS......................    9

15. ENTIRE AGREEMENT; AMENDMENT; CAPTIONS.......................................    9

16. NOTICES.....................................................................   10

17. WAIVER......................................................................   10

18. NON-RECRUITMENT.............................................................   10

19. CONFIDENTIALITY.............................................................   10

20. COOPERATION.................................................................   10

21. EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES.............................   11
SCHEDULES AND ATTACHMENTS Schedule "A" -- Description of Services Schedule "B" -- Rate Schedule Schedule "C" -- Operating Parameters Schedule "D" -- APLL Equipment/Systems Schedule "E" -- Insurance Schedule Schedule "F" -- Start-up Charges Attachment #1 -- Mutual Confidentiality, Non-Disclosure and Non-Recruitment Agreement CONFIDENTIAL TREATMENT REQUEST * Portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. WAREHOUSING AGREEMENT AGREEMENT made as of July 5, 2001, by and between NETGEAR, INC. ("NETGEAR") having an office at 4500 Great America Parkway, Santa Clara, California 95054 and APL LOGISTICS AMERICAS, LTD, f/k/a GATX Logistics, Inc., having its principal office at 1301 Riverplace Boulevard, Suite 1200, Jacksonville, Florida 32207 ("APLL"). WITNESSETH: WHEREAS, NETGEAR is a corporation organized and existent in accordance with the laws of the State of Delaware, and is engaged in the manufacturer of hardware for computer networks; WHEREAS, APLL is a corporation organized and existent in accordance with the laws of the State of Florida, and is engaged in the business of providing logistics services, including, among others, warehousing services; and WHEREAS, NETGEAR and APLL each represent and warrant that its representative herein is duly empowered and authorized to execute this Agreement on its behalf; NOW, THEREFORE, for and in consideration of the mutual agreements herein contained, it is hereby mutually agreed as follows: 1. TERM OF AGREEMENT The term of this Agreement shall commence on July 16, 2001, and continue in effect until the close of business on July 15, 2004, with an option by NETGEAR to terminate on July 15, 2003 after giving APLL sixty days written notice of its intent to terminate. If NETGEAR either exercises its option to terminate or this Agreement expires, NETGEAR agrees to pay APLL a balloon payment for unamortized capital and/or other fixed expenses in Schedules "D" and "F" or subsequently agreed upon in writing by both parties. If NETGEAR does not exercise its option, the Agreement shall renew automatically from year to year until either party shall serve upon the other party written notice of termination at least ninety (90) days prior to the expiration date of the then current term. 2. APLL'S RESPONSIBILITIES 2.1 SERVICES. During the term of this Agreement, APLL agrees to provide for NETGEAR certain warehousing services described in Schedule "A" hereto at the facilities identified on Schedule "A"(each such facility being hereinafter referred to as "Warehouse"). The services to be provided hereunder are those described in this Agreement, subject to the terms and conditions of this Agreement, and the attached Schedules "A", "B", "C", "D", "E" and "F" and attachments which are made a part hereof (or any substitutions or modifications thereto mutually agreed to in writing), and to accept and keep in a safe, neat and orderly condition such goods (the "Products") as from time to time may be tendered by NETGEAR for warehousing or handling (the "Services"). APLL further agrees to furnish and/or obtain sufficient personnel, equipment, and other accessories necessary to perform the Services herein described. The operating parameters and assumptions are set forth in Schedule "C". 2.2 WAREHOUSE OPERATIONS. The Parties agree that, except as specifically modified herein, APLL will be a warehouseman as described in Article 7 of the Uniform Commercial Code ("UCC") as enacted in the state(s) where the Warehouse(s) are located and is entitled to all rights and subject to all obligations described therein with the exception that APLL has waived its right to Warehouseman's Lien in exchange for the Letter of Credit provided for in Section 4.5. APLL's standard of care for the Services performed hereunder shall be the customary and usual warehousing practices as performed in the community in which the Warehouse is located; provided that in no event will the standard of care be less than the industry standard and practices of skill and care customarily observed by similar companies in similar circumstances. 1 The Warehouse space will be utilized by APLL as efficiently as practical without creating inefficiencies in handling operations. All Products shall be segregated by stock keeping unit, date, lot number, or other characteristics or combination of characteristics, as agreed upon (a "stock keeping unit" being the lowest level for which inventory
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