BETWEEN: VINDICATOR, INC.,
having place of business at
0000 Xxxxxxxxxxxx Xx.,
Xxxxx Xxxx, Xxxxxxx,
X.X.X.
("Vindicator")
AND: NORDION INTERNATIONAL INC.,
having place of business at
000 Xxxxx Xxxx, Xxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0
("Nordion")
WHEREAS;
(A) Vindicator owns and operates a food irradiation facility in
Mulberry, Florida (the "Facility") and desires to assist in the development of
the food irradiation industry;
(B) Nordion is a world leader in production irradiation and has certain
interests in the Facility, and its commercial applications;
(C) Nordion desires to develop and promote the commercialization and
demonstration of production irradiation and Vindicator has agreed to permit the
use of the Facility for commercial demonstration purposes;
(D) Vindicator has agreed to permit Nordion to supply and install in the
Facility approximately 2,600,000 curies ("Ci") of Cobalt-60 ("Cobalt 60") for
development and demonstration purposes under the terms and conditions set out
herein.
NOW THEREFORE in consideration of the mutual covenants and promises herein
contained the Parties agree as follows:
1. Nordion agrees to supply and install in the Facility, and Vindicator
agrees to permit the installation for the purposes of development and
demonstration of production irradiation approximately 2,600,000 Ci of
Cobalt-60 in the form of C-188 sealed sources identified in Schedule
A.
2. The Cobalt-60 shall be delivered and installed in the Facility
located in Mulberry, Florida.
3. The Cobalt-60 shall be shipped on or about September 14, 1992 from
Nordion's facility in Xxxxxx, Xxxxxxx, Xxxxxx. All right, title and
interest in and to the Cobalt-60 shall remain at all times hereunder
vested in Nordion.
4. Vindicator agrees and acknowledges that the shipping containers and
source cages are the property of Nordion and shall be made available
for return to Nordion at its Kanata, Ontario facility within fourteen
(14) days after delivery to the Facility.
5. Vindicator, for a two year period from the date of execution hereof
or until Nordion removes the Cobalt-60 from the Facility whichever
occurs first, agrees to provide to Nordion and third parties at the
request of Nordion, reasonable access to the Facility in order that
Nordion may demonstrate the operation and benefit of the Facility and
production irradiation. Nordion shall provide reasonable advance
notice to Vindicator prior to any such visits.
6. Nordion may at any time and at its own expense upon ten (10) days
written notice, (to minimize disruption of Vindicator's operations),
request that Vindicator provide reasonable access to the Facility in
order that Nordion may remove its Cobalt-60.
7. Vindicator warrants and agrees that it will keep and maintain the
Cobalt-60 at its Facility located in Mulberry, Florida and at no
other place or places unless otherwise requested by Nordion.
8. Vindicator shall indemnify and hold Nordion harmless from and against
any and all claims, demands, actions, personal injury, death, suits
or proceedings of whatever nature (hereinafter "Claims") with regards
to the Cobalt-60 including, without limitation, all costs and
expenses incurred (including reasonable attorney's fees), with
regards to any claims brought or instituted by a third party and
based on or arising out of the use by Vindicator of the Cobalt-60
manufactured, supplied and installed by Nordion. Each party shall
promptly notify the other of any Claims that it believes to be
covered by this paragraph.
Nordion shall indemnify and hold Vindicator harmless from and against
any and all claims (including reasonable attorney's fees) brought or
instituted by a third party and based on or arising due to defective
or improper manufacturing, shipping or installation of the Cobalt-60
by Nordion.
Vindicator (or Nordion, as the case may be) may at its option assume
the defense or substitute itself for the other party as the party in
interest with respect to such Claims. If Vindicator (or Nordion)
assumes the defense or substitutes itself as the party in interest,
the other party shall provide reasonable cooperation with respect to
the defense against such Claims.
Neither party shall be liable to the other party or third parties for
indirect, contingent, special or consequential damages, including
loss of profit, loss of time or lose of use.
9. Upon the happening of any of the following events, Nordion shall be
entitled to summarily terminate this Agreement and retake possession
of the Cobalt-60 (and containers) without prejudice to any other
remedy which Nordion may have against Vindicator, if Vindicator:
(i) commits a material breach of any of the provisions hereof
or any other agreement between the Parties;
(ii) is subject to an attachment or other lien against the
Cobalt-60 or other process of court;
(iii) (a) becomes insolvent, or (b) files any application or
petition in any tribunal for the appointment of a receiver
or trustee for all or a significant portion of its assets,
or (c) commences any proceeding under any bankruptcy or
reorganization statute or under any provision of the U.S.
Bankruptcy Code or under any dissolution or liquidation
law whether now or hereafter in effect, or if any petition
or application of the type described above is commenced
against Vindicator, or (d) makes an assignment for the
benefit of creditors or an order is entered for
appointment of a trustee or receiver for Vindicator or any
significant portion of its assets or adjudicating
Vindicator bankrupt.
Upon the occurrence of any of the events set out in sub-paragraphs
(ii) or (iii), Vindicator shall forthwith notify Nordion in writing.
Any payment made or expense incurred by Nordion (including reasonable
attorney fees and disbursements) in connection with the exercise by
Nordion of any right upon the occurrence of such event(s) shall be
borne by Vindicator.
10. Failure by either party to enforce at any time any of the provisions
of this Agreement shall not be construed as a waiver of its rights
hereunder. Any waiver of a breach of any provisions hereof shall not
affect the rights of either party in the event of any additional
breach.
11. Any notice or direction required or permitted to be given hereunder
shall be in writing and shall be given:
(i) by hand delivery of such notice or direction;
(ii) by mailing such notice or direction by prepaid registered
airmail; or
(iii) on a term hereafter provided by sending such notice or
direction by facsimile;
to such party at the following address:
If to Vindicator, Inc.
0000 Xxxxxxxxxxxx Xxxx, Xxxxx 0,
Xxxxx Xxxx,
Xxxxxxx,
XXX
Attention: President
If to Nordion International Inc.
000 Xxxxx Xxxx,
Xxxxxx, Xxxxxxx
X0X 0X0
Attention: General Counsel and Corporate Secretary
Telecopier: 000-000-0000
or at such other address as such party shall have communicated to the
other party hereto by notice given as aforesaid. Any notice, direction or
document delivered pursuant to sub-clause (i) of this section shall be
deemed to have been given or sent and received at the time such notice,
direction or document is delivered. Any notice, direction or document
mailed pursuant to sub-clause (ii) of this section shall be deemed to
have been given or sent and received on the tenth business day (excluding
Saturdays, Sundays and statutory holidays in the United States and
Canada) following the day on which such notice or direction is mailed. At
the time any notice or direction is sent pursuant to sub-clause (iii) of
this section, the party giving such notice or direction shall
concurrently mail a copy of such notice or direction to the other party
hereto in accordance with sub-clause (ii) of this section. If the copy of
such notice or direction is so mailed, such notice or direction shall be
deemed to have been given or received at the time such notice or
direction is sent in the manner specified in sub-clause (iii) of this
section.
12. Neither party shall incur any liability to the other or any other
person in the event it is delayed in the performance of its
obligations hereunder or for any failure to comply with the terms
hereof, solely by "Force Majeure."
For the purpose of this Agreement, "Force Majeure" shall mean any
cause of delay beyond the control of the party liable to perform
unless conclusive evidence to the contrary is provided and shall
include, but not by way of limitation, strike, lock-out, riots,
sabotage, acts of war or piracy, destruction of essential equipment
by fire, explosion, storm, flood, earthquake or delay caused by
failure of power supply or transport facility, act of any government
or any government instrumentality (including any action by the Atomic
Energy Control Board of Canada or its United States counterpart),
shortages or failure to secure raw material or machinery. In the
event of Force Majeure, the party defaulting thereupon shall promptly
notify the other party of the occurrence of such event.
13. Vindicator shall not assign, mortgage, pledge, charge or otherwise
encumber the Cobalt-60 or this Agreement or any of its respective
rights or obligations hereunder without the prior written consent of
Nordion. Any purported assignment by Vindicator without such consent
shall be of no effect.
Vindicator shall at all times protect and defend at its own cost and
expense the ownership of Nordion's Colbalt-60 against all claims,
liens, and legal processes of creditors and other persons. The
Cobalt-60 sources are and shall remain personal property of Nordion
and shall not become part of any real estate whether as a fixture or
otherwise.
14. Vindicator undertakes to post notice of Nordion's ownership of the
Cobalt-60 in plain view on or near the containment area in the
Facility and undertakes to provide Nordion with a written opinion
from its solicitors satisfactory to Nordion that; (i) the Uniform
Commercial Code of the State of Florida does not provide a procedure
for notice of retention of ownership of personal property and
notification thereof to third parties, and (ii) that notice of
ownership of personal property is generally achieved by posting
notice of ownership on or near the personal property.
15. This Agreement shall enure to the benefit of and shall be binding
upon the successors and assigns of the parties hereto.
16. This Agreement may not be modified in any manner except by further
written agreement signed by the duly authorized officers or
representatives of the parties.
17. Except to the extent necessary to perform its obligations hereunder,
or to comply with applicable law, regulation or rule, neither party
hereto shall without the prior written consent of the other party
disclose to any third party the terms and conditions of this
Agreement.
18. If any clause or part of a clause or any other provision in this
Agreement shall be or become void or unenforceable, the remainder of
this Agreement shall remain in full force and effect.
19. This Agreement shall be governed by, subject to and interpreted in
accordance with the laws of the State of Florida, U.S.A.
20. Vindicator acknowledges receipt on the date hereof of a copy of this
Agreement.
21. This Agreement shall come into effect on the date of the last
signature hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
VINDICATOR, INC.
By:
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Date: September 11, 1992
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NORDION INTERNATIONAL INC.
By:
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By: Xxxxx Xxxxxx
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Date: September 11, 1992
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