METAL SUPPLY AGREEMENT BETWEEN NOVELIS INC. & ALCAN INC.
Published on March 30, 2005
EXHIBIT 10.5
EXECUTION COPY
(METAL SUPPLY AGREEMENT #4
SHEET INGOT - EUROPE)
METAL SUPPLY AGREEMENT
between
NOVELIS INC.
(as Purchaser)
and
ALCAN INC.
(as Supplier)
FOR THE SUPPLY OF SHEET INGOT IN EUROPE
DATED JANUARY 5, 2005, WITH EFFECT AS OF THE EFFECTIVE DATE
TABLE OF CONTENTS
METAL SUPPLY AGREEMENT
THIS AGREEMENT entered into in the City of Montreal, Province of Quebec, is
dated January _____, 2005, with effect as of the Effective Date.
BETWEEN: NOVELIS INC., a corporation incorporated under the Canada Business
Corporations Act ("NOVELIS" or the "PURCHASER");
AND: ALCAN INC., a corporation organized under the Canada Business
Corporations Act ("ALCAN" or the "SUPPLIER").
RECITALS:
WHEREAS Alcan and Novelis have entered into a Separation Agreement pursuant to
which they set out the terms and conditions relating to the separation of the
Separated Businesses from the Remaining Alcan Businesses (each as defined
therein), such that the Separated Businesses are to be held, as at the Effective
Time (as defined therein), directly or indirectly, by Novelis (such agreement,
as amended, restated or modified from time to time, the "SEPARATION AGREEMENT").
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WHEREAS the Supplier and its Affiliates wish to supply, and the Purchaser and
its Affiliates wish to purchase, subject to the terms and conditions of this
Agreement, Metal (as defined below) required by the Purchaser and its Affiliates
at the Delivery Sites (as defined below).
WHEREAS the Parties have entered into this Agreement as principals and as agents
for their Subsidiaries in order to set forth such terms and conditions.
NOW THEREFORE, in consideration of the mutual agreements, covenants and other
provisions set forth in this Agreement, the Parties hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
For the purposes of this Agreement, the following terms and expressions and
variations thereof shall, unless another meaning is clearly required in the
context, have the meanings specified or referred to in this Section 1.1:
"AFFECTED PARTY" has the meaning set forth in Section 3.1.
"AFFILIATE" of any Person means any other Person that, directly or
indirectly, controls, is controlled by, or is under common control with
such first Person as of the date on which or at any time during the period
for when such determination is being made. For purposes of this definition,
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or other
interests, by contract or otherwise and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AGREEMENT" means this Metal Supply Agreement, including all of the
Schedules hereto.
"ALCAN" means Alcan Inc.
"ALCAN GROUP" means Alcan Inc. and its Subsidiaries from time to time on
and after the Effective Date.
"ANNUAL BASE QUANTITY" means
(i) in respect of Contract Year 1, ***Tonnes,
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(ii) in respect of Contract Year 2, *** Tonnes,
(iii) in respect of Contract Year 3, *** Tonnes, and
(iv) It is anticipated that the Parties will reach agreement on a new
supply agreement superseding this agreement, effective starting the
end of Contract Year 3. If the Parties fail to reach such an
agreement, this contract will continue to be in force through the end
of Contract Year *** , with the Annual Base Quantity for Contract
Years *** being equal to the Annual Base Quantity of the prior
Contract Year less a possible reduction equal to *** % of the Contract
Year 3 Annual Base Quantity. This reduction of Annual Base Quantity
for any of Contract Years *** can be triggered unilaterally by either
Party by providing written notice no later than 18 months prior to the
start of the relevant Contract Year.
As an example, the Annual Base Quantity for Contract Year *** will be equal
to *** Tonnes (the Annual Base Quantity for contract year *** , assuming no
volume reductions pursuant to Section 2.1(c)) unless either Supplier or
Purchaser notifies the other Party by June 30 of Contract Year 2 that it is
triggering a reduction of *** Tonnes ( *** % of the Annual Base Quantity
for Contract Year 3). In the latter case, the Annual Base Quantity for
Contract Year *** would become *** Tonnes. "ANNUAL ORDER QUANTITY" means,
in respect of any Contract Year, an amount in Tonnes, which is equal to or
greater than *** % of the Annual Base Quantity for such Contract Year, and
less than or equal to the Annual Base Quantity for such Contract Year,
unless otherwise agreed by the Parties, which amount is notified by the
Purchaser to the Supplier pursuant to Section 2.6.
"APPLICABLE LAW" means any applicable law, rule or regulation of any
Governmental Authority or any outstanding order, judgment, injunction,
ruling or decree by any Governmental Authority.
"APPLICABLE LME DISCOUNT PERCENTAGE" means, for each of *** , inclusive,
*** %, and for any Contract Year from and after *** , such percentage as
may be agreed by the Parties in connection with any extension of the Term
pursuant to Section 5.3.
"BILL OF LADING DATE" means the date of the bill of lading representing
Metal cargo to be delivered under this Agreement.
"BUSINESS CONCERN" means any corporation, company, limited liability
company, partnership, joint venture, trust, unincorporated association or
any other form of association.
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"BUSINESS DAY" means any day excluding (i) Saturday, Sunday and any other
day which, in the City of London, Frankfurt or Zurich is a legal holiday,
or (ii) a day on which banks are authorized by Applicable Law to close in
the City of London, Frankfurt or Zurich.
"CIP" means, to the extent not inconsistent with the provisions of this
Agreement, CIP as defined in Incoterms 2000, published by the ICC, Paris,
France, as amended from time to time.
"COMMERCIALLY REASONABLE EFFORTS" means the efforts that a reasonable and
prudent Person desirous of achieving a business result would use in similar
circumstances to ensure that such result is achieved as expeditiously as
possible in the context of commercial relations of the type contemplated in
this Agreement; provided, however, that an obligation to use Commercially
Reasonable Efforts under this Agreement does not require the Person subject
to that obligation to assume any material obligations or pay any material
amounts to a Third Party or take actions that would reduce the benefits
intended to be obtained by such Person under this Agreement.
"CONSENT" means any approval, consent, ratification, waiver or other
authorization.
"CONSULTATION PERIOD" has the meaning set forth in Section 2.5.
"CONTRACT PRICE" means, for each Tonne of Metal sold and purchased
hereunder in any month:
(a) in respect of Metal supplied to a Delivery Site outside of the United
Kingdom from a Supplier Facility located inside Continental Europe,the
aggregate of the following:
(i) the LME 3-Month Aluminum Price for the month preceding the month
of the Bill of Lading Date;
(ii) minus the Applicable LME Discount Percentage of the LME 3-Month
Aluminum Price;
(iii) plus the Logistics Cost, or in the case of delivery from a
Supplier Facility located outside of Continental Europe, plus the
cost of freight and insurance from Rotterdam to the Delivery Site
as is the current practice, (unless purchaser arranges and pays
for freight, in which event such charge shall not be applied);
(iv) plus the Product Premium;
(v) plus the EC Duty Paid Premium (LME duty paid premium indicator /
HG Cash (average of bid and ask), as published in Metal Bulletin,
applicable to the month of the Bill of Lading Date.
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(b) in respect of Metal supplied to a Delivery Site in the United Kingdom,
the aggregate of:
(i) the LME 3-Month Aluminum Price for the Month preceding the month
of the Bill of Lading Date;
(ii) minus the Applicable LME Discount Percentage of the LME 3-Month
Aluminum Price;
(iii) plus the Logistics Cost (unless Purchaser arranges and pays for
the freight, in which event such charge shall not be applied);
(iv) plus the Product Premium;
(v) plus the EC Duty Paid Premium (average of bid and ask) for the
month prior to the month of the Bill of Lading Date; and
(vi) minus, in the case of supply of Metal to Rogerstone, the
Rogerstone Discount;
"CONTRACT YEAR" means (a) initially the period commencing on the Effective
Date and ending on the last day of the calendar year in which the Effective
Date occurs (such initial period being "CONTRACT YEAR 1") and (b)
thereafter, each successive period consisting of twelve calendar months
(the first such period being "CONTRACT YEAR 2"), provided that the final
Contract Year shall end on the last day of the Term.
"DEFAULT INTEREST RATE" means the rate of interest charged by Supplier for
late payments in accordance with Supplier's normal commercial practice, as
set forth in invoices issued by Supplier hereunder.
"DEFAULTING PARTY" has the meaning set forth in Section 6.
"DELIVERY SITE" means any of the following facilities of the Purchaser, as
specified, in respect of each shipment of Metal hereunder in the Firm
Orders provided by the Purchaser hereunder:
(a) the following locations in the United Kingdom:
(i) Rogerstone;
(ii) Bridgnorth; and
(b) the following locations in continental Europe:
(i) Norf;
(ii) Sierre;
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(iii) Annecy; and
(c) such other facilities of the Purchaser as may be agreed by the
Parties.
"DISPUTES" has the meaning set forth in Section 9.1.
"DOLLARS" or "$" means the lawful currency of the United States of America.
"EC DUTY PAID PREMIUM" means for any calendar month, the arithmetic average
of the EC Duty Paid Premium for primary high grade aluminum, as published
by Metal Bulletin on each day during the calendar month preceding such
calendar month or as otherwise determined pursuant to Section 2.10(c).
"EFFECTIVE DATE" means the "Effective Date" as defined in the Separation
Agreement.
"ESTIMATED ANNUAL CAPACITY" has the meaning set out in Section 2.4(b)(i),
subject to any adjustment pursuant to Section 2.5.
"ESTIMATED ANNUAL ORDER QUANTITY" has the meaning set out in Section
2.3(b)(i), subject to any adjustment pursuant to Section 2.5.
"ESTIMATED MONTHLY CAPACITY" has the meaning set out in Section 2.4(b)(ii),
subject to any adjustment pursuant to Section 2.5.
"ESTIMATED MONTHLY CAPACITY UPDATE" has the meaning set forth in Section
2.7(a).
"ESTIMATED MONTHLY DEMAND" has the meaning set out in Section 2.3(b)(ii),
subject to any adjustment pursuant to Section 2.5, 2.6(ii) or Section
2.7(b)(ii).
"EUROS" means the lawful currency of the member states of the European
Union that adopt the single currency in accordance with the Treaty
Establishing the European Community, as amended by the Treaty on European
Union.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.
"FIRM ORDER" has the meaning set forth in Section 2.7(b)(i).
"FORCE MAJEURE" has the meaning set forth in Section 3.2.
"GOVERNMENTAL AUTHORITY" means any court, arbitration panel, governmental
or regulatory authority, agency, stock exchange, commission or body.
"GOVERNMENTAL AUTHORIZATION" means any Consent, license, certificate,
franchise, registration or permit issued, granted, given or otherwise made
available by, or under the authority of, any Governmental Authority or
pursuant to any Applicable Law.
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"ICC" means the International Chamber of Commerce.
"INCOTERMS 2000" means the set of international rules updated in the year
2000 for the interpretation of the most commonly used trade terms for
foreign trade, as published by the ICC.
"LIABILITIES" has the meaning set forth in the Separation Agreement.
"LME" means the London Metal Exchange.
"LME 3-MONTH ALUMINUM PRICE" for any calendar month means the arithmetic
average of the LME 3-Month seller's and buyer's price for primary high
grade aluminum, as published in Metal Bulletin on each day during the
calendar month preceding such calendar month or as otherwise determined
pursuant to Section 2.10(b). For avoidance of doubt, the LME 3-Month
Aluminum Price for the month of April will be based on aluminum prices
published during the month of March.
"LOGISTICS COST" means those logistics-related costs charged to Purchaser
in accordance with current practice as at the Effective Date, as further
set forth in Schedule 4.
"METAL" means aluminum sheet ingot having the specifications set forth in
SCHEDULE 1.
"MINIMUM ANNUAL PURCHASE QUANTITY" means an amount in Tonnes in respect of
each Contract Year, equal to ***% of the Annual Order Quantity for such
Contract Year.
"MONTH M1" has the meaning set forth in Section 2.7(b)(i).
"MONTHLY OFFTAKE QUOTE" has the meaning set out in Section 2.7(b).
"NOVELIS" means Novelis Inc.
"NOVELIS GROUP" means Novelis Inc. and its Subsidiaries from time to time
on and after the Effective Date.
"PARTY" means each of the Purchaser and the Supplier as a party to this
Agreement and "PARTIES" means both of them.
"PERSON" means any individual, Business Concern or Governmental Authority.
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"PRODUCT PREMIUM" means those product-related premiums charged to Purchaser
in accordance with current practice and as further set forth in Schedule 5.
"PURCHASER" has the meaning set forth in the Preamble to this Agreement.
"ROGERSTONE DISCOUNT" means in respect of each Tonne of Metal supplied to
Purchaser's Rogerstone facility, $***.
"SALES TAX" means any sales, use, consumption, goods and services, value
added or similar tax, duty or charge imposed by a Governmental Authority
pursuant to Applicable Law.
"SEPARATION AGREEMENT" has the meaning set out in the Preamble to this
Agreement.
"SPECIFICATIONS" means specifications for Metal as set out in SCHEDULE 1.
"SUBSIDIARY" of any Person means any corporation, partnership, limited
liability entity, joint venture or other organization, whether incorporated
or unincorporated, of which a majority of the total voting power of capital
stock or other interests entitled (without the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof, is at the time owned or controlled, directly or indirectly, by
such Person.
"SUPPLIER" has the meaning set forth in the Preamble to this Agreement.
"SUPPLIER FACILITIES" means any of the facilities of the Supplier located
at Dunquerque, Isal, Lochaber, Lynemouth, Vlissingen, St. Jean, Lannemezan,
or Alucam, or such other facilities as may be agreed by the Purchaser in
accordance with Section 2.1(b).
"SUPPLY SCHEDULE" means in respect of each Contract Year, the notice of
Estimated Annual Capacity for such Contract Year and Estimated Monthly
Capacity in respect of each calendar month therein, delivered by the
Supplier pursuant to Section 2.4(b).
"TERM" has the meaning set forth in Section 5.2.
"TERMINATING PARTY" has the meaning set forth in Section 6.
"THIRD PARTY" means a Person that is not a Party to this Agreement, other
than a member or an Affiliate of Alcan Group or a member or an Affiliate of
Novelis Group.
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"THIRD PARTY CLAIM" has the meaning set forth in the Separation Agreement.
"TONNE" means 1,000 kilograms.
1.2 CURRENCY
All currency references to LME metal-related components herein are to U.S.
dollars unless otherwise specified. All other references to currency herein
are to Euros unless otherwise specified. All currency conversions required
for purposes of calculating the applicable Contract Price and various
components thereof as well as any other amounts payable hereunder shall be
made utilizing the monthly average of the daily spot Euro/Dollar exchange
rate of the European Central Bank adjusted by the swap points on three-
month forward purchase contracts for the relevant currency.
1.3 VIENNA CONVENTION
The Parties agree that the terms of the United Nations Convention (Vienna
Convention) on Contracts for the International Sale of Goods (1980) shall
not apply to this Agreement or the obligations of the Parties hereunder.
2. METAL
2.1 SUPPLY AND SALE BY THE SUPPLIER
(a) Subject to the terms and conditions of this Agreement, beginning on
the Effective Date and continuing throughout the Term of this
Agreement, the Supplier shall supply and sell to the Purchaser "CIP
the applicable Delivery Site" the quantities of Metal determined in
accordance with this Agreement.
(b) The Supplier shall supply Metal from a Supplier Facility of the
Supplier's choosing provided that the relevant Supplier Facility is
qualified by the Supplier to supply the specific Metal alloys with
mould specifications and other material specifications requested by
the Purchaser Supplier shall provide details of supply by Supplier
Facility in the same form as provided in accordance with current
practice as at the Effective Date. Supplier may also Supply Metal from
such other sources and locations as may be agreed by the Parties. If
the Supplier wishes at any time to deliver Metal hereunder to the
Purchaser from a source other than the facilities named in the
definition of "Supplier Facilities" herein, it may do so provided such
Metal complies with the Specifications and the Purchaser has confirmed
in writing that the source of such Metal is acceptable to it. The
Purchaser shall act reasonably in providing such confirmation.
(c) The quantity of Metal which the Purchaser agrees to purchase and the
Supplier agrees to supply hereunder shall be subject to reduction on a
pro rata basis in
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the event the Supplier provides notice to the Purchaser that one of
the Supplier Facilities owned by the Supplier has been temporarily or
permanently shut down by the Supplier, provided such shut down has
occurred as a result of a good faith decision by the Supplier that the
continued operation of such Supplier Facility would be uneconomic or
otherwise unviable or non-value maximizing for the Supplier. This
reduction shall be for such quantity as may be agreed by the Parties
and, failing agreement, shall be for such quantity as is equal to the
Estimated Annual Capacity for the applicable Contract year multiplied
by the annual reduction capacity of the Supplier Facilities that have
been shut down, and divided by the total annual production capacity of
all Supplier Facilities before giving effect to the shut down.
Annual Base Quantity for the relevant Contract Years and other related
volume levels will be adjusted accordingly. Any reduction pursuant to
this section 2.1(c) in the Supplier's obligation to supply Metal shall
only take effect 18 months after Supplier has provided notice thereof
to Purchaser. Notwithstanding the foregoing, Supplier shall not be
entitled to reduce its Metal supply obligation pursuant to this
paragraph in connection with a permanent shut down of its Lannemezan
Smelter.
Likewise, should the Purchaser decide to shut down any of its
facilities being supplied under this Agreement, Purchaser will be
entitled to reduce Annual Base Quantities in a similar manner and with
the same 18-month notice to Supplier.
2.2 PURCHASE BY THE PURCHASER
Subject to the terms and conditions of this Agreement, beginning on the
Effective Date and continuing throughout the Term of this Agreement, the
Purchaser shall purchase and take delivery from the Supplier "CIP the
applicable Delivery Site" the quantities of Metal determined in accordance
with this Agreement.
2.3 NOTIFICATION OF ESTIMATED QUANTITIES OF METAL REQUIRED BY THE PURCHASER
(a) The Purchaser agrees to purchase and the Supplier agrees to supply, in
each Contract Year, in accordance with the terms hereof, a quantity of
Metal which is no less than the Minimum Annual Purchase Quantity for
such Contract Year.
(b) With respect to the purchase of Metal hereunder in any Contract Year,
the Purchaser shall provide to the Supplier no later than on September
1 of the Contract Year preceding such Contract Year:
(i) an estimate, in Tonnes, of the Annual Order Quantity (the
"ESTIMATED ANNUAL ORDER QUANTITY" for such Contract Year); and
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(ii) an estimate, in Tonnes, of the quantity of Metal required for
each month in such Contract Year (the "ESTIMATED MONTHLY
DEMAND"), provided (1) the amount for each month shall be less
than or equal to ***% of the Estimated Annual Order Quantity for
such Contract Year divided by 12, and greater than or equal to
***% (or, for no more than 2 months ***%) of the Estimated Annual
Order Quantity divided by 12, and (2) the aggregate of all
Estimated Monthly Demand amounts for all months in such Contract
Year shall equal the Estimated Annual Order Quantity notified
pursuant to paragraph (i) above.
The Estimated Annual Order Quantity for Contract Year 1 and the
Estimated Monthly Demand for each month in Contract Year 1, are set
out in SCHEDULE 2.
2.4 NOTIFICATION OF ESTIMATED QUANTITIES OF METAL SUPPLIED BY THE SUPPLIER
(a) The Supplier shall have no obligation to supply Metal hereunder in a
Contract Year in excess of an amount equal to the Annual Base Quantity
for such Contract Year, unless otherwise agreed by the Parties.
(b) With respect to the supply of Metal hereunder in any Contract Year,
the Supplier shall provide to the Purchaser no later than September 15
of the Contract Year preceding such Contract Year:
(i) an estimate, in Tonnes, of the Supplier's supply capacity of
Metal for such Contract Year (the "ESTIMATED ANNUAL CAPACITY"),
which amount shall be greater than or equal to the Annual Base
Quantity for such Contract Year, and
(ii) an estimate, in Tonnes, of the Supplier's supply capacity of
Metal for each month in such Contract Year (the "ESTIMATED
MONTHLY CAPACITY"), provided that the Estimated Monthly Capacity
in respect of each month shall be equal to or greater than the
Estimated Monthly Demand for such month notified by the Purchaser
in accordance with Section 2.3(b)(ii).
In determining the Estimated Annual Capacity and the Estimated Monthly
Capacity, in each case, the Supplier shall take into account actual
operating days in the relevant Contract Year or month, as applicable
(taking into account planned shutdowns of the Supplier Facilities),
existing commitments of the Supplier for supply to other Persons, and
seasonal factors affecting the Supplier's capacity.
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The Estimated Annual Capacity for Contract Year 1 and the Estimated Monthly
Capacity for each month in Contract Year 1 are set out in SCHEDULE 2.
2.5 CHANGES TO ESTIMATES
In respect of the purchase and supply of Metal hereunder in any Contract
Year, the Purchaser and Supplier agree to consult during the period
September 1 to October 31 in the year preceding such Contract Year (the
"CONSULTATION PERIOD") with respect to offtake and capacity issues
effecting the estimates of purchase requirements and supply capacity
provided by the Purchaser and Supplier, respectively, pursuant to Sections
2.3 and 2.4. During such Consultation Period the Purchaser may propose to
purchase a quantity of Metal in such Contract Year in excess of 100% of the
Annual Base Quantity for such Contract Year and/or to modify the Estimated
Annual Order Quantity or Estimated Monthly Demand amounts notified by the
Purchaser in respect of such Contract Year, provided that the Supplier
shall be under no obligation to agree to such proposal by the Purchaser.
During such Consultation Period the Supplier may propose a revised Supply
Schedule provided that the Purchaser shall be under no obligation to agree
to such revised Supply Schedule, and the Supplier shall be under no
obligation to comply with the terms of such revised Supply Schedule, unless
the Parties agree to such changes. The Parties shall consult and negotiate
in good faith during the Consultation Period with respect to any such
matters proposed by the Purchaser or Supplier, as applicable, and will
discuss planned maintenance shutdowns at any of the Delivery Sites or the
Supplier Facilities and if possible, schedule down-time events relating to
such plant maintenance shutdowns for times which are mutually agreeable to
the Purchaser and the Supplier with a view to avoiding production
disruption at the Supplier Facilities or inventory build-ups at any of the
Supplier Facilities or the Delivery Sites.
2.6 NOTIFICATION OF ANNUAL ORDER QUANTITY
In respect of the purchase and supply of Metal hereunder in any Contract
Year, the Purchaser shall deliver to the Supplier on or before October 31
in the year preceding such Contract Year, a notice setting forth:
(i) the firm Annual Order Quantity for such Contract Year, which
shall be no less than the Minimum Annual Purchase Quantity
calculated for such Contract Year, and
(ii) the Estimated Monthly Demand (which may be updated from the
amount notified pursuant to Section 2.3(b)(ii)) for each month in
such Contract Year provided (1) such amount in respect of each
month shall be less than or equal to 110% of the Annual Order
Quantity for such Contract Year divided by 12, and greater than
or equal to 80% (or 75% for no more than 2 months) of the Annual
Order Quantity for such Contract Year divided by 12, and (2) such
amount in respect of any month does not exceed the Estimated
Monthly Capacity notified by the Supplier in
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respect of such month pursuant to Section 2.4(b)(ii) (as such
amount may be adjusted pursuant to Section 2.5).
2.7 MONTHLY QUANTITY MANAGEMENT
(a) Throughout the Term of this Agreement, by the first day of each month
(and if such day is not a Business Day, on the Business Day
immediately preceding such day), the Supplier shall notify the
Purchaser of its updated Estimated Monthly Capacity for each month by
Supplier Facility (including the month in which such notice is
delivered) of the then current Contract Year (such amount referred to
as the "ESTIMATED MONTHLY CAPACITY UPDATE"), which Estimated Monthly
Capacity Update:
(i) shall not be subject to adjustment in excess of ***% by the
Supplier in respect of the first three months in respect of which
such notice is sent, such that the amount notified in respect of
such months may not be reduced or increased by more than ***% in
subsequent Estimated Monthly Capacity Updates delivered under
this Section 2.7;
(ii) shall be an indicative amount for each of the remaining months in
the then current Contract Year included in such notification,
which amount may be modified in future Estimated Monthly Capacity
Updates delivered pursuant to this Section 2.7; and
(iii) shall be, in respect of each month, equal to or greater than the
Estimated Monthly Demand most recently notified by the Purchaser
in respect of such month pursuant to Section 2.6 (subject to any
adjustment pursuant to Section 2.5).
(b) Throughout the Term of this Agreement by the 15th day of each month
(and if such day is not a Business Day, on the Business Day
immediately preceding such 15th day), the Purchaser shall provide to
the Supplier a notice (referred to as the "MONTHLY OFFTAKE QUOTE")
setting forth the following:
(i) the quantity of Metal which the Purchaser commits to purchase
hereunder in the next succeeding month ("MONTH M1"), which
quantity, shall be greater than or equal to ***% of the Annual
Order Quantity for the Contract Year in which Month M1 takes
place divided by 12, and less than or equal to ***% of the Annual
Order Quantity for the Contract Year in which Month M1 takes
place divided by 12, and identifying the Delivery Site or
Delivery Sites to which such Metal should be delivered
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(which notification in respect of Month M1 is referred to herein
as the "FIRM ORDER" for such month), and the Purchaser hereby
agrees that it shall purchase from the Supplier in Month M1 a
quantity of Metal which is no less than ***% of the quantity
identified in the Firm Order, and no more than ***% than the
quantity identified in such Firm Order;
(ii) an updated Estimated Monthly Demand for each month subsequent to
Month M1 occurring in the Contract Year in which Month M1 occurs,
which updated amount:
(1) shall be greater than or equal to ***% (or ***% for no more
than 2 months) of the Annual Order Quantity for the Contract
Year in which such month takes place divided by 12, and less
than or equal to ***% of the Annual Order Quantity for the
Contract Year in which such month takes place divided by 12;
and
(2) when aggregated with all quantities of Metal actually
purchased by the Purchaser hereunder in all months prior to
Month M1 occurring in the same Contract Year, shall be no
less than the Minimum Annual Purchase Quantity in respect of
such Contract Year,
provided the Firm Order for Month M1 and each Estimated Monthly Demand
for each subsequent month shall be no more than the Estimated Monthly
Capacity Update most recently notified by the Supplier in respect of
such month.
Note: This section will be adapted to conform to the planning structure of
each quarter consisting of two months deemed to consist of four weeks each
and one month of five weeks.
2.8 WEEKLY QUANTITY MANAGEMENT
The Parties shall cooperate in coordinating capacity demand and shipments
within each calendar month. Supplier's weekly capacity shall, absent normal
course capacity constraints, be within the range of 90% to 110% of 1/4 of
the Estimated Monthly Capacity Update last provided by the Supplier
hereunder in respect of the month containing the relevant week.
Note: This section will be adapted to conform to the planning structure of
each quarter consisting of two months deemed to consist of four weeks each
and one month of five weeks.
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2.9 SUPPLIER'S SHIPPING OBLIGATIONS
(a) The Supplier shall supply to the Purchaser, in accordance with the
terms hereof, in each month, such quantity of Metal as is identified
by the Purchaser in respect of such calendar month in the Firm Order
for such month delivered by the Purchaser in accordance with Section
2.7(b)(i).
(b) Notwithstanding the provisions of Incoterms 2000 and Section 2.13, the
Supplier acknowledges its responsibility to make all necessary
arrangements for the shipment and insurance for the transportation of
Metal to the Delivery Site on behalf of the Purchaser unless purchaser
decides to arrange and pay for the freight. The Supplier shall act as
the disclosed agent of the Purchaser in entering into contracts for
hiring carriers and obtaining insurance for the shipment of Metal
under this Agreement. In doing this, the Supplier shall use
Commercially Reasonable Efforts to obtain competitive freight and
insurance rates and shall consult with the Purchaser before entering
into any long term contracts for hiring carriers or obtaining
insurance on behalf of the Purchaser. The Supplier shall use
Commercially Reasonable Efforts to ensure that such transportation is
suitable for delivering the Metal to the Delivery Site and complies
with insurance requirements.
(c) Matters regarding shipment and delivery performance hereunder shall be
governed by the provisions of SCHEDULE 3.
2.10 PRICE
(a) The price payable by the Purchaser to the Supplier for each Tonne of
Metal sold and purchased pursuant to Sections 2.1 and 2.2 shall be the
Contract Price applicable to the Delivery Site to which such Metal is
delivered. The date used for calculating the Contract Price for any
shipment of metal shall be the Bill of Lading Date.
(b) In the event that (i) LME ceases or suspends trading in aluminum, or
(ii) Metal Bulletin ceases publication of the relevant reference price
for determining the LME 3-Month Aluminum Price, the Parties shall meet
with a view to agreeing on an alternative publication or, as
applicable, reference price. If the Parties fail to reach an agreement
within sixty (60) days of any Party having notified the other to enter
into discussions to agree to an alternative publication or reference
price, then the Chairman of the LME in London, England or his nominee
shall be requested to select a suitable reference in lieu thereof
and/or an appropriate amendment to the terms of this Section 2.10. The
decision of the Chairman or his nominee shall be final and binding on
the Parties.
(c) In the event the EC Duty Paid Premium indicator is discontinued due to
the reduction or elimination of the 6% import duty on unwrought
aluminium, the EC Duty Paid Premium shall be replaced by a
corresponding European Market
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Premium indicator, if published by Metal Bulletin. If no such
replacement indicator is published, the Parties will enter into good
faith negotiations in order to amend the definition of EC Duty Paid
Premium.
2.11 QUALITY
(a) Metal supplied under this Agreement shall comply with the
Specifications set forth in SCHEDULE 1. The Supplier shall use
Commercially Reasonable Efforts to notify the Purchaser prior to
shipment of any Metal that does not meet Specifications. The Purchaser
shall not be required to accept delivery of any Metal that does not
meet Specifications. If the Purchaser does not accept delivery of
Metal not meeting Specifications, the Supplier's obligation shall be
limited to the assumption of all costs for return of such Metal to the
Supplier, and for the delivery of replacement Metal to the Purchaser.
All other express or implied warranties, conditions and other terms
relating to Metal hereunder, including warranties relating to
merchantability or fitness for a particular purpose, are hereby
excluded to the fullest extent permitted by Applicable Law.
(b) If the Specifications for Metal supplied by the Supplier change, the
Supplier may propose that the Specifications set forth in SCHEDULE 1
be amended to reflect such changes. If the revised Specifications do
not result in increased costs for the processing of such Metal by the
Purchaser, the Purchaser shall not unreasonably withhold or delay its
consent to such changed specifications.
2.12 PAYMENT
(a) The Purchaser shall pay the Supplier in full for each shipment of
Metal meeting the Specifications set out in SCHEDULE 1 or otherwise
accepted by the Purchaser in accordance with the Supplier's commercial
invoice within forty-five (45) days of the last day of the month of
the Bill of Lading Date.
(b) If the Purchaser believes that a shipment of Metal does not meet the
Specifications set out in SCHEDULE 1 and has rejected such shipment in
a timely manner in accordance with the terms hereof, it need not pay
the invoice. However, if the Purchaser subsequently accepts that the
Metal complies with the Specifications set out in SCHEDULE 1, the
Purchaser shall pay the invoice and, if payment is overdue pursuant to
Section 2.12(a), interest in accordance with Section 2.12(c).
(c) If any payment required to be made pursuant to Section 2.12(a) above
is overdue, the full amount shall bear interest at a rate per annum
equal to the Default Interest Rate calculated on the actual number of
days elapsed, accrued from and excluding the date on which such
payment was due, up to and including the actual date of receipt of
payment in the nominated bank or banking account.
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(d) All amounts paid to the Supplier or the Purchaser hereunder shall be
paid in Euros, pounds, sterling or Dollars, at the option of the Party
making the payment, by wire transfer in immediately available funds to
the account specified by the Supplier or Purchaser, as applicable, by
notice from time to time by one Party to the other hereunder.
(e) If any Party fails to purchase or supply, as applicable, any quantity
of Metal in any month as required under the terms of this Agreement,
such Party shall be liable to the other Party for all direct damages,
losses and costs resulting from such failure, provided that such other
Party shall use its Commercially Reasonable Efforts to mitigate such
damages, losses and costs.
2.13 DELIVERY
Metal shall be delivered CIP the Delivery Site identified in each Firm
Order. The delivery of Metal pursuant to this Section 2.13 shall be
governed by Incoterms 2000, as amended from time to time.
2.14 TITLE AND RISK OF LOSS
Title to and risk of damage to and loss of Metal shall pass to the
Purchaser as the Metal is delivered by the Supplier to the carrier.
2.15 PURCHASER AS PRINCIPAL
The Purchaser warrants that all Metal to be purchased hereunder shall be
purchased for Purchaser's own consumption (and, as applicable, that of its
Subsidiaries). The Purchaser agrees that it shall not re-sell or otherwise
make available to any Person (other than a Subsidiary) any Metal purchased
from the Supplier hereunder, other than in respect of transactions
undertaken in small quantities by the Purchaser to balance purchases or
Purchaser's metal position.
3. FORCE MAJEURE
3.1 EFFECT OF FORCE MAJEURE
No Party shall be liable for any loss or damage that arises directly or
indirectly through or as a result of any delay in the fulfilment of or
failure to fulfil its obligations in whole or in part (other than the
payment of money as may be owed by a Party) under this Agreement where the
delay or failure is due to Force Majeure. The obligations of the Party
affected by the event of Force Majeure (the "AFFECTED PARTY") shall be
suspended, to the extent that those obligations are affected by the event
of Force Majeure, from the date the Affected Party first gives notice in
respect of that event of Force Majeure until cessation of that event of
Force Majeure (or the consequences thereof).
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3.2 DEFINITION
"FORCE MAJEURE" shall mean any act, occurrence or omission (or other
event), subsequent to the commencement of the Term hereof, which is beyond
the reasonable control of the Affected Party including, but not limited to:
fires, explosions, accidents, strikes, lockouts or labour disturbances,
floods, droughts, earthquakes, epidemics, seizures of cargo, wars (whether
or not declared), civil commotion, acts of God or the public enemy, action
of any government, legislature, court or other Governmental Authority,
action by any authority, representative or organisation exercising or
claiming to exercise powers of a government or Governmental Authority,
compliance with Applicable Law, blockades, power failures or curtailments,
inadequacy or shortages or curtailments or cessation of supplies of raw
materials or other supplies, failure or breakdown of equipment of
facilities, the invocation of Force Majeure by any party to an agreement
under which any Party's operations are affected, and any declaration of
Force Majeure by the facility producing the Metal, or any other event
beyond the reasonable control of the Parties whether or not similar to the
events or occurrences enumerated above. In no circumstances shall problems
with making payments constitute Force Majeure.
3.3 NOTICE
Upon the occurrence of an event of Force Majeure, the Affected Party shall
promptly give notice to the other Party hereto setting forth the details of
the event of Force Majeure and an estimate of the likely duration of the
Affected Party's inability to fulfil its obligations under this Agreement.
The Affected Party shall use Commercially Reasonable Efforts to remove the
said cause or causes and to resume, with the shortest possible delay,
compliance with its obligations under this Agreement provided that the
Affected Party shall not be required to settle any strike, lockout or
labour dispute on terms not acceptable to it. When the said cause or causes
have ceased to exist, the Affected Party shall promptly give notice to the
other Party that such cause or causes have ceased to exist.
3.4 PRO RATA ALLOCATION
If the Supplier's supply of any Metal to be delivered to the Purchaser is
stopped or disrupted by an event of Force Majeure, the Supplier shall have
the right to allocate its available supplies of such Metal, if any, among
any or all of its existing customers including internal customers, in a
fair and equitable manner. In addition, where the Supplier is the Affected
Party, it may (but shall not be required to) offer to supply, from another
source, Metal of similar quality in substitution for the Metal subject to
the event of Force Majeure to satisfy that amount which would have
otherwise been sold and purchased hereunder at a price which may be more or
less than the price hereunder.
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3.5 CONSULTATION
Within thirty (30) days of the cessation of the event of Force Majeure, the
Parties shall consult with a view to reaching agreement as to the
Supplier's obligation to provide, and the Purchaser's obligation to take
delivery of, that quantity of Metal that could not be sold and purchased
hereunder because of the event of Force Majeure, provided that any such
shortfall quantity has not been replaced by substitute Metal pursuant to
the terms above.
In the absence of any agreement by the Parties, failure to deliver or
accept delivery of Metal which is excused by or results from the operation
of the foregoing provisions of this Section 3 shall not extend the Term of
this Agreement and the quantities of Metal to be sold and purchased under
this Agreement shall be reduced by the quantities affected by such failure.
3.6 TERMINATION
(a) If an event of Force Majeure where the Affected Party is the Purchaser
shall continue for more than *** consecutive calendar months, then the
Supplier shall have the right to terminate this Agreement.
(b) If an event of Force Majeure where the Affected Party is the Supplier
shall continue for more than *** consecutive calendar months, then the
Purchaser shall have the right to terminate this Agreement.
4. ASSIGNMENT
4.1 PROHIBITION ON ASSIGNMENTS
No Party shall assign or transfer this Agreement, in whole or in part, or
any interest or obligation arising under this Agreement, except as
permitted by Section 4.2, without the prior written consent of the other
Party.
4.2 ASSIGNMENT WITHIN ALCAN GROUP OR NOVELIS GROUP
(a) With the consent of Novelis, such consent not to be unreasonably
withheld or delayed, Alcan may elect to have one or more of the
Persons comprising the
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*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-20-
Alcan Group assume the rights and obligations of the Supplier under
this Agreement, provided that
(i) Alcan shall remain fully liable for all obligations of the
Supplier hereunder, and
(ii) the transferee will remain at all times a member of the Alcan
Group;
any such successor to Alcan as a Supplier under this Agreement shall
be deemed to be the "SUPPLIER" for all purposes of the Agreement.
(b) With the consent of Alcan, such consent not to be unreasonably
withheld or delayed, Novelis may elect to have one or more of the
Persons comprising the Novelis Group assume the rights and obligations
of the Purchaser under this Agreement, provided that
(i) Novelis shall remain fully liable for all obligations of the
Purchaser hereunder, and
(ii) the transferee will remain at all times a member of the Novelis
Group;
any such successor to Novelis as Purchaser under this Agreement shall
be deemed to be the "PURCHASER" for all purposes of this Agreement.
5. TERM AND TERMINATION
5.1 EFFECTIVENESS
This Agreement shall come into effect upon the Effective Date.
5.2 TERM
The term of this Agreement (the "TERM") shall be from the Effective Date
until *** , unless terminated earlier or extended pursuant to the
provisions of this Agreement.
5.3 EXTENSION
One year prior to the expiration of the Term, the Parties may, upon the
request of any Party, meet to negotiate in good faith a possible extension
of the Term for a further period on terms to be mutually agreed (including
in respect of quantities and price of
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*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-21-
Metal to be purchased and supplied hereunder). If no such agreement is
reached between the Parties, the Agreement shall terminate upon expiry of
the Term.
5.4 TERMINATION
This Agreement shall terminate:
(a) upon expiry of the Term;
(b) upon the mutual agreement of the Parties prior to the expiry of the
Term;
(c) pursuant to Section 3.6 as a result of Force Majeure; or
(d) upon the occurrence of an Event of Default, in accordance with Section
6.
6. EVENTS OF DEFAULT
This Agreement may be terminated in its entirety immediately at the option
of a Party (the "TERMINATING PARTY"), in the event that an Event of Default
occurs in relation to the other Party (the "DEFAULTING PARTY"), and such
termination shall take effect immediately upon the Terminating Party
providing notice to the Defaulting Party of the termination.
For the purposes of this Agreement, each of the following shall
individually and collectively constitute an "EVENT OF DEFAULT" with respect
to a Party:
(a) such Party defaults in payment of any payments which are due and
payable by it pursuant to this Agreement, and such default is not
cured within thirty (30) days following receipt by the Defaulting
Party of notice of such default;
(b) such Party breaches any of its material obligations pursuant to this
Agreement (other than as set out in paragraph (a) above), and fails to
cure it within sixty (60) days after receipt of notice from the
non-defaulting Party specifying the default with reasonable detail and
demanding that it be cured, provided that if such breach is not
capable of being cured within sixty (60) days after receipt of such
notice and the Party in default has diligently pursued efforts to cure
the default within the sixty (60) day period, no Event of Default
under this paragraph (b) shall occur;
(c) such Party breaches any material representation or warranty, or fails
to perform or comply with any material covenant, provision,
undertaking or obligation in or of the Separation Agreement;
(d) in relation to the Purchaser (1) upon the occurrence of a Non Compete
Breach (as defined in the Separation Agreement) and the giving of
notice of the termination of this Agreement by Alcan to Novelis
pursuant to
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Section 14.03(b) of the Separation Agreement and pursuant to this
paragraph of this Agreement, or (2) upon the occurrence of a Change of
Control Non Compete Breach (as defined in the Separation Agreement)
and the giving of notice of the termination of this Agreement by Alcan
to Novelis pursuant to Section 14.04(e) of the Separation Agreement,
in which event the termination of this Agreement shall be effective
immediately upon Alcan providing Novelis notice pursuant to Section
14.03(b) or Section 14.04(e) of the Separation Agreement;
(e) such Party (i) is bankrupt or insolvent or takes the benefit of any
statute in force for bankrupt or insolvent debtors, or (ii) files a
proposal or takes any action or proceeding before any court of
competent jurisdiction for dissolution, winding-up or liquidation, or
for the liquidation of its assets, or a receiver is appointed in
respect of its assets, which order, filing or appointment is not
rescinded within sixty (60) days; or
(f) proceedings are commenced by or against such Party under the laws of
any jurisdiction relating to reorganization, arrangement or
compromise.
7. REPRESENTATIONS AND WARRANTIES
The Parties hereby reiterate for the purposes of this Agreement those
representations and warranties set forth in Article VI of the Separation
Agreement.
8. CONFIDENTIALITY
Each of the Parties shall at all times be in full compliance with its
obligations under Sections 11.07 and 11.08 (Confidentiality) of the
Separation Agreement.
9. DISPUTE RESOLUTION
9.1 DISPUTES
The Master Agreement with respect to Dispute Resolution, effective on the
Effective Date, among the Parties and other parties thereto shall govern
all disputes, controversies or claims (whether arising in contract, delict,
tort or otherwise) ("DISPUTES") between the Parties that may arise out of,
or relate to, or arise under or in connection with, this Agreement or the
transactions contemplated hereby (including all actions taken in
furtherance of the transactions contemplated hereby), or the commercial or
economic relationship of the Parties relating hereto or thereto.
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9.2 CONTINUING OBLIGATIONS
The existence of a Dispute with respect to this Agreement between the
Parties shall not relieve either Party from performance of its obligations
under this Agreement that are not the subject of such Dispute.
10. MISCELLANEOUS
10.1 CONSTRUCTION
The terms of Section 16.04 (Construction) of the Separation Agreement shall
apply to this Agreement, mutatis mutandis, as if all references therein to
the "Agreement" were deemed to be references to this Agreement.
10.2 NOTICES
All notices and other communications under this Agreement shall be in
writing and shall be deemed to be duly given (a) on the date of delivery if
delivered personally, (b) on the first Business Day following the date of
dispatch if delivered by a nationally recognized next-day courier service,
(c) on the date of actual receipt if delivered by registered or certified
mail, return receipt requested, postage prepaid or (d) if sent by facsimile
transmission, when transmitted and receipt is confirmed by telephone. All
notices hereunder shall be delivered as follows:
IF TO THE PURCHASER, TO:
NOVELIS INC.
Suite 3800
Royal Bank Plaza, South Tower
P.O. Box 84
200 Bay Street
Toronto, Ontario
M5J 2Z4
Fax: 416-216-3930
Attention: Chief Executive Officer
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IF TO THE SUPPLIER, TO:
ALCAN INC.
1188 Sherbrooke Street West
Montreal, Quebec
H3A 3G2
Fax: 514-848-8115
Attention: Chief Legal Officer
Any Party may, by notice to the other Party, change the address or fax
number to which such notices are to be given.
10.3 GOVERNING LAW
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein, irrespective of conflict of laws principles under
Quebec law, as to all matters, including matters of validity, construction,
effect, enforceability, performance and remedies.
10.4 JUDGMENT CURRENCY
The obligations of a Party to make payments hereunder shall not be
discharged by an amount paid in any currency other than Euros, whether
pursuant to a court judgment or arbitral award or otherwise, to the extent
that the amount so paid upon conversion to Euros and transferred to an
account indicated by the Party to receive such funds under normal banking
procedures does not yield the amount of Euros due, and each Party hereby,
as a separate obligation and notwithstanding any such judgment or award,
agrees to indemnify the other Party against, and to pay to such Party on
demand, in Euros, any difference between the sum originally due in Euros
and the amount of Euros received upon any such conversion and transfer.
10.5 ENTIRE AGREEMENT
This Agreement, the Separation Agreement and schedules, exhibits, annexes
and appendices hereto and thereto and the specific agreements contemplated
herein or thereby, contain the entire agreement between the Parties with
respect to the subject matter hereof and supersede all previous agreements,
negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter. No agreements or
understandings exist between the Parties with respect to the subject matter
hereof other than those set forth or referred to herein or therein.
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10.6 CONFLICTS
In case of any conflict or inconsistency between this Agreement and the
Separation Agreement, this Agreement shall prevail.
10.7 SEVERABILITY
If any provision of this Agreement or the application thereof to any Person
or circumstance is determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions hereof, or the
application of such provision to Persons or circumstances or in
jurisdictions other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner adverse to any Party. Upon such determination, the Parties shall
negotiate in good faith in an effort to agree upon such a suitable and
equitable provision to effect the original intent of the Parties.
10.8 SURVIVAL
The obligations of the Parties under Sections 2.10, 2.11, 2.12, 8, 9, 10.3
and 10.8 and liability for the breach of any obligation contained herein
shall survive the expiration or earlier termination of this Agreement.
10.9 EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the Parties and
delivered to the other Party.
10.10 AMENDMENTS
No provisions of this Agreement shall be deemed waived, amended,
supplemented or modified by any Party, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the Party against whom it is sought to enforce such
waiver, amendment, supplement or modification.
10.11 WAIVERS
No failure on the part of a Party to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by Applicable Law.
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10.12 NO PARTNERSHIP
Nothing contained herein or in the Agreement shall make a Party a partner
of any other Party and no Party shall hold out the other as such.
10.13 TAXES, ROYALTIES AND DUTIES
All royalties, taxes and duties imposed or levied on any Metal delivered
hereunder (other than any taxes on the income of the Supplier) shall be for
the account of and paid by the Purchaser.
10.14 LIMITATIONS OF LIABILITY
(a) Neither Party shall be liable to the other Party for any indirect,
collateral, incidental, special, consequential or punitive damages,
lost profit or failure to realize expected savings or other commercial
or economic loss of any kind, howsoever caused, and on any theory of
liability (including negligence) arising in any way out of this
Agreement; provided, however, that the foregoing limitations shall not
limit any Parties' indemnification obligations for Liabilities with
respect to Third Party Claims as set forth Article IX of the
Separation Agreement (as if such Article IX was set out in full herein
by reference to the obligations of the Parties hereunder).
(b) Sections 9.04, 9.05, 9.06, 9.07 and 9.09 of the Separation Agreement
shall apply mutatis mutandis with respect to any Liability subject to
any indemnification or reimbursement pursuant to this Agreement.
10.15 PRINCIPALS AND AGENTS
The Parties agree that each of Novelis and Alcan is entering into this
Agreement as principal on its own behalf and as agent for its Subsidiaries
that may, from time to time, wish to purchase or supply, as applicable,
Metal under the terms of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the Parties hereto have caused this Metal Supply Agreement
to be executed by their duly authorized representatives.
NOVELIS INC.
By: /s/ Brian W. Sturgell
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Name:
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Title:
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ALCAN INC.
By: /s/ David McAusland
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Name:
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Title:
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