EXHIBIT 10.7
FINAL VERSION
ALUMINA SUPPLY AGREEMENT
between
NOVELIS DO BRASIL LTDA.
(as Purchaser)
and
ALCAN ALUMINA LTDA.
(as Supplier)
FOR THE ARATU (BRAZIL) ALUMINUM SMELTER
DATED DECEMBER ____, 2004 WITH EFFECT AS OF THE EFFECTIVE DATE
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION...........................................................................1
1.1 DEFINITIONS.....................................................................................1
1.2 CURRENCY........................................................................................5
1.3 VIENNA CONVENTION...............................................................................5
2. ALUMINA..................................................................................................6
2.1 SUPPLY AND SALE BY THE SUPPLIER.................................................................6
2.2 PURCHASE BY THE PURCHASER.......................................................................6
2.3 QUANTITIES OF ALUMINA...........................................................................6
2.4 SCHEDULING OF QUANTITIES........................................................................6
2.5 SUPPLIER'S SHIPPING OBLIGATIONS.................................................................7
2.6 PRICE...........................................................................................8
2.7 QUALITY.........................................................................................8
2.8 PAYMENT.........................................................................................9
2.9 SETOFF.........................................................................................10
2.10 DELIVERY.......................................................................................10
2.11 TITLE AND RISK OF LOSS.........................................................................10
2.12 FAILURE TO SUPPLY..............................................................................10
3. WEIGHING, SAMPLING AND ANALYSIS.........................................................................11
3.1 WEIGHING.......................................................................................11
3.2 SAMPLING AND ANALYSIS..........................................................................11
4. FORCE MAJEURE...........................................................................................13
4.1 EFFECT OF FORCE MAJEURE........................................................................13
4.2 DEFINITION.....................................................................................13
4.3 NOTICE.........................................................................................14
4.4 PRO RATA ALLOCATION............................................................................14
4.5 CONSULTATION...................................................................................14
4.6 TERMINATION....................................................................................15
5. ASSIGNMENT..............................................................................................15
6. TERM AND TERMINATION....................................................................................15
6.1 EFFECTIVENESS..................................................................................15
6.2 TERM...........................................................................................15
6.3 EXTENSION......................................................................................15
6.4 TERMINATION....................................................................................15
6.5 EVENTS OF DEFAULT..............................................................................16
7. REPRESENTATIONS AND WARRANTIES..........................................................................16
7.1 REPRESENTATIONS AND WARRANTIES.................................................................16
8. CONFIDENTIALITY.........................................................................................17
9. DISPUTE RESOLUTION......................................................................................18
9.1 DISPUTES.......................................................................................18
9.2 NEGOTIATION....................................................................................19
9.3 ARBITRATION....................................................................................19
9.4 CONTINUING OBLIGATIONS.........................................................................20
10. MISCELLANEOUS...........................................................................................20
10.1 CONSTRUCTION...................................................................................20
ii
10.2 PAYMENT TERMS..................................................................................21
10.3 NOTICES........................................................................................21
10.4 GOVERNING LAW..................................................................................22
10.5 WAIVER OF IMMUNITY.............................................................................22
10.6 JUDGMENT CURRENCY..............................................................................22
10.7 CURRENCY EQUIVALENTS...........................................................................22
10.8 ENTIRE AGREEMENT...............................................................................22
10.9 CONFLICTS......................................................................................23
10.10 SEVERABILITY...................................................................................23
10.11 SURVIVAL.......................................................................................23
10.12 EXECUTION IN COUNTERPARTS......................................................................23
10.13 AMENDMENTS.....................................................................................23
10.14 WAIVERS........................................................................................23
10.15 NO PARTNERSHIP.................................................................................24
10.16 TAXES, ROYALTIES AND DUTIES....................................................................24
10.17 LIMITATIONS OF LIABILITY.......................................................................24
10.18 ENGLISH LANGUAGE...............................................................................24
SCHEDULES
1 Contract Tonnage and Estimate Shipping Schedule for Contract Year 1
2 Alumina Specifications
3 Representatives
4 Loading Procedures at Port of Loading
5 Standards for Alumina Analysis
ALUMINA SUPPLY AGREEMENT
THIS AGREEMENT entered into in the City of Sao Paulo, Brazil, is dated ____
December, 2004, with effect as of the Effective Date.
BETWEEN: NOVELIS DO BRASIL LTDA., a limited liability company incorporated
under the laws of Brazil (the "PURCHASER");
AND: ALCAN ALUMINA LTDA., a limited liability company incorporated under
the laws of Brazil (the "SUPPLIER").
RECITALS:
WHEREAS Alcan Inc. and Novelis Inc. 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 Inc.
(such agreement, as amended, restated or modified from time to time, the
"SEPARATION AGREEMENT").
WHEREAS the Separated Businesses (as defined in the Separation Agreement) held
by Novelis Inc. include the maintenance and operation of the Smelter (as defined
hereinafter) by the Purchaser (being a wholly owned Subsidiary of Novelis Inc.).
WHEREAS the Supplier wishes to supply, and the Purchaser wishes to purchase,
subject to the terms and conditions of this Agreement, Alumina (as defined
hereinafter) required by the Smelter (as defined hereinafter) in the quantities
agreed herein.
WHEREAS the Parties have entered into this Agreement 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 4.1.
"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
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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 Alumina Supply Agreement, including all of the
Schedules hereto.
"ALCAN GROUP" means Alcan Inc. and its Affiliates from time to time on
and after the Effective Date..
"ALUMINA" means xxxxx calcined metallurgical alumina as produced at the
alumina refineries of the Alumar Consortium or, at the Supplier's
option subject to Section 2.5(c), as produced by Alunorte.
"ALUMINUM PRICE" for any calendar month means the arithmetic average
LME 3-Month sellers price for Primary High Grade Aluminum, as published
in Metal Bulletin on each day during the three (3) calendar months
preceding such calendar month or as otherwise determined pursuant to
Section 2.6(b). For avoidance of doubt, the Aluminum Price for the
month of April will be based on aluminum prices published during the
months of January, February and March.
"ALUNORTE" means Alumina do Norte do Brasil S.A.
"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 PERCENTAGE" means:
(a) in respect of shipments made in each Contract Year from 2005
to 2007, ***%;
(b) in respect of shipments made in each Contract Year from 2008
to 2014, ***%; and
(c) in respect of shipments made in any subsequent Contract Year,
such percentage as may be agreed by the Parties at the time of
extension of the Term in accordance with Section 6.3.
"XXXX OF LADING DATE" means the date of the xxxx of lading representing
Alumina cargo to be delivered under this Agreement.
*** 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.
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"BUSINESS CONCERN" means any corporation, company, limited liability
company, partnership, joint venture, trust, unincorporated association
or any other form of association.
"BUSINESS DAY" means any day excluding (i) Saturday, Sunday and any
other day which, in Sao Paulo, Sao Paulo State, Brazil, is a legal
holiday or (ii) a day on which banks are authorized by Applicable Law
to close in Sao Paulo, Sao Paulo State, Brazil.
"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.
"CONFIDENTIAL INFORMATION" has the meaning set forth in Section 8.1.
"CONSENT" means any approval, consent, ratification, waiver or other
authorization.
"CONTRACT TONNAGE" has the meaning set forth in Section 2.3(b).
"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.
"DEFAULTING PARTY" has the meaning set forth in Section 6.5.
"DELIVERY PORTS" means:
(i) the Port of Aratu, State of Bahia, Brazil;
(ii) the Port of Salvador, State of Bahia, Brazil; and
(iii) such other port in Brazil as may be agreed by the
Parties from time to time.
"DISPUTE" has the meaning set forth in Section 9.1.
"DOLLARS" or "$" means the lawful currency of the United States of
America.
"EFFECTIVE DATE" means the date on which the Supplier becomes a
Subsidiary of Alcan Participacoes Ltda, which date is currently
expected to be on or before December 31, 2004.
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"ESCALATION NOTICE" has the meaning set out in Section 9.2.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.5.
"EXCHANGE RATE" means, on any day, for purposes of converting Dollar
amounts to Reais amounts, the selling currency rate for the sale of
Reais published by the Brazilian Central Bank (PTAX 800) on such day,
and, for purposes of converting Reais amounts to Dollars amounts, the
selling currency rate for the sale of Dollars published by the
Brazilian Central Bank (PTAX 800) on such day.
"EXCHANGE RATE DIFFERENTIAL" has the meaning set forth in Section
2.6(c).
"FOB" means, to the extent not inconsistent with the provisions of this
Agreement, FOB as defined in Incoterms 2000, published by the ICC,
Paris, France, as amended from time to time.
"FORCE MAJEURE" has the meaning set forth in Section 4.2.
"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.
"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.
"LOSSES" has the meaning set forth in Section 2.12(a).
"LME" means the London Metal Exchange.
"NOVELIS GROUP" means Novelis Inc. and its Affiliates 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.
"PORT OF LOADING" means the Alumar Consortium Port, located at Sao
Luiz, Maranhao State, Brazil or, if Section 2.5(b) applies, the port of
Complexo Portuario de Vila do Conde, located at Barcarena, Para State,
Brazil.
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"PRICE" has the meaning set forth in Section 2.6(a).
"PURCHASER" has the meaning set forth in the Preamble to this
Agreement.
"REAIS" or R$ means the lawful currency of Brazil.
"REFEREE" has the meaning set forth in Section 3.2(e).
"REPRESENTATIVES" means, with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants, advisors,
accountants or attorneys.
"SALES TAXES" means any sales, use, consumption, goods and services,
value added or similar tax, duty or charge imposed pursuant to
Applicable Law.
"SEPARATION AGREEMENT" has the meaning set out in the Preamble to this
Agreement.
"SMELTER" means a primary aluminum smelter located at Aratu in Brazil.
"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.
"TERM" has the meaning set forth in Section 6.2.
"TERMINATING PARTY" has the meaning set forth in Section 6.5.
"THIRD PARTY" means a Person that is not a Party to this Agreement,
other than a member of Alcan Group or a member of Novelis Group, and
that is not an Affiliate thereof.
"THIRD PARTY CLAIM" has the meaning set forth in the Separation
Agreement.
"TONNE" means 1,000 kilograms.
1.2 CURRENCY
All references to currency herein are to Dollars or Reais, as specified
in each case.
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.
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2. ALUMINA
2.1 SUPPLY AND SALE BY THE SUPPLIER
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 FOB the Port of
Loading the quantities of Alumina determined in accordance with this
Agreement.
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 FOB
the Port of Loading the quantities of Alumina determined in accordance
with this Agreement.
2.3 QUANTITIES OF ALUMINA
(a) The Purchaser and the Supplier agree that in each Contract
Year the Supplier shall sell hereunder, and the Purchaser
shall purchase hereunder a quantity of Alumina which is
greater than or equal to 85,500 Tonnes and less than or equal
to 126,000 Tonnes.
(b) The Contract Tonnage for the Contract Year 1, and the
estimated shipping schedule and quantities of Alumina to be
delivered in each shipment during Contract Year 1, are set out
in SCHEDULE 1 hereto.
2.4 SCHEDULING OF QUANTITIES
(a) On or before September 30 in each Contract Year, the Purchaser
shall submit to the Supplier a notice setting forth the annual
quantity of Alumina required by the Purchaser for the next
succeeding Contract Year (the "CONTRACT TONNAGE" for such
Contract Year), and an estimated shipping schedule identifying
the quantity of Alumina to be delivered by the Supplier in
each shipment during such Contract Year.
(b) On or before October 31 in each Contract Year, the Parties
shall agree on a shipment schedule for the next succeeding
Contract Year and on the quantities to be delivered in each
shipment. The Parties shall use Commercially Reasonable
Efforts to arrange for shipping schedules which are reasonably
evenly spread throughout each Contract Year.
(c) The Purchaser shall notify the Supplier of the initial lay day
period in which the Supplier's vessel will be presented for
loading, in respect of each shipment of Alumina scheduled
hereunder.
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(d) The Purchaser shall be responsible for all arrangements
required in connection with receipt of delivery and
transportation of the Alumina at the Port of Loading, in
accordance with the terms and conditions set forth in Schedule
4 hereto, which Schedule may be revised by the Parties from
time to time in order to take account of the terms and
condition for loading which may be in effect from time to time
at the Port of Loading.
(e) No later than 45 days prior to each of January 1, April 1,
July 1 and October 1 in each Contract Year, the Purchaser
shall submit to the Supplier an estimated shipping schedule
indicating the quantity and lay days for delivery for each
shipment of Alumina to be made hereunder in the next
succeeding 3 calendar months commencing on the next such
quarterly date, and identifying a 15 day window for each
shipment. The Supplier shall, within 10 days of receipt of
such shipping schedule from the Purchaser, confirm to the
Purchaser whether it agrees with it or if any modifications or
adjustments are required to be made to such shipping schedule.
(f) With respect to each shipment scheduled in accordance with
paragraph (e) above, no later than 30 days prior to the
commencement of lay days for such shipment, the Purchaser
shall provide a notice to the Supplier narrowing the delivery
window for such shipment to a 10 day period. In the event the
Purchaser does not provide such notice to the Supplier in such
time period, the Supplier may at its discretion reduce the
window for the lay days for such shipment to a 10 day period
at any time starting from the date which is 15 days prior to
the commencement of the lay days scheduled for such shipment.
2.5 SUPPLIER'S SHIPPING OBLIGATIONS
(a) The Supplier shall supply Alumina to the Purchaser in
accordance with the quantities and shipping schedules agreed
pursuant to Section 2.4, provided that the quantities of
Alumina supplied by the Supplier in each shipment may vary by
plus or minus 5% of the scheduled amount of such shipment,
subject to an adjustment to be made on the last shipment in
each Contract Year to ensure that the annual Contract Tonnage
amount is supplied.
(b) The Supplier shall supply Alumina sourced from production of
the Alumar Consortium, provided that if the Supplier's share
of production of the Alumar Consortium is not sufficient at
any time for the Supplier to comply with its supply
obligations hereunder and under any other supply agreements it
is party to which require supply be sourced from production of
the Alumar Consortium, the Supplier may supply Alumina sourced
from Alunorte provided such alternate supply does not result
in any increased costs to the Purchaser hereunder. With
respect to any Alumina supplied by the Supplier which is
sourced from Alunorte, the Price payable hereunder shall be
reduced by an amount commensurate to the increased
transportation and insurance costs incurred by the Purchaser
as a result
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of the Port of Loading being the port of the Complexo
Portuario de Vila do Conde, located at Barcarena, Para State,
Brazil.
(c) The Parties agree that the loading procedures at the Port of
Loading shall be in accordance with the rules set forth in
SCHEDULE 4 hereto.
2.6 PRICE
(a) The price payable by the Purchaser for each Tonne of Alumina
delivered pursuant to Sections 2.1 and 2.2 FOB the Port of
Loading (the "PRICE") shall be the Applicable Percentage of
the Aluminum Price applicable for the calendar month of the
Xxxx of Lading Date subject to Section 2.6(b).
(b) In the event Metal Bulletin ceases publication of the relevant
reference price for determining the Aluminum Price, the
Parties shall meet with a view to agreeing on an alternative
publication or, if applicable, reference price. In the event
the Parties fail to reach an agreement within sixty (60) days
of any Party having notified the others 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 appropriate amendment to the
terms of this Section 2.6. The decision of the Chairman or his
nominee shall be final and binding on the Parties.
(c) The Price shall be denominated in Dollars and converted to
Reais by reference to the Exchange Rate on the day preceding
the applicable Xxxx of Lading Date. The Price shall be
adjusted upwards or downwards on the date of payment, by
adding to (if positive) or subtracting from (if negative) the
price calculated pursuant to Section 2.6(a) the Exchange Rate
Differential (as defined below) applicable on the date of
payment. The "EXCHANGE RATE DIFFERENTIAL" in respect of any
payment, on the date of such payment, shall be the positive or
negative amount, in Reais, resulting by subtracting (i) the
amount of such payment, converted into Reais utilizing the
Exchange Rate on the date preceding the Xxxx of Lading Date,
from (ii) the amount of such payment converted into Reais
utilizing the Exchange Rate applicable on such date preceding
the date of payment.
2.7 QUALITY
(a) Alumina supplied under this Agreement shall comply with the
specifications set forth in SCHEDULE 2. Any Alumina which does
not comply with the specifications set out in SCHEDULE 2 shall
be removed by the Supplier at its cost unless the Purchaser
agrees to accept such Alumina. If the Purchaser does agree to
accept such Alumina, any additional costs incurred in
processing such Alumina as a direct result of its non-
compliance shall be reimbursed by the Supplier and losses
suffered by the Purchaser because less aluminum can be
produced per Tonne from such Alumina or the aluminum produced
from such Alumina is of a lower quality than aluminum that
would have been produced by the Smelter had the relevant
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Alumina been in compliance with the required specifications
shall be reimbursed by the Supplier to the Purchaser.
(b) If the specifications for Alumina supplied by the Supplier
change, the Supplier may propose that the specifications set
forth in SCHEDULE 2 be amended to reflect such changes. If the
revised specifications do not have a material adverse effect
on the quality of the aluminum produced by the Smelter and do
not result in increased costs for the processing of such
Alumina by the Purchaser at the Smelter, the Purchaser shall
not withhold its consent to such changed specifications.
(c) All warranties, conditions and other terms implied by statute
or common law are, to the fullest extent permitted by law,
excluded.
2.8 PAYMENT
(a) The Purchaser shall pay the Supplier, in Reais, in full for
each shipment of Alumina meeting the specifications set out in
SCHEDULE 2 in accordance with the Supplier's commercial
invoice:
(i) within sixty (60) days of the Xxxx of Lading
Date in respect of each supply of Alumina
hereunder made prior to December 31, 2007,
or
(ii) within thirty (30) days of the Xxxx of
Lading Date in respect of each supply of
Alumina made from and after January 1, 2008;
provided, in each case, that the invoice is received by the
Purchaser at least seven (7) days before payment is due. If
the invoice is not received at least seven (7) days before the
date on which payment is due, the date for payment of an
amount due shall be extended to provide seven (7) days between
the date of receipt of the invoice and the due date.
(b) If the Purchaser believes that a shipment of Alumina does not
meet the specifications set out in SCHEDULE 2 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, or a Referee judges, that the Alumina
complies with the specifications set out in SCHEDULE 2, the
Purchaser shall pay the invoice and, if payment is overdue
pursuant to Section 2.8(a), interest in accordance with
Section 2.8(d).
(c) In the event the Supplier is required to make payments to the
Purchaser pursuant to Section 2.7, or 2.12, the Supplier shall
pay to the Purchaser, based on an invoice delivered by the
Purchaser setting out in detail the basis for such payment,
such compensation or damages due to the Purchaser, in full
within thirty (30) days of the day on which the Supplier
receives such invoice.
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(d) If any payment required to be made pursuant to Section 2.8 (a)
or (c) above is overdue, the full amount shall bear interest
at a rate per annum equal to 6%, calculated for 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.
For the purpose of the Interest Act (Canada) and disclosure
thereunder, whenever interest to be paid hereunder is to be
calculated on the basis of a year of 360 days or any other
period of time that is less than a calendar year, the yearly
rate of interest to which the rate determined pursuant to such
calculation is equivalent is the rate so determined multiplied
by the actual number of days in the calendar year in which the
same is to be ascertained and divided by either 360 or such
other period of time, as the case may be.
(e) All amounts paid to the Supplier or the Purchaser hereunder
shall be paid in Reais by wire transfer to the account
specified by the Supplier or Purchaser, as applicable.
2.9 SETOFF
Each Party shall be entitled to set-off against any amounts due to
another Party hereunder any amounts due to it from such other Party
hereunder. Such right of set-off shall not extend to amounts owed to a
Party by the other Party under any other agreement. Any amount by which
any Party's obligation to make a payment under this Agreement is
reduced shall be treated as discharging the obligation of the other
Party to the extent of the amount set-off. Notwithstanding any set-off,
any amount in respect of Sales Taxes required to be remitted by one
Party to the other Party pursuant to this Agreement shall be remitted
in full as if no set-off had occurred.
2.10 DELIVERY
Alumina shall be delivered FOB the Port of Loading. The delivery of
Alumina pursuant to this Section 2.10 shall be governed by Incoterms
2000, as amended from time to time.
2.11 TITLE AND RISK OF LOSS
Title and risk of damage to, and loss of, Alumina shall pass to the
Purchaser as the Alumina passes the ship's rail at the Port of Loading.
2.12 FAILURE TO SUPPLY
(a) In the event the Supplier fails to supply the Alumina required
for the Smelter in accordance with the shipping schedules
agreed pursuant to Section 2.4(b), for reasons other than
Force Majeure and as a result the Purchaser curtails or stops
the production of aluminum at the Smelter, the Supplier shall
indemnify the Purchaser from and against all costs, claims,
demands, liabilities, expenses, damages or losses (including
without limitation legal and other professional costs
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and expenses) (the "LOSSES") arising out of or in connection
with the curtailment or stoppage of production at the Smelter.
The Purchaser shall use its Commercially Reasonable Efforts to
mitigate such Losses, including, without limitation, through
acquisition of alumina from alternative sources.
(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 which is subject to any indemnification or
reimbursement pursuant to this Agreement.
3. WEIGHING, SAMPLING AND ANALYSIS
3.1 WEIGHING
(a) The weight of each shipment shall be the xxxx of lading weight
determined by draft survey carried out by a qualified and
competent marine surveyor appointed by the Supplier and using
the "Ship's Displacement" method at the time of the vessel's
loading. The draft survey report shall be conclusive evidence
of the weight of Alumina delivered. Each of the Purchaser and
the Supplier shall, at its own risk and expense, have the
right to have a representative from the list set out in
SCHEDULE 3 present at such weight determination. Such SCHEDULE
3 shall be updated upon request of either of the Purchaser and
the Supplier with the consent of such other Party, such
consent not to be unreasonably withheld or delayed.
(b) In the event the weight of Alumina determined at the Delivery
Port differs from the weight determined at the Port of Loading
by no more or no less than 0.5%, such difference shall not be
taken into consideration for any purpose under this Agreement.
Should the difference in weight be greater than or less than
0.5%, the Parties shall designate for purposes of the next
shipment hereunder an independent and duly registered naval
inspector to be agreed on by the Parties. The determination of
weight made by such independent inspector shall be definitive
in respect of each shipment thereafter. The Purchaser and
Supplier shall share in equal proportion the expenses related
to the retainer of such inspector and shall share on an equal
basis the cost effect of the difference in the weight of the
original shipment of Alumina which was less than or greater
than 0.5% and gave rise to the retainer of such inspector, to
the extent of the cost relating to the Alumina over and above
the 0.5% threshold.
3.2 SAMPLING AND ANALYSIS
(a) The Supplier shall arrange for three (3) representative
samples to determine the quality of each shipment of Alumina,
to be taken during the loading operation according to the
standard methods set out in SCHEDULE 5, applied at both the
Port of Loading and the Delivery Port. Each sample shall be
placed in a sealed container and duly identified. Within
twenty four (24) hours of the samples being taken, the
Supplier shall arrange for one sample to be air freighted to
the Purchaser for analysis and of the two remaining samples,
one sample shall be
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retained by the Supplier for the Supplier's analysis (the
results of which analysis shall be recorded in a certificate
of analysis) according to the standard methods set out in
SCHEDULE 5, applied at both the Port of Loading and the
Delivery Port, and one sample shall be retained in its sealed
container by the Supplier for a period of at least ninety (90)
days in case it is required to be sent to a Referee for
analysis.
(b) The results of the analysis performed at the Supplier's
laboratories, as recorded in the certificate of analysis,
shall be forwarded to the Purchaser promptly, and in any event
within five (5) days of the Xxxx of Lading Date.
(c) If, according to such certificate of analysis, the Alumina
being shipped does not comply with the specifications set out
in SCHEDULE 2, the Purchaser may, within five (5) days of
receipt of such certificate of analysis, reject the shipment
to which it relates by giving notice to the Supplier of such
rejection. If the Purchaser rejects a shipment pursuant to
this Section 3.2 (c), the Supplier shall use Commercially
Reasonable Efforts to deliver a replacement shipment as soon
as practicable.
(d) If, according to such certificate of analysis, the Alumina
being shipped complies with the specifications set out in
SCHEDULE 2, the Purchaser shall have five (5) days from the
receipt of the sample to notify the Supplier if it disagrees
with the certificate of analysis and believes that the Alumina
delivered does not conform to the specifications set out in
SCHEDULE 2 by delivering a "Notice of Objection" setting out
the extent of the non-conformity and including in such notice
the certificate of analysis on which it relies. If the
Purchaser does not notify the Supplier within this period of
time, the entire shipment shall be deemed to be conforming
Alumina. In the event the Purchaser has notified the Supplier
within this period of time, the Supplier will advise the
Purchaser, within five (5) days of its receipt of the
Purchaser's notice as to whether or not the Supplier agrees
with the Purchaser's analysis. If the Supplier does not notify
the Purchaser within the five (5) day period, it shall be
deemed to have agreed with the Purchaser's analysis and the
Purchaser shall be deemed to have received the Supplier's
notice so agreeing on the last day of the five (5) day period.
(e) In the event that the Supplier notifies the Purchaser pursuant
to Section 3.2 (d) that it does not agree with the Purchaser's
analysis, then the third sample shall be referred to a referee
(the "REFEREE") who shall be selected by agreement between the
Parties during the first three months of the Term of this
Agreement. In the event that the Referee whose turn it is to
analyse the sample is unable to do so, the sample shall be
sent to the next Referee on the list. In the event that any of
the above Referees should no longer be available to act as a
referee, then the Purchaser and the Supplier shall agree upon
a replacement. If the Purchaser and the Supplier are unable to
agree upon a replacement within three (3) months of them
discovering that such Referee is unable to act as a referee,
then a replacement referee shall be appointed by the Chairman
of the LME in Xxxxxx,
- 00 -
Xxxxxxx or his nominee. The decision of the Chairman or his
nominee shall be final and binding on the Parties.
(f) The Referee shall complete its analysis within a further
period of five (5) days and the results of the analysis shall
be definitive and binding upon all Parties. The quality of the
Alumina contained in the relevant shipment shall be deemed to
be the same as that of the Referee's sample analysis. If,
pursuant to the Referee's analysis, the Alumina complies with
the specifications set out in SCHEDULE 2, the cost of the
Referee's analysis shall be borne by the Purchaser. If,
pursuant to the Referee's analysis, the Alumina does not
comply with the specifications set out in SCHEDULE 2, the cost
of the Referee's analysis shall be borne by the Supplier.
(g) The Purchaser shall use its Commercially Reasonable Efforts to
process any Alumina not conforming to the specifications set
out in SCHEDULE 2, and the Supplier shall compensate the
Purchaser for any additional processing costs and loss of
production incurred by the Purchaser as a result of processing
of non-conforming Alumina. In the event the Purchaser, at its
sole discretion, determines that such processing of non-
conforming Alumina is not appropriate, the Purchaser shall
have the right to reject such non-conforming Alumina and to
require the Supplier to remove any such non-conforming Alumina
and replace the same with another shipment of Alumina meeting
the specifications set out in SCHEDULE 2.
4. FORCE MAJEURE
4.1 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).
4.2 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
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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
the Supplier, its Affiliates or its Subsidiaries purchases bauxite to
be converted into Alumina, or tolls or has bauxite tolled into Alumina,
or purchases, trades or swaps Alumina to be sold hereunder, and any
declaration of force majeure by the plant producing the Alumina, 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.
4.3 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 its 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.
4.4 PRO RATA ALLOCATION
If the Supplier's supply of any Alumina 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 Alumina, if any, among any or all of its existing customers
whether or not under contract, 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, Alumina of
similar quality in substitution for the Alumina 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.
4.5 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 Alumina 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
alumina pursuant to the terms above.
In the absence of any agreement by the Parties, failure to deliver or
accept delivery of Alumina which is excused by or results from the
operation of the foregoing provisions of this Section 4 shall not
extend the Term of this Agreement and the quantities of Alumina
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to be sold and purchased under this Agreement shall be reduced by the
quantities affected by such failure.
4.6 TERMINATION
(a) If an event of Force Majeure where the Affected Party is the
Purchaser shall continue for more than ninety (90) days, 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 ninety (90) days, then
the Purchaser shall have the right to terminate this
Agreement.
5. ASSIGNMENT
No Party shall assign or transfer this Agreement, in whole or in part,
or any interest or obligation arising under this Agreement, without the
prior written consent of the other Party.
6. TERM AND TERMINATION
6.1 EFFECTIVENESS
This Agreement shall come into effect upon the Effective Date.
6.2 TERM
The term of this Agreement (the "TERM") shall be from the Effective
Date until the date which is the ten (10) year anniversary thereof,
unless terminated earlier or extended pursuant to the provisions of
this Agreement.
6.3 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 year on terms to be mutually
agreed. If no Agreement is reached between the Parties within six (6)
months of the request for an extension, the Agreement shall terminate
upon expiry of the Term.
6.4 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 4.6 as a result of Force Majeure; or
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(d) upon the occurrence of an Event of Default, in accordance with
Section 6.5.
6.5 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 sixty (60) 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) in case of the Purchaser, Novelis Inc., or in case of the
Supplier, Alcan Inc., breaches any representation or warranty,
or fails to perform or comply with any covenant, provision,
undertaking or obligation in or of the Separation Agreement;
(d) 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
(e) proceedings are commenced by or against such Party under the
laws of any jurisdiction relating to reorganization,
arrangement or compromise.
7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to and in favour of the other Party
as follows and acknowledges that the other Party is relying upon such
representations and warranties in connection with the matters
contemplated by this Agreement:
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(a) it is duly incorporated and organized and is validly existing
under the laws of its jurisdiction of incorporation and has
the corporate power and authority to own its assets and to
conduct its businesses and to perform its obligations
hereunder;
(b) the execution and delivery of this Agreement by it and the
completion by it of the transactions contemplated herein, do
not and will not result in the breach of, or violate any term
or provision of, its articles or by-laws;
(c) it is not subject to any outstanding injunction, judgment or
order of any Governmental Authority which would prevent or
materially delay the transactions contemplated by this
Agreement; there are no civil, criminal or administrative
claims, actions, suits, demands, proceedings, hearings or
investigations pending or, to the Party's knowledge,
threatened, at law, in equity or otherwise, in, before, or by,
any Governmental Authority which (if successful) would prevent
or materially delay the consummation of the transactions
contemplated by this Agreement;
(d) no dissolution, winding up, bankruptcy, liquidation or similar
proceeding has been commenced, or is pending or proposed, in
respect of it; and
(e) the execution and delivery of this Agreement the completion of
the transactions contemplated herein have been duly approved
by its board of directors, and this Agreement constitutes
legal, valid and binding obligations of such Party enforceable
against it in accordance with its terms, subject to
legislation relating to bankruptcy, insolvency, reorganization
and other similar legislation of general application and other
laws affecting the enforcement of creditors' rights generally,
to general principles of equity and limitations upon the
enforcement of indemnification for fines or penalties imposed
by law and to the discretionary power of the courts as regards
specific performance or injunctive relief.
8. CONFIDENTIALITY
8.1 Subject to Section 8.3, each of the Parties shall hold, and shall cause
its respective Affiliates (whether now an Affiliate or hereafter
becoming an Affiliate) and its Representatives to hold, in strict
confidence, with at least the same degree of care that applies to its
own confidential and proprietary information, all confidential and
proprietary information concerning the other Party and its Affiliates
(whether now an Affiliate or hereafter becoming an Affiliate) that is
either in its possession or is furnished by such other Party or
Affiliates (whether now an Affiliate or hereafter becoming an
Affiliate) of any such Party or its respective Representatives at any
time pursuant to this Agreement or the transactions contemplated hereby
(any such information referred to herein as "CONFIDENTIAL
INFORMATION"), and shall not use any such Confidential Information
other than for such purposes as shall be expressly permitted hereunder.
Notwithstanding the foregoing, Confidential Information shall not
include information that is or was:
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(i) in the public domain through no fault of such Party or any of
its Affiliates (whether now an Affiliate or hereafter becoming
an Affiliate) or any of its respective Representatives,
(ii) lawfully acquired by such Party or any of its Affiliates
(whether now an Affiliate or hereafter becoming an Affiliate),
from a Third Party not bound by a confidentiality obligation,
or
(iii) independently generated or developed by Persons who do not
have access to, or descriptions of, any such confidential or
proprietary information of the other Party (or any of its
Affiliates (whether now an Affiliate or hereafter becoming an
Affiliate)).
8.2 Each Party agrees not to release or disclose, or permit to be released
or disclosed, any Confidential Information to any other Person, except
its Representatives who need to know such Confidential Information (who
shall be advised of their obligations hereunder with respect to such
Confidential Information), except in compliance with Section 8.3.
8.3 In the event that any Party or any of its Affiliates (whether now an
Affiliate or hereafter becoming an Affiliate) either determines on the
advice of its counsel that it is required to disclose any Confidential
Information pursuant to Applicable Law or receives any demand under
lawful process or from any Governmental Authority to disclose or
provide Confidential Information of the other Party (or any Affiliate
(whether now an Affiliate or hereafter becoming an Affiliate) of such
other Party), such Party shall, to the extent permitted by Applicable
Law, notify the other Party prior to it or its Affiliates (whether now
an Affiliate or hereafter becoming an Affiliate) disclosing or
providing such Confidential Information, and shall use its Commercially
Reasonable Efforts to cooperate at the expense of the requesting Party
in seeking any reasonable protective arrangements requested by such
other Party. Subject to the foregoing, the Person that receives such
request may thereafter disclose or provide such Confidential
Information to the extent (but only to the extent) required by such
Applicable Law (as so advised by legal counsel) or by lawful process or
by such Governmental Authority and shall promptly provide the Person
that receives such request with a copy of the Confidential Information
so disclosed, in the same form and format as disclosed, together with a
list of all Persons to whom such Confidential Information was
disclosed.
9. DISPUTE RESOLUTION
9.1 DISPUTES
The provisions of this Section 9 shall govern all disputes,
controversies or claims (whether arising in contract, delict, tort or
otherwise) 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 (a "DISPUTE").
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9.2 NEGOTIATION
The Parties hereby undertake to attempt in good faith to resolve any
Dispute by way of negotiation between senior executives of the Parties
who have authority to settle such Dispute. In furtherance of the
foregoing, any Party may initiate the negotiation by way of a notice
(an "ESCALATION NOTICE") demanding an in-person meeting involving
representatives of the Parties at a senior level of management of the
Parties (or if the Parties agree, of the appropriate strategic business
unit or division within such Party). A copy of any Escalation Notice
shall be given to the Chief Legal Officer of each Party (which copy
shall state that it is an Escalation Notice pursuant to this
Agreement). Any agenda, location or procedures for such negotiation may
be established by the Parties from time to time; provided, however,
that the negotiations shall be completed within thirty (30) days of the
date of the Escalation Notice or within such longer period as the
Parties may agree in writing prior to the expiration of the initial
thirty-day period.
9.3 ARBITRATION
(a) Any Dispute which has not been resolved by negotiation as
provided herein within thirty (30) days of the date of the
Escalation Notice or such extended period as may be agreed to
by the Parties, shall be referred to and finally resolved by
arbitration in accordance with the Arbitration Rules of the
ICC then in force.
(b) The arbitral tribunal shall consist of three arbitrators. The
place of arbitration shall be Miami, Florida, United States of
America. The language of the arbitration and all
communications in respect thereof shall be in English.
(c) The costs of the arbitration shall be fixed by the arbitral
tribunal and shall be borne by the unsuccessful Party, unless
the arbitral tribunal, in its discretion, determines a
different apportionment, taking all relevant circumstances
into account. The costs of arbitration include: (i) the fees
and disbursements of the arbitrators, (ii) reasonable travel
and other expenses of witnesses; (iii) the reasonable fees and
expenses of expert witnesses; and (iv) the costs of legal
representation and assistance, to the extent that the arbitral
tribunal determines that the amount of such costs is
reasonable.
(d) The arbitral tribunal shall endeavour to issue its award
within sixty (60) days of the last hearing of the substantive
issues in dispute between the Parties; however, the arbitral
tribunal shall not lose jurisdiction if it fails to respect
this delay. The arbitral award shall be final and binding.
(e) Neither the Parties (including their auditors and insurers)
nor their counsel and any Person necessary to the conduct of
the arbitration nor the arbitrators shall disclose the
existence, content (including submissions and any evidence or
documents presented or exchanged), or results of any
arbitration hereunder without the prior written consent of the
Parties, except as required by Applicable Law or the
applicable rules of a stock exchange.
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9.4 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
In this Agreement and in the Schedules, unless a clear contrary
intention appears:
(a) the singular number includes the plural number and vice versa;
(b) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and
assigns are not prohibited by this Agreement, and reference to
a Person in a particular capacity excludes such Person in any
other capacity or individually;
(c) reference to any gender includes each other gender;
(d) reference to any agreement, document or instrument means such
agreement, document or instrument as amended, modified,
supplemented or restated and in effect from time to time in
accordance with the terms thereof subject to compliance with
the requirements set forth herein;
(e) reference to any Applicable Law means such Applicable Law as
amended, modified, codified, replaced or re-enacted, in whole
or in part, and in effect from time to time, including rules
and regulations promulgated thereunder, and reference to any
section or other provision of any Applicable Law means that
provision of such Applicable Law from time to time in effect
and constituting the substantive amendment, modification,
codification, replacement or re-enactment of such section or
other provision;
(f) "herein", "hereby", "hereunder," "hereof," "hereto," and words
of similar import shall be deemed references to this Agreement
as a whole and not to any particular Article, Section or other
provision hereof;
(g) "including" (and with correlative meaning "include") means
including without limiting the generality of any description
preceding such term;
(h) the Table of Contents and headings are for convenience of
reference only and shall not affect the construction or
interpretation of this Agreement;
(i) with respect to the determination of any period of time,
"from" means "from and including" and "to" means "to but
excluding"; and
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(j) references to documents, instruments or agreements shall be
deemed to refer as well to all addenda, exhibits, schedules or
amendments thereto.
10.2 PAYMENT TERMS
Any amount to be paid or reimbursed by one Party to the other under
this Agreement, save as expressly provided in Sections 2 and 3, shall
be paid or reimbursed hereunder within sixty (60) days (in respect of
any amount invoiced prior to January 1, 2008) or thirty (30) days (in
respect of any amount invoiced on or after January 1, 2008) after
presentation of an invoice or a written demand therefor and setting
forth, or accompanied by, reasonable documentation or reasonable
explanation supporting such amount.
10.3 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 do Brasil Ltda.
Xxx xxx Xxxxxx, x/xx., Xxxxxxxx, Xxxxx Xxxxx
XXX 00000-000
Fax: x00 (00) 000-0000
Attention: Mr. Josival Gonzaga Xxxxx
IF TO THE SUPPLIER, TO:
ALCAN ALUMINA LTDA.
Xxxxxxx XX 000, xx 00, x.(xxxxxx)0, Xxxxxxxxx
CEP 00000-000, Xxx Xxxx, Xxxxxxxx
Fax: x00 (00) 000-0000
Attention: Xx. Xxxxxx Xxxxxxxx Romana
Any Party may, by notice to the other Party, change the address or fax
number to which such notices are to be given.
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10.4 GOVERNING LAW
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of Brazil, irrespective of conflict of laws
principles under Brazil law, as to all matters, including matters of
validity, construction, effect, enforceability, performance and
remedies.
10.5 WAIVER OF IMMUNITY
To the extent that a Party or any of its revenues, assets or properties
shall be entitled, with respect to any proceeding relating to
enforcement of this Agreement or any award thereunder at any time
brought against such Party or any of its revenues, assets or
properties, to any sovereign or other immunity from suit, from
jurisdiction, from attachment prior to judgment, from attachment in aid
of execution of judgment, from execution of a judgment or from any
other legal or judicial process or remedy, and to the extent that in
any jurisdiction there shall be attributed such an immunity, such Party
irrevocably agrees not to claim and irrevocably waives such immunity to
the fullest extent permitted by the laws of such jurisdiction.
10.6 JUDGMENT CURRENCY
The obligations of a Party to make payments hereunder shall not be
discharged by an amount paid in any currency other than Reais, whether
pursuant to a court judgment or arbitral award or otherwise, to the
extent that the amount so paid upon conversion to Reais and transferred
to an account indicated by the Party to receive such funds under normal
banking procedures does not yield the amount of Reais 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 Reais, any difference between the sum
originally due in Reais and the amount of Reais received upon any such
conversion and transfer.
10.7 CURRENCY EQUIVALENTS
For purposes of this Agreement, calculation of Reais equivalents on any
day shall be based on the Exchange Rate on the day preceding such day.
10.8 ENTIRE AGREEMENT
This Agreement and the exhibits, schedules, annexes and appendices
hereto and the specific agreements contemplated herein, 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.
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10.9 CONFLICTS
In case of any conflict or inconsistency between this Agreement and the
Separation Agreement, this Agreement shall prevail.
10.10 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.
10.11 SURVIVAL
The obligations of the Parties under Sections 2.6, 2.7, 2.8, 8, 9, 10.4
and 10.11 and liability for the breach of any obligation contained
herein shall survive the expiration or earlier termination of this
Agreement.
10.12 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.
10.13 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.
10.14 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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10.15 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.
10.16 TAXES, ROYALTIES AND DUTIES
All royalties, taxes and duties imposed or levied on any Alumina
delivered hereunder shall be for the account of and paid by the
Supplier to the point where the Alumina has been delivered FOB the Port
of Loading. All royalties, taxes and duties imposed or levied on the
Alumina after such delivery shall be for the account of and paid by the
Purchaser.
10.17 LIMITATIONS OF LIABILITY
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 Party's 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).
10.18 ENGLISH LANGUAGE
All documents to be furnished or communications to be made or given
under this Agreement made in connection with any Dispute shall be in
the English language or, if in another language, shall be accompanied
by a translation into English certified by the Party making or
furnishing such documents or communications, which translation shall be
the governing version between the Parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the Parties hereto have caused this Alumina Supply Agreement
to be executed by their duly authorized representatives.
NOVELIS DO BRASIL LTDA.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
ALCAN ALUMINA LTDA.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
