EXHIBIT 10.31
MASTER METAL HEDGING AGREEMENT
between
ALCAN INC.
and
NOVELIS INC.
DATED DECEMBER o, 2004, WITH EFFECT AS OF THE EFFECTIVE DATE
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION...........................................1
2. CONFIRMATIONS............................................................5
3. CALCULATION OF SETTLEMENT AMOUNTS........................................6
4. PAYMENT..................................................................6
5. NOVELIS OBLIGATIONS......................................................7
6. ALCAN'S OBLIGATIONS......................................................7
7. VOLUME LIMITS AND MARKET DISRUPTION......................................8
8. ASSIGNMENT...............................................................9
9. TERMINATION..............................................................9
10. DISPUTE RESOLUTION.......................................................9
11. MISCELLANEOUS...........................................................10
THIS MASTER METAL HEDGING AGREEMENT entered into in the City of Montreal,
Province of Quebec, is dated December o, 2004, with effect as of the Effective
Date.
BETWEEN: ALCAN INC., a corporation organized under the Canada Business
Corporations Act ("ALCAN");
AND: NOVELIS INC., a corporation incorporated under the Canada Business
Corporations Act ("NOVELIS").
RECITALS:
WHEREAS Alcan and Novelis have entered into a Separation Agreement pursuant to
which the Parties (as defined hereinafter) 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").
WHEREAS the Separated Businesses held by Novelis include the manufacture of
rolled aluminum.
WHEREAS Alcan supplies to Novelis and other members of Novelis Group (as defined
hereinafter) aluminum pursuant to certain Metal Supply Agreements constituting
Ancillary Agreements to the Separation Agreement.
WHEREAS certain third-party customers of Novelis may request fixed price
arrangements from time to time for the purchase of aluminum products from
Novelis.
WHEREAS Novelis wishes to hedge these price arrangements with third party
customers from fluctuations in the price of aluminum through fixed forward
pricing arrangements.
AND WHEREAS, Alcan is prepared to provide hedging services to Novelis in
accordance with the terms and conditions of this Agreement in respect of
Transactions (as defined herein), with Alcan and Novelis acting both as
principals under such Transactions.
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:
"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 Master Metal Hedging Agreement, including all of
the Schedules and Exhibits hereto.
"AGREEMENT EFFECTIVE DATE" means the effective date of the Separation
Agreement as defined therein.
"ALCAN GROUP" means Alcan and its Subsidiaries from time to time after
the Effective Time.
"APPLICABLE LAW" means any applicable law, statute, rule or regulation
of any Governmental Authority or any outstanding order, judgment,
injunction, ruling or decree by any Governmental Authority.
"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 the City of Montreal (Canada) or in the City of New
York (United States) is a legal holiday or (ii) a day on which banks
are required or authorized by Applicable Law to close in the City of
Montreal (Canada) or in the City of New York (United States).
"BUYER" means Novelis Inc. or such other member of Novelis Group as may
be authorized from time to time to enter into Transactions as Buyer.
"CET" means Central European 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 envisaged by 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.
"COMMODITY" shall mean aluminum metal.
"CONFIRMATION" means a written notice provided by Alcan to Novelis,
specifying the information indicated in Section 2, as applicable.
"CONSENT" means any approval, consent, ratification, waiver or other
authorization.
"DEFAULTING PARTY" has the meaning set forth in Section 9.1.
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"DETERMINATION DATE" shall mean the last date of the relevant
Determination Period, being the date on which the Settlement Amount for
such Determination Period is calculated.
"DETERMINATION PERIOD" shall mean, in respect of any Transaction (i)
for the first Determination Period, the period from and including the
Effective Date to and including the first Determination Date, and (II)
for each subsequent Determination Period, the period from but excluding
the Determination Date of the immediately prior Determination Period,
to and including the next subsequent Determination Date, and the last
day of the final Determination Period shall be the Termination Date,
such Determination Period or Periods being defined in the Confirmation.
"DOLLARS" or "$" means, except where otherwise expressly indicated, the
lawful currency of the United States of America.
"EFFECTIVE DATE" shall mean the date specified as such in the
Confirmation by the Parties, which date is the first date of the first
Determination Period.
"EFFECTIVE TIME" means 12:01 a.m. Montreal time on the Effective Date.
"EST" means Eastern Standard Time or, as applicable, Eastern Daylight
Savings Time.
"EVENT OF DEFAULT" has the meaning set forth in Section 9.1.
"FIXED PRICE", in respect of any Transaction, has the meaning specified
in the relevant Confirmation.
"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.
"LIABILITIES" has the meaning set forth in the Separation Agreement.
"LME" means the London Metal Exchange.
"MARKET DISRUPTION EVENT" has the meaning specified in Section 7.4 (c)
of the 2000 Supplement to the 1993 Commodity Derivatives Definitions
published in 2000 by the International Swaps and Derivatives
Association, Inc..
"NOVELIS GROUP" means Novelis and its Subsidiaries from time to time
after the Effective Time.
"OHS SYSTEM" means the on-line hedging system used by Novelis.
"PARTY" means each of Alcan and Novelis, as a party to this Agreement
and "PARTIES" means both of them.
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"PERSON" means any individual, Business Concern or Governmental
Authority.
"PRICE", in respect of any Transaction, has the meaning specified in
the relevant Confirmation.
"QUANTITY", in respect of any Transaction, has the meaning specified in
the relevant Confirmation.
"REFERENCE MARKET-MAKERS" means three leading dealers in the market of
the Commodity selected by the Parties in good faith.
"REFERENCE PRICE", in respect of any Transaction, has the meaning
specified in the relevant Confirmation.
"REPLACEMENT TRANSACTION" has the meaning set forth in Section 7.3.
"SELLER" means Alcan Inc.
"SEPARATION AGREEMENT" has the meaning set out in the Preamble to this
Agreement.
"SETTLEMENT AMOUNT" of any Swap shall have the meaning attributed to it
in Section 3.2.
"SETTLEMENT DATE" with respect to Swaps, shall mean the second Business
Day next succeeding the last Trading Day of a Determination Period.
"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" means Alcan Inc.
"SWAP" means a Commodity swap based on fixed and floating prices using
a Reference Price or index for an agreed Quantity of a Commodity.
"TERM" has the meaning set forth in Section 1.4.
"TERMINATING PARTY" has the meaning set forth in Section 9.1.
"TERMINATION DATE", in respect of any Transaction, has the meaning
specified in the relevant Confirmation.
"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 of this Group.
"THIRD PARTY CLAIM" has the meaning set forth in the Separation
Agreement.
"TRADING DAY" means each day during a Determination Period for which a
Reference Price would, under normal circumstances, be determinable.
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"TRANSACTION" means any Swap between Buyer and Seller entered into
pursuant to this Agreement.
"TRANSACTION DATE" means the date specified as such in the Confirmation
by the Parties, which date is the date on which the Parties enter into
a Transaction.
1.2 Currency. Unless specified otherwise, all references to currency herein
and in any Confirmations are to US Dollars.
1.3 Effectiveness. This Agreement shall come into full force and effect on
the Agreement Effective Date.
1.4 Term. The term of this Agreement (the "TERM") shall commence on the
Agreement Effective Date and shall expire on ***. This Agreement shall
remain in effect in respect of Transactions entered into on or prior to
***, provided that no Transaction hereunder shall have a Determination
Date later than ***.
1.5 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 7.2 as a result of a Market Disruption
Event; or
(d) upon the occurrence of an Event of Default, in accordance with
Section 9.
2. CONFIRMATIONS
2.1 Pursuant to a request from Novelis or another authorized member of
Novelis Group to Alcan through the OHS System, by telephone, fax or
e-mail, the Parties may enter into Transactions from time to time in
accordance with the provisions of this Agreement.
2.2 The specific terms and conditions of each Transaction shall be set
forth in a Confirmation. Each Confirmation shall be delivered by Alcan
to the relevant member of Novelis Group no later than the end of the
first Business Day following the Transaction Date in respect of each
Transaction, and shall be deemed conclusive unless objected to in
writing by the relevant member of Novelis Group within two Business
Days of the date of such Confirmation. The Confirmation, together with
the terms and conditions of this Agreement, shall constitute the terms
and conditions of such Transaction. In the event of a conflict between
a Confirmation and this Agreement, the terms of the Confirmation shall
govern the Transaction.
2.3 For each Swap, the relevant Confirmation shall specify:
(a) the Buyer and the Seller;
(b) the Commodity;
*** 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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(c) the Quantity;
(d) the Fixed Price;
(e) the Reference Price;
(f) the Transaction Date;
(g) the Determination Period or Periods;
(h) the Termination Date; and
(i) any other specific terms as agreed by the Parties.
2.4 Novelis may, from time to time, by notice to Alcan, propose that one or
more other members of Novelis Group be authorized by Alcan to enter
into Transactions as Buyer hereunder. Alcan shall not unreasonably
withhold its authorization, which authorization shall be deemed given
if Alcan issues a Confirmation naming such member of Novelis Group as
Buyer. Novelis hereby unconditionally guarantees to Alcan the full and
timely performance of all obligations of each other member of Novelis
Group under all Transactions.
2.5 There shall be no obligation for Alcan to enter into any Transactions
with Novelis other than Swaps, nor shall there be any obligation for
Alcan to deal in any Commodity other than aluminum metal.
3. CALCULATION OF SETTLEMENT AMOUNTS
3.1 If the Fixed Price exceeds the Reference Price in a Determination
Period, the Buyer shall pay to the Seller the Settlement Amount for
such Determination Period and if the Reference Price exceeds the Fixed
Price in a Determination Period, the Seller shall pay to the Buyer the
Settlement Amount for such Determination Period.
3.2 The Settlement Amount for each Determination Period shall be equal to
the product of (i) the difference between the Fixed Price and the
Reference Price on the relevant Determination Date and (ii) the
Quantity. The Settlement Amount for each Determination Period shall be
paid to the Seller or the Buyer, as the case may be, on the Settlement
Date with respect to such Determination Period.
4. PAYMENT
4.1 Novelis shall pay to Alcan an administrative fee in the amount of US$1
for each tonne of Commodity referenced in a Confirmation. Such
administrative fee shall be paid on the second Business Day in each
calendar month in respect of all Confirmations issued during the
immediately preceding calendar month.
4.2 All payments under Section 3.2, and all payments to Alcan under Section
4.1, shall be paid to the recipient by wire transfer to the account
specified by notice from the recipient to the other Party from time to
time.
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4.3 If (i) the Payment Dates for two or more Transactions shall fall on the
same day and (ii) each Party is required to pay an amount under such
Transactions, then such amounts with respect to each Party shall be
aggregated and the Party obligated to pay the larger aggregate amount
will be obligated to pay on the Payment Date to the other Party the
excess of the larger aggregate amount over the smaller aggregate
amount.
5. NOVELIS OBLIGATIONS
5.1 Novelis hereby undertakes to obtain quotations for services hereunder
from Alcan prior to entering into forward price agreements with
third-party customers.
5.2 Novelis hereby undertakes to enter into Transactions hereunder, and to
cause each relevant member of Novelis Group to enter into Transactions
hereunder, only as principal and pursuant to back-to-back agreements
with third-party customers. In no event shall Novelis or any other
member of Novelis Group enter into Transactions hereunder for
speculative purposes.
5.3 Novelis undertakes to give Alcan access to the OHS System as and when
requested by Alcan.
5.4 Novelis hereby undertakes to:
5.4.1 maintain detailed records of all contracts with third-party
customers and to make the details of such contracts available
to Alcan upon request;
5.4.2 maintain detailed records of all Transactions with Alcan;
5.4.3 sign and return each Confirmation received from Alcan within
two Business Days of its issuance; and
5.4.4 provide a certificate on the first day of each calendar
quarter, signed by the Chief Executive Officer and Chief
Financial Officer of Novelis, certifying compliance by Novelis
and each member of its group with their respective obligations
hereunder, including those set forth in this Article 5, and
under each of their material agreements for borrowing of
money.
5.5 Novelis hereby acknowledges that the service provided herein will only
be available if market conditions allow it.
6. ALCAN'S OBLIGATIONS
6.1 Alcan hereby undertakes to provide quotations hereunder to Novelis in a
timely manner and to that effect have employees available for
quotations and Transactions between 8:30 a.m. CET and 4:00 p.m. EST on
days LME is open for business.
6.2 On or about the 15th day of each month, Alcan will send to Novelis by
e-mail or fax the list of Transactions to be unwound in the current
month. Such list will include the name of the appropriate Novelis Group
member, the Quantity hedged, the Reference Price and any other
information agreed by the Parties.
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6.3 At the latest on the second Business Day following receipt by Novelis
of the list mentioned in Section 6.2, Novelis shall confirm that the
information provided is in line with Novelis' position and, if
necessary, will identify all discrepancies. If Novelis does not respond
to the list as contemplated herein, it shall be deemed to have approved
said list.
6.4 On or about the last Business Day of each month, Alcan will send to the
Novelis Shared Service Centre, in Goettingen (Germany) an Excel spread
sheet setting forth the calculation of the positions to be unwound with
respect to each Novelis Group member. In the absence of manifest
errors, all calculations made by Alcan shall be final and conclusive
evidence of the amounts payable by Novelis.
7. VOLUME LIMITS AND MARKET DISRUPTION
7.1 The Parties hereby agree that notwithstanding any other terms and
conditions of this Agreement, they shall enter into Transactions
hereunder in respect of no more than *** metric tonnes of aluminum in
the aggregate over the Term of the Agreement.
7.2 If Alcan determines in good faith that a Market Disruption Event has
occurred, Alcan may, by notice to Novelis, cause all outstanding
Transactions to be terminated immediately and settled on the basis of
quotations from Reference Market-makers.
7.3 Each quotation referred to in Section 7.2 will be for an amount, if
any, that would be paid to such party (expressed as a negative number)
or by such party (expressed as a positive number) in consideration of
an agreement between such party and the quoting Reference Market-maker
to enter into a transaction (the "REPLACEMENT TRANSACTION") that would
have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute
or contingent and assuming the satisfaction of each applicable
condition precedent) in respect of such terminated Transactions. For
this purpose, unpaid amounts in respect of the terminated Transactions
are to be excluded but, without limitation, any payment or delivery
that would have been required (assuming satisfaction of each applicable
condition precedent) after that early termination date is to be
included. The Replacement Transaction shall be subject to such
documentation as such party and the Reference Market-maker may, in good
faith, agree upon. Alcan will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as of the
same day and time (without regard to different time zones) on or as
soon as reasonably practicable after the relevant early termination
date. The day and time as of which those quotations are to be obtained
will be selected in good faith by Alcan. The market quotation will be
the quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be
disregarded.
7.4 Any amount payable by one party to the other following the quotations
process contemplated by Section 7.3 above shall be paid no later than
the second Business Day following the completion of said quotations
process.
*** 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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8. 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, which consent may be granted
or withheld in such Party's sole discretion.
9. TERMINATION
9.1 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 another 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:
9.1.1 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;
9.1.2 such Party breaches any of its material obligations pursuant
to this Agreement (other than as set out in paragraph 9.1.1
above), and fails to cure it within thirty (30) days after
receipt of notice from the Terminating Party specifying the
default in reasonable detail and demanding that it be
rectified, provided that if such breach is not capable of
being cured within thirty (30) days after receipt of such
notice and the Defaulting Party has diligently pursued efforts
to cure the default within the thirty (30) day period, no
Event of Default under this paragraph 9.1.2 shall occur;
9.1.3 such Party breaches any representation or warranty, or fails
to perform or comply with any covenant, provision, undertaking
or obligation in or of the Separation Agreement; or
9.1.4 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 its 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.
9.2 As at the date specified in the notice given by the Terminating Party,
all outstanding Transactions shall be terminated and the amounts
payable by Novelis shall be determined and paid in accordance with
Sections 7.2 and 7.3 mutatis mutandis.
10. DISPUTE RESOLUTION
The Master Agreement with Respect to Dispute Resolution, effective on
the Agreement Effective Date, among the Parties and other parties
thereto shall govern all disputes,
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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 (including all actions taken in furtherance of the
transactions contemplated hereby), or the commercial or economic
relationship of the Parties relating hereto or thereto.
11. MISCELLANEOUS
11.1 Construction. The rules of construction and interpretation set forth in
Section 16.04 of the Separation Agreement shall apply to this
Agreement.
11.2 Confidentiality: The exchange of information and confidentiality
provisions set forth in Article XI of the Separation Agreement shall
apply to this Agreement (as if such Article was set out in full
herein).
11.3 Payment Terms. Save as expressly provided in Sections 2, 3, 4 and 6 and
unless otherwise indicated, any amount to be paid or reimbursed by one
Party to the other under this Agreement shall be paid or reimbursed
hereunder within thirty (30) days after presentation of an invoice or a
written demand therefor and setting forth, or accompanied by,
reasonable documentation or reasonable explanation supporting such
amount.
11.4 Notices. Except as provided for in Section 2.1, all notices or 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 fifth Business Day following the date of mailing 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 ALCAN, TO:
Alcan Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: Chief Legal Officer
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IF TO NOVELIS, TO:
Novelis Inc.
Xxxxx 0000
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx
X.X. Xxx 00
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: Chief Executive Officer
Any Party may, by notice to the other Party, change the address or fax
number to which such notices are to be given.
11.5 Governing Law. This Agreement shall be governed by and construed 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.
11.6 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.
11.7 Conflicts. In case of any conflict or inconsistency between this
Agreement and the Separation Agreement, this Agreement shall prevail.
In case of any conflict or inconsistency between the terms and
conditions of this Agreement and the terms of any Confirmation, the
provisions of the Confirmation shall prevail.
11.8 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.
11.9 Survival. The obligations of the Parties under Sections 7, 10 and 11
and liability for the breach of any obligation contained herein shall
survive the expiration or earlier termination of this Agreement.
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11.10 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.
11.11 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.
11.12 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.
11.13 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.
11.14 Limitations of Liability. Except as otherwise provided herein, neither
Party shall be liable to the other Party for any indirect, collateral,
incidental, special, consequential or punitive damages 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 in Article
IX of the Separation Agreement, (as if such Article was set out in full
herein by reference to the obligations of the Parties hereunder).
11.15 Language. The Parties hereto have required that this Agreement and all
deeds, documents and notices relating hereto be written in English. Les
parties aux presentes ont exige que le present contrat et tout autre
acte, document et avis y afferant soient rediges en anglais.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the Parties have caused this Master Metal Hedging Agreement
to be executed by their duly authorized representatives.
ALCAN INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
NOVELIS INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
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