EX-10.9 AMENDED AND RESTATED METAL SUPPLY AGREEMEN






Exhibit 10.9



AMENDED AND RESTATED METAL SUPPLY AGREEMENT




between


NOVELIS INC.




(as Purchaser)




and




RIO TINTO ALCAN INC.




(as Supplier)




for the Supply of Sheet Ingot in Europe




Dated as of January 1, 2008











 



 




TABLE OF CONTENTS




	 	 	 	 	 
	1. DEFINITIONS AND INTERPRETATION
	 	 	1	 
	 
	2. METAL
	 	 	8	 
	 
	3. FORCE MAJEURE
	 	 	13	 
	 
	4. ASSIGNMENT
	 	 	15	 
	 
	5. TERM AND TERMINATION
	 	 	16	 
	 
	6. EVENTS OF DEFAULT
	 	 	16	 
	 
	7. DISPUTE RESOLUTION
	 	 	18	 
	 
	8. MISCELLANEOUS
	 	 	20	 






SCHEDULES





	1	 	Logistics Cost
	 
	2	 	Metal Specifications
	 
	3.	 	Product Premium
	 
	4.	 	Shipment and Delivery Performance











 



 







AMENDED AND RESTATED METAL SUPPLY AGREEMENT



THIS AGREEMENT entered into in the City of Montréal, Province of Quebec, as of January 1, 2008.




	 	 	 
	BETWEEN:

	 	NOVELIS INC., a corporation organized under the Canada Business
Corporations Act 
(“Novelis” or the “Purchaser”);
	 
	 	 
	AND:

	 	RIO TINTO ALCAN INC. (formally known as Alcan Inc.), a
corporation organized under the Canada Business Corporations Act
(“Alcan” or the “Supplier”).
	RECITALS:
	 	 





WHEREAS the Parties entered into a Metal Supply Agreement dated January 5, 2005 (the “Original
Agreement”) relating to the supply of Metal at the Delivery Sites; and



WHEREAS the Parties wish to modify certain of the terms and conditions of the Original Agreement
and amend and restate the Original Agreement by this Agreement.



NOW THEREFORE, in consideration of the mutual agreements, covenants and other provisions set forth
in this Agreement, the Parties hereby agree as follows:





	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	For the purposes of this Agreement, the following terms and expressions and variations
thereof shall, unless another meaning is clearly required in the context, have the
meanings specified or referred to in this Section 1.1:
	 
	 	 	“Affected Party” has the meaning set forth in Section 3.1.
	 
	 	 	“Affiliate” of any Person means any other Person that, directly or indirectly,
controls, is controlled by, or is under common control with such first Person as of the
date on which or at any time during the period for when such determination is being
made. For purposes of this definition, “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or other
interests, by contract or otherwise and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
	 
	 	 	“Agreement” means this Amended and Restated Metal Supply Agreement, including all of
the Schedules hereto.
	 
	 	 	“Alcan” means Rio Tinto Alcan Inc. and its successors and permitted assigns.












 






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	 	 	“Alcan Group” means Alcan and its Affiliates from time to time.
	 
	 	 	“Annual Base Quantity” means in respect of each Contract Year, *** Tonnes of Metal;
provided that commencing in respect of the *** Contract Year, either Party, by notice
to the other Party no later than 18 months prior to the commencement of a Contract
Year, may reduce the Annual Base Quantity for such Contract Year and all subsequent
Contract Years by *** Tonnes. Only one such reduction will be permitted to be
exercised in respect of any Contract Year (i.e. the Annual Base Quantity may not be so
reduced by more than *** Tonnes in any Contract Year, but the Annual Base Quantity may
be reduced again in a subsequent Contract Year). For example, in ***, a Party reduces
the Annual Base Quantity for *** and all subsequent Contract Years by *** Tonnes to ***
Tonnes ; in ***, a Party reduces the Annual Base Quantity for *** and all subsequent
Contract Years by an additional *** Tonnes to *** Tonnes;no further reductions are made
for the *** and *** Contract years ; in ***, a Party reduces the Annual Base Quantity
for *** and all subsequent Contract Years by an additional *** Tonnes to *** Tonnes; in
*** , a Party reduces the Annual Base Quantity for *** by an additional *** Tonnes to
***, in which case the Agreement shall terminate on ***.
	 
	 	 	“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.
	 
	 	 	“Bill of Lading Date” means the date of the bill of lading representing Metal cargo to
be delivered under this Agreement.
	 
	 	 	“Business Concern” means any corporation, company, limited liability company,
partnership, joint venture, trust, unincorporated association or any other form of
association.
	 
	 	 	“Business Day” means any day excluding (i) Saturday, Sunday and any other day which, in
the City of London, Frankfurt or Zurich is a legal holiday, or (ii) a day on which
banks are authorized by Applicable Law to close in the City of London, Frankfurt or
Zurich.







 




			
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	 	 	“CIP” means, to the extent not inconsistent with the provisions of this Agreement, CIP
as defined in Incoterms 2000, published by the ICC, Paris, France, as amended from time
to time.
	 
	 	 	“Commercially Reasonable Efforts” means the efforts that a reasonable and prudent
Person desirous of achieving a business result would use in similar circumstances to
ensure that such result is achieved as expeditiously as possible in the context of
commercial relations of the type contemplated in this Agreement; provided, however,
that an obligation to use Commercially Reasonable Efforts under this Agreement does not
require the Person subject to that obligation to assume any material obligations or pay
any material amounts to a Third Party or take actions that would reduce the benefits
intended to be obtained by such Person under this Agreement.
	 
	 	 	“Consent” means any approval, consent, ratification, waiver or other authorization.
	 
	 	 	“Contract Price” means, for each Tonne of Metal sold and purchased hereunder in any
month:






	 	(a)	 	in respect of Metal supplied to a Delivery Site outside of the United
Kingdom from a Supplier Facility located inside Continental Europe, the aggregate
of the following:






	 	(i)	 	the LME Cash Aluminum Price for the month of shipment;
	 
	 	(ii)	 	plus the Logistics Cost, or in the case of delivery from
a Supplier Facility located outside of Continental Europe, plus the cost of
freight and insurance from Rotterdam to the Delivery Site as is the current
practice, (unless Purchaser arranges and pays for freight, in which event
such charge shall not be applied);
	 
	 	(iii)	 	plus the Product Premium;
	 
	 	(iv)	 	plus the EC Duty Paid Premium (LME duty paid premium
indicator / HG Cash (average of bid and ask), as published in Metal
Bulletin, for the month of shipment.






	 	(b)	 	in respect of Metal supplied to a Delivery Site in the United
Kingdom, the aggregate of:






	 	(i)	 	the LME Cash Aluminum Price for the month of shipment.
	 
	 	(ii)	 	plus the Logistics Cost (unless Purchaser arranges and
pays for the freight, in which event such charge shall not be applied);











 



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	 	(iii)	 	plus the Product Premium;
	 
	 	(iv)	 	plus the EC Duty Paid Premium (average of bid and ask)
for the month of shipment; and
	 
	 	(v)	 	minus, in the case of supply of Metal to Rogerstone, the
Rogerstone Discount.






	 	 	“Contract Year” means each calendar year during the Term and any renewals thereof
(sometimes referred to as Contract Year 1, Contract Year 2, etc.).
	 
	 	 	“Default Interest Rate” means the rate of interest charged by the Supplier from time to
time on late payments in accordance with Supplier’s normal commercial practice as
indicated on invoices issued by Supplier to Purchaser hereunder.
	 
	 	 	“Defaulting Party” has the meaning set forth in Section 6.
	 
	 	 	“Delivery Site” means any of the following facilities of the Purchaser, as specified in
respect of each shipment hereunder in the Order provided by the Purchaser hereunder:






	 	(a)	 	the following locations in the United Kingdom:






	 	(i)	 	Rogerstone; and






	 	(b)	 	the following locations in continental Europe:






	 	(i)	 	Norf;
	 
	 	(ii)	 	Sierre; and






	 	(c)	 	such other facilities of the Purchaser as may be agreed by the
Parties.






	 	 	“Disputes” has the meaning set forth in Section 7.1.
	 
	 	 	“Dollars” or “$” means the lawful currency of the United States of America.
	 
	 	 	“EC Duty Paid Premium” means for any calendar month, the arithmetic average of the EC
Duty Paid Premium for primary high grade aluminum, as published by Metal Bulletin on
each day during the calendar month of shipment or as otherwise determined pursuant to
Section 2.6(c).
	 
	 	 	“Euros” means the lawful currency of the member states of the European Union that adopt
the single currency in accordance with the Treaty Establishing the European Community,
as amended by the Treaty on European Union.
	 
	 	 	“Event of Default” has the meaning set forth in Section 6.











 



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	 	 	“Force Majeure” has the meaning set forth in Section 3.2.
	 
	 	 	“Governmental Authority” means any court, arbitration panel, governmental or regulatory
authority, agency, stock exchange, commission or body.
	 
	 	 	“Governmental Authorization” means any Consent, license, certificate, franchise,
registration or permit issued, granted, given or otherwise made available by, or under
the authority of, any Governmental Authority or pursuant to any Applicable Law.
	 
	 	 	“Group” means Alcan Group or Novelis Group, as the context requires.
	 
	 	 	“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.
	 
	 	 	“Information” means any information, whether or not patentable or copyrightable, in
written, oral, electronic or other tangible or intangible forms, stored in any medium,
including studies, reports, test procedures, research, records, books, contracts,
instruments, surveys, discoveries, ideas, concepts, know-how, techniques, manufacturing
techniques, manufacturing variables, designs, specifications, drawings, blueprints,
diagrams, models, prototypes, samples, products, product plans, flow charts, data,
computer data, disks, diskettes, tapes, computer programs or other software, marketing
plans, customer information, customer services, supplier information, communications by
or to attorneys (including attorney-client privileged communications), memos and other
materials prepared by attorneys or under their direction (including attorney work
product), and other technical, financial, employee or business information or data.
	 
	 	 	“LME” means the London Metal Exchange.
	 
	 	 	“LME Cash Aluminum Price” for any calendar month means the arithmetic average of the
LME cash seller’s and buyer’s prices for primary high grade aluminum, as published by
the LME internet site at www.lme.co.uk, at page “LME official closing and reference
prices” on each day during the calendar month of shipment or as otherwise determined
pursuant to Section 2.6(b).
	 
	 	 	“Logistics Cost” means those logistics-related costs charged to Purchaser in accordance
with current practice, as further set forth in Schedule 1.
	 
	 	 	“Metal” means aluminum sheet ingot having the specifications set forth in
Schedule 2.
	 
	 	 	“Novelis” means Novelis Inc. and its successor and permitted assigns.
	 
	 	 	“Novelis Group” means Novelis Inc. and its Affiliates from time to time.











 



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	 	 	“Order” has the meaning set forth in Section 2.4.
	 
	 	 	“Ordinary Course of Business” means any action taken by a Person that is in the
ordinary course of the normal, day-to-day operations of such Person and is consistent
with the past practices of such Person.
	 
	 	 	“Original Agreement” has the meaning set out in the Preamble to this Agreement.
	 
	 	 	“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.
	 
	 	 	“Product Premium” means those product related premiums charged to the Purchaser in
accordance with current practice and as set forth in Schedule 3.
	 
	 	 	“Purchaser” has the meaning set forth in the Preamble to this Agreement.
	 
	 	 	“Representatives” means, with respect to any Person, any of such Person’s directors,
officers, employees, agents, consultants, advisors, accountants or attorneys.
	 
	 	 	“Rogerstone Discount” means in respect of each Tonne of Metal supplied to Purchaser’s
Rogerstone facility from Supplier Facilities at Lochaber or Lynemouth, $*** per Tonne
for supply up to *** Tonnes in *** and $*** per Tonne for supply up to *** Tonnes in
***.
	 
	 	 	“Sales Tax” means any sales, use, consumption, goods and services, value added or
similar tax, duty or charge imposed by a Governmental Authority pursuant to Applicable
Law.
	 
	 	 	“Separation Agreement” means the Separation Agreement dated December 31, 2004 between
the Parties, as amended, restated or modified from time to time.
	 
	 	 	“Specifications” means specifications for Metal as set out in Schedule 2.







 




			
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	 	 	“Subsidiary” of any Person means any corporation, partnership, limited liability
entity, joint venture or other organization, whether incorporated or unincorporated, of
which a majority of the total voting power of capital stock or other interests entitled
(without the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof, is at the time owned or controlled, directly or
indirectly, by such Person.
	 
	 	 	“Supplier” has the meaning set forth in the Preamble to this Agreement. 
	 
	 	 	“Supplier Facilities” means any of the facilities of the Supplier located at Dunkerque,
Isal, Lochaber, Lynemouth, St. Jean, or Lannemezan, or such other facilities as may be
agreed by the Purchaser in accordance with Section 2.1(b).
	 
	 	 	“Term” has the meaning set forth in Section 5.1.
	 
	 	 	“Terminating Party” has the meaning set forth in Section 6.
	 
	 	 	“Third Party” means a Person that is not a Party to this Agreement, other than a member
or an Affiliate of Alcan Group or a member or an Affiliate of Novelis Group.
	 
	 	 	“Tonne” means 1,000 kilograms.






	
1.2   Currency
	 
	 	All currency references to LME metal-related components herein are to U.S. dollars
unless otherwise specified. All other references to currency herein are to Euros
unless otherwise specified. All currency conversions required for purposes of
calculating the applicable Contract Price and various components thereof as well as any
other amounts payable hereunder shall be made utilizing the monthly average of the
daily spot Euro/Dollar exchange rate of the European Central Bank adjusted by the swap
points on two-month forward purchase contracts for the relevant currency.
	 
	1.3	 	Vienna Convention
	 
	 	 	The Parties agree that the terms of the United Nations Convention (Vienna Convention)
on Contracts for the International Sale of Goods (1980) shall not apply to this
Agreement or the obligations of the Parties hereunder.












 



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	2.	 	METAL
	 
	2.1	 	Supply and Sale by the Supplier






	 	(a)	 	Subject to the terms and conditions of this Agreement, beginning on
January 1, 2008 and continuing throughout the Term of this Agreement, the Supplier
shall supply and sell to the Purchaser in each Contract Year, “CIP the applicable
Delivery Site, a quantity of Metal equal to the Annual Base Quantity, subject to
adjustment resulting from the monthly purchases of Metal pursuant to and in
accordance with Section 2.4 (i).
	 
	 	(b)	 	The Supplier shall supply Metal from a Supplier Facility of the
Supplier’s choosing provided that the relevant Supplier Facility is qualified by
the Supplier to supply the specific Metal alloys with mould specifications and
other material specifications requested by the Purchaser. Supplier shall provide
details of supply by Supplier Facility in the same form as provided in accordance
with current practice as at the date hereof. Supplier may also supply Metal from
such other sources and locations as may be agreed by the Parties. If the Supplier
wishes at any time to deliver Metal hereunder to the Purchaser from a source other
than the facilities named in the definition of “Supplier Facilities” herein, it
may do so provided such Metal complies with the Specifications and the Purchaser
has confirmed in writing that the source of such Metal is acceptable to it. The
Purchaser shall act reasonably in providing such confirmation.
	 
	 	(c)	 	The quantity of Metal which the Purchaser agrees to purchase and the
Supplier agrees to supply hereunder shall be subject to reduction on a pro rata
basis in the event the Supplier provides notice to the Purchaser that one of the
Supplier Facilities owned by the Supplier has been temporarily or permanently shut
down by the Supplier, provided such shut down has occurred as a result of a good
faith decision by the Supplier that the continued operation of such Supplier
Facility would be uneconomic or otherwise unviable or non-value maximizing for the
Supplier. This reduction shall be for such quantity as may be agreed by the
Parties and, failing agreement, shall be for such quantity as is equal to the
Annual Base Quantity for the applicable Contract Year multiplied by the annual
reduction capacity of the Supplier Facilities that have been shut down, and
divided by the total annual production capacity of all Supplier Facilities before
giving effect to the shut down.
	 
	 	 	 	Annual Base Quantity for the relevant Contract Years and other related volume
levels will be adjusted accordingly. Any reduction pursuant to this section
2.1(c) in the Supplier’s obligation to supply Metal shall only take effect 18
months after Supplier has provided notice thereof to Purchaser.
	 
	 	 	 	Likewise, should the Purchaser decide to shut down any of its facilities being
supplied under this Agreement, Purchaser will be entitled to reduce Annual












 



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	 	 	 	Base Quantities in a similar manner and with the same 18-month notice to
Supplier.






	2.2	 	Purchase by the Purchaser
	 
	 	 	Subject to the terms and conditions of this Agreement, beginning on January 1 , 2008
and continuing throughout the Term of this Agreement, the Purchaser shall purchase and
take delivery from the Supplier in each Contract Year ,“CIP the applicable Delivery
Site” , a quantity of Metal equal to the Annual Base Quantity , subject to adjustment
resulting from the monthly purchases of Metal pursuant to and in accordance with
Section 2.4(i).
	 
	2.3	 	Notification of Estimated Quantities of Metal Required by the Purchaser






	 	 a)	 	The Purchaser and the Supplier shall use Commercially Reasonable
Efforts to arrange for shipping and delivery to be evenly spread on a monthly
basis throughout each Contract Year.
	 
	 	 b)	 	The quantity of Metal to be sold and purchased hereunder (i) in each
calendar month of the Term shall not exceed ***% or be less than ***% of one
twelfth (1/12) of the Annual Base Quantity for the relevant Contract Year and (ii)
in each Contract Year shall not exceed the Annual Base Quantity for such Contract
Year or be less than ***% of the Annual Base Quantity for such Contract Year. Any
variations to the sale and purchase of the Annual Base Quantity in any Contract
Year shall only occur as a result of the monthly purchases of Metal pursuant to
and in accordance with section 2.4(i).





	2.4	 	Scheduling of Quantities





	        	Subject to Section 2.3(b), throughout the Term of this Agreement, by the fifteenth
(15th) day of each calendar month (and if such day is not a Business Day, on the
Business Day immediately preceding such 15th day), the Purchaser shall
notify the Supplier of:






	 	(i)	 	the quantity of Metal it will purchase during the
following calendar month (an “Order”); the Purchaser shall use Commercially
Reasonable Efforts to ensure that the quantities identified in the Orders in
each Contract Year are as nearly equal as possible, and in any event would
not fluctuate in respect of delivery in any particular month by more or less
than ***% of the Annual Base Quantity divided by 12; and







 




			
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	 	(ii)	 	the Purchaser’s best estimate (which is non-binding) of
its Metal requirements during the two (2) calendar months following the
calendar month referred to in Section 2.4 (i).






	2.5	 	Supplier’s Shipping Obligations






	 	(a)	 	The Supplier shall supply to the Purchaser, and the Purchaser shall
purchase from the Supplier, in accordance with the terms hereof, in each month,
such quantity of Metal as is identified by the Purchaser in respect of such
calendar month in the Order for such month delivered by the Purchaser in
accordance with Section 2.4 ; provided that during each calendar month the
Purchaser, by notice to the Supplier, may vary the quantity of Metal to be
purchased in such month to a quantity of Metal between ***% and ***% of the
quantity of Metal identified in the Order for such calendar month, subject to
meeting the requirements of Section 2.4(i) relative to minimum and maximum monthly
quantities and of Section 2.3(b) relative to the Annual Base Quantity.
	 
	 	(b)	 	Notwithstanding the provisions of Incoterms 2000 and Section 2.9, the
Supplier acknowledges its responsibility to make all necessary arrangements for
the shipment and insurance for the transportation of Metal to the Delivery Site on
behalf of the Purchaser unless purchaser decides to arrange and pay for the
freight. The Supplier shall act as the disclosed agent of the Purchaser in
entering into contracts for hiring carriers and obtaining insurance for the
shipment of Metal under this Agreement. In doing this, the Supplier shall use
Commercially Reasonable Efforts to obtain competitive freight and insurance rates
and shall consult with the Purchaser before entering into any long term contracts
for hiring carriers or obtaining insurance on behalf of the Purchaser. The
Supplier shall use Commercially Reasonable Efforts to ensure that such
transportation is suitable for delivering the Metal to the Delivery Site and
complies with insurance requirements.
	 
	 	(c)	 	Matters regarding shipment and delivery performance hereunder shall
be governed by the provisions of Schedule 4.







 




			
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	2.6	 	Price






	 	(a)	 	The price payable by the Purchaser to the Supplier for each Tonne of
Metal sold and purchased pursuant to Sections 2.1 and 2.2 shall be the Contract
Price applicable to the Delivery Site to which such Metal is delivered. The
calendar month used for calculating the Contract Price for any shipment of Metal
shall be the calendar month of shipment set forth in the relevant Order.
	 
	 	(b)	 	In the event that (i) LME ceases or suspends trading in aluminum,
(ii) Metal Bulletin ceases to be published or ceases publication of the relevant
reference price for determining the EC Duty Paid Premium or (iii) the LME internet
site ceases to publish the mean cash price for determining the LME Cash Aluminum
Price, the Parties shall meet with a view to agreeing on an alternative
publication or, as applicable, reference price. If the Parties fail to reach an
agreement within sixty (60) days of any Party having notified the other to enter
into discussions to agree to an alternative publication or reference price, then
the Chairman of the LME in London, England or his nominee shall be requested to
select a suitable reference in lieu thereof and an 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)	 	In the event the EC Duty Paid Premium indicator is discontinued due
to the reduction or elimination of the import duty on unwrought aluminium, the EC
Duty Paid Premium shall be replaced by a corresponding European Market Premium
indicator, if published by Metal Bulletin. If no such replacement indicator is
published, the Parties will enter into good faith negotiations in order to amend
the definition of EC Duty Paid Premium.






	2.7	 	Quality






	 	(a)	 	Metal supplied under this Agreement shall comply with the
Specifications set forth in Schedule 2. The Supplier shall use
Commercially Reasonable Efforts to notify the Purchaser prior to shipment of any
Metal that does not meet Specifications. The Purchaser shall not be required to
accept delivery of any Metal that does not meet Specifications. If the Purchaser
does not accept delivery of Metal not meeting Specifications, the Supplier’s
obligation shall be limited to the assumption of all costs for return of such
Metal to the Supplier, and for the delivery of replacement Metal to the Purchaser.
All other express or implied warranties, conditions and other terms relating to
Metal hereunder, including warranties relating to merchantability or fitness for a
particular purpose, are hereby excluded to the fullest extent permitted by
Applicable Law.
	 
	 	(b)	 	If the Specifications for Metal supplied by the Supplier change, the
Supplier may propose that the Specifications set forth in Schedule 2 be
amended to reflect such changes. If the revised Specifications do not result in
increased












 



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	 	 	 	costs for the processing of such Metal by the Purchaser, the Purchaser shall not
unreasonably withhold or delay its consent to such changed specifications.






	2.8	 	Payment






	 	(a)	 	The Purchaser shall pay the Supplier in full for each shipment of
Metal meeting the Specifications set out in Schedule 2 or otherwise
accepted by the Purchaser in accordance with the Supplier’s commercial invoice
within forty-five (45) days of the last day of the month of the Bill of Lading
Date.
	 
	 	(b)	 	If the Purchaser believes that a shipment of Metal does not meet the
Specifications set out in Schedule 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 that the Metal 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) above, interest in
accordance with Section 2.8(c).
	 
	 	(c)	 	If any payment required to be made pursuant to Section 2.8(a) above
is overdue, the full amount shall bear interest at a rate per annum equal to the
Default Interest Rate calculated on the actual number of days elapsed, accrued
from and excluding the date on which such payment was due, up to and including the
actual date of receipt of payment in the nominated bank or banking account.
	 
	 	(d)	 	All amounts paid to the Supplier or the Purchaser hereunder shall be
paid in Euros, pounds, sterling or Dollars, at the option of the Party making the
payment, by wire transfer in immediately available funds to the account specified
by the Supplier or Purchaser, as applicable, by notice from time to time by one
Party to the other hereunder.
	 
	 	(e)	 	If any Party fails to purchase or supply, as applicable, any quantity
of Metal in any month as required under the terms of this Agreement, such Party
shall be liable to the other Party for all direct damages, losses and costs
resulting from such failure, provided that such other Party shall use its
Commercially Reasonable Efforts to mitigate such damages, losses and costs.






	2.9	 	Delivery
	 
	 	 	Metal shall be delivered CIP the Delivery Site identified in each Order. The delivery
of Metal pursuant to this Section 2.9 shall be governed by Incoterms 2000, as amended
from time to time.







	2.10	 	Title and Risk of Loss
	 
	 	 	Title to and risk of damage to and loss of Metal shall pass to the Purchaser as the

Metal is delivered by the Supplier to the carrier.













 



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	2.11	 	Purchaser as Principal
	 
	 	 	The Purchaser warrants that all Metal to be purchased hereunder shall be purchased for
Purchaser’s own consumption (and, as applicable, that of its Subsidiaries). The
Purchaser agrees that it shall not re-sell or otherwise make available to any Person
(other than a Subsidiary) any Metal purchased from the Supplier hereunder, other than
in respect of transactions undertaken in small quantities by the Purchaser to balance
purchases or Purchaser’s metal position.
	 
	2.12	 	Continuous Supply Chain Improvement
	 
	 	 	The Parties shall form a work group comprised of four representatives of each Party to
identify opportunities to improve the supply chain, to agree on performance metrics and
to determine appropriate financial penalties and incentives relative to target
performance levels. The Parties shall use Commercially Reasonable Efforts to complete
such process by June 30, 2008. This Agreement, including Schedule 4, will be modified
accordingly to reflect any agreements reached by the Parties in connection with such
process.
	 
	3.	 	FORCE MAJEURE
	 
	3.1	 	Effect of Force Majeure
	 
	 	 	No Party shall be liable for any loss or damage that arises directly or indirectly
through or as a result of any delay in the fulfilment of or failure to fulfil its
obligations in whole or in part (other than the payment of money as may be owed by a
Party) under this Agreement where the delay or failure is due to Force Majeure. The
obligations of the Party affected by the event of Force Majeure (the “Affected Party”)
shall be suspended, to the extent that those obligations are affected by the event of
Force Majeure, from the date the Affected Party first gives notice in respect of that
event of Force Majeure until cessation of that event of Force Majeure (or the
consequences thereof).
	 
	3.2	 	Definition
	 
	 	 	“Force Majeure” shall mean any act, occurrence or omission (or other event), subsequent
to the commencement of the Term hereof, which is beyond the reasonable control of the
Affected Party including, but not limited to: fires, explosions, accidents, strikes,
lockouts or labour disturbances, floods, droughts, earthquakes, epidemics, seizures of
cargo, wars (whether or not declared), civil commotion, acts of God or the public
enemy, action of any government, legislature, court or other Governmental Authority,
action by any authority, representative or organisation exercising or claiming to
exercise powers of a government or Governmental Authority, compliance with Applicable
Law, blockades, power failures or curtailments, inadequacy or shortages or curtailments
or cessation of supplies of raw materials or other supplies, failure or breakdown of
equipment of facilities, the invocation of Force Majeure by any party to an agreement
under which












 



14


	 	 	any Party’s operations are affected, and any declaration of Force Majeure by the
facility producing the Metal, or any other event beyond the reasonable control of the
Parties whether or not similar to the events or occurrences enumerated above. In no
circumstances shall problems with making payments constitute Force Majeure.
	 
	3.3	 	Notice
	 
	 	 	Upon the occurrence of an event of Force Majeure, the Affected Party shall promptly
give notice to the other Party hereto setting forth the details of the event of Force
Majeure and an estimate of the likely duration of the Affected Party’s inability to
fulfil its obligations under this Agreement. The Affected Party shall use Commercially
Reasonable Efforts to remove the said cause or causes and to resume, with the shortest
possible delay, compliance with its obligations under this Agreement provided that the
Affected Party shall not be required to settle any strike, lockout or labour dispute on
terms not acceptable to it. When the said cause or causes have ceased to exist, the
Affected Party shall promptly give notice to the other Party that such cause or causes
have ceased to exist.
	 
	3.4	 	Pro Rata Allocation
	 
	 	 	If the Supplier’s supply of any Metal to be delivered to the Purchaser is stopped or
disrupted by an event of Force Majeure, the Supplier shall have the right to allocate
its available supplies of such Metal, if any, among any or all of its existing
customers, including internal customers, in a fair and equitable manner. In addition,
where the Supplier is the Affected Party, it may (but shall not be required to) offer
to supply, from another source, Metal of similar quality in substitution for the Metal
subject to the event of Force Majeure to satisfy that amount which would have otherwise
been sold and purchased hereunder at a price which may be more or less than the price
hereunder.
	 
	3.5	 	Consultation
	 
	 	 	Within thirty (30) days of the cessation of the event of Force Majeure, the Parties
shall consult with a view to reaching agreement as to the Supplier’s obligation to
provide, and the Purchaser’s obligation to take delivery of, that quantity of Metal
that could not be sold and purchased hereunder because of the event of Force Majeure,
provided that any such shortfall quantity has not been replaced by substitute Metal
pursuant to the terms above.
	 
	 	 	In the absence of any agreement by the Parties, failure to deliver or accept delivery
of Metal which is excused by or results from the operation of the foregoing provisions
of this Section 3 shall not extend the Term of this Agreement and the quantities of
Metal to be sold and purchased under this Agreement shall be reduced by the quantities
affected by such failure.












 



15


	3.6	 	Termination






	 	(a)	 	If an event of Force Majeure where the Affected Party is the
Purchaser shall continue for more than *** consecutive calendar months, then the
Supplier shall have the right to terminate this Agreement.
	 
	 	(b)	 	If an event of Force Majeure where the Affected Party is the Supplier
shall continue for more than *** consecutive calendar months, then the Purchaser
shall have the right to terminate this Agreement.






	4.	 	ASSIGNMENT
	 
	4.1	 	Prohibition on Assignments
	 
	 	 	No Party shall assign or transfer this Agreement, in whole or in part, or any interest
or obligation arising under this Agreement except as permitted by Section 4.2, without
the prior written consent of the other Party.
	 
	4.2	 	Assignment within Alcan Group or Novelis Group






	 	(a)	 	With the consent of Novelis, such consent not to be unreasonably
withheld or delayed, Alcan may elect to have one or more of the Persons comprising
the Alcan Group assume the rights and obligations of the Supplier under this
Agreement, provided that






	 	(i)	 	Alcan shall remain fully liable for all obligations of
the Supplier hereunder, and
	 
	 	(ii)	 	the transferee will remain at all times a member of the
Alcan Group;
	 
	any such successor to Alcan as a Supplier under this Agreement shall be deemed to be
the “Supplier” for all purposes of the
Agreement.







	 	(b)	 	With the consent of Alcan, such consent not to be unreasonably
withheld or delayed, Novelis may elect to have one or more of the Persons
comprising the Novelis Group assume the rights and obligations of the Purchaser
under this Agreement, provided that






	 	(i)	 	Novelis shall remain fully liable for all obligations of
the Purchaser hereunder, and







 




			
	***	 	Certain information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested with
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16







	 	(ii)	 	the transferee will remain at all times a member of the
Novelis Group;






	 	any such successor to Novelis as Purchaser under this Agreement shall be deemed to be
the “Purchaser” for all purposes of this Agreement.






	5.	 	TERM AND TERMINATION
	 
	5.1	 	Term
	 
	 	 	The term of this Agreement (the “Term”) shall commence on *** and shall
terminate on ***, unless terminated earlier or automatically renewed pursuant to the
provisions of this Agreement.
	 
	5.2	 	Renewal
	 
	 	 	Unless terminated earlier, this Agreement shall be automatically renewed for successive
periods of one year until such time as the Annual Base Quantity for a Contract Year has
been reduced to zero, in which case this Agreement shall terminate at the expiry of the
Contract Year immediately preceding such Contract Year.
	 
	5.3	 	Termination
	 
	 	 	This Agreement shall terminate:






	 	(a)	 	upon expiry of the Term, as extended pursuant to automatic renewal;
	 
	 	(b)	 	upon the mutual agreement of the Parties prior to the expiry of the
Term;
	 
	 	(c)	 	pursuant to Section 3.6 as a result of Force Majeure; or
	 
	 	(d)	 	upon the occurrence of an Event of Default, in accordance with
Section 6.






	6.	 	EVENTS OF DEFAULT
	 
	 	 	This Agreement may be terminated in its entirety immediately at the option of a Party
(the “Terminating Party”), in the event that an Event of Default occurs in relation to
the other Party (the “Defaulting Party”), and such termination shall take effect
immediately upon the Terminating Party providing notice to the Defaulting Party of the
termination.







 




			
	***	 	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.










 



17







	 	For the purposes of this Agreement, each of the following shall individually and
collectively constitute an “Event of Default” with respect to a Party:
	 
	 	(a)	 	such Party defaults in payment of any payments which are due and
payable by it pursuant to this Agreement, and such default is not cured within
thirty (30) days following receipt by the Defaulting Party of notice of such
default;
	 
	 	(b)	 	such Party breaches any of its material obligations pursuant to this
Agreement (other than as set out in paragraph (a) above), and fails to cure it
within sixty (60) days after receipt of notice from the non-defaulting Party
specifying the default with reasonable detail and demanding that it be cured,
provided that if such breach is not capable of being cured within sixty (60) days
after receipt of such notice and the Party in default has diligently pursued
efforts to cure the default within the sixty (60) day period, no Event of Default
under this paragraph (b) shall occur;
	 
	 	(c)	 	in relation to the Purchaser (1) upon the occurrence of a Non Compete
Breach (as defined in the Separation Agreement) and the giving of notice of the
termination of this Agreement by Alcan to Novelis pursuant to Section 14.03(b) of
the Separation Agreement and pursuant to this paragraph of this Agreement, or (2)
upon the occurrence of a Change of Control Non Compete Breach (as defined in the
Separation Agreement) and the giving of notice of the termination of this
Agreement by Alcan to Novelis pursuant to Section 14.04(e) of the Separation
Agreement, in which event the termination of this Agreement shall be effective
immediately upon Alcan providing Novelis notice pursuant to Section 14.03(b) or
Section 14.04(e) of the Separation Agreement;
	 
	 	(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.












 



18








	7.	 	DISPUTE RESOLUTION
	 
	7.1	 	Disputes
	 
	 	 	The provisions of this Section 7 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 (a
“Dispute”).
	 
	7.2	 	Negotiation
	 
	 	 	The Parties hereby undertake to attempt in good faith to resolve any Dispute by way of
negotiation between senior executives 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 negotiation 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.
	 
	7.3	 	Mediation






	 	(a)	 	If the Dispute has not been resolved by negotiation as provided in
Section 7.2 within thirty (30) days of the date of the Escalation Notice or such
extended period as may be agreed by the Parties, or should the Parties fail to meet
within the said thirty-day period, the Parties shall endeavour to settle the
Dispute by mediation. The Party wishing to refer a Dispute to mediation shall give
written notice to the other (the “Mediation Notice”) describing the Dispute,
requiring that the Dispute be submitted to mediation and proposing the name of a
suitable person to be appointed mediator.
	 
	 	(b)	 	If the other Party rejects the proposed mediator and the Parties are
unable to agree on a mediator within fifteen (15) days of the Mediation Notice,
then either Party may request the CPR Institute for Dispute Resolution to appoint a
mediator from the CPR Panel of Distinguished Neutrals.
	 
	 	(c)	 	The mediator shall be entitled to make recommendations to the Parties
which, unless the Parties agree otherwise, shall not be binding upon them.
	 
	 	(d)	 	The mediation shall continue until the earliest to occur of the
following: (i) the Parties reach agreement as to the resolution of the Dispute,
(ii) the mediator












 



19


	 	 	 	makes a finding that there is no possibility of resolution through mediation, or
(iii) sixty (60) days have elapsed since the appointment of the mediator.
	 
	 	(e)	 	Each Party shall bear its own costs in connection with the mediation;
the fees and disbursements of the mediator shall be borne equally by the Parties.
	 
	 	(f)	 	If the Parties accept any recommendation made by the mediator or
otherwise reach agreement as to the resolution of the Dispute, such agreement shall
be recorded in writing and signed by the Parties, whereupon it shall become binding
upon the Parties and have, as between them, the authority of a final judgment or
arbitral award (res judicata).
	 
	 	(g)	 	The mediation shall be confidential and neither the Parties (including
their auditors and insurers) nor their counsel and any Person necessary to the
conduct of the mediation nor the mediator or any other neutral involved in the
mediation shall disclose the existence, content (including submissions made,
positions adopted and any evidence or documents presented or exchanged), or outcome
of any mediation hereunder without the prior written consent of the Parties, except
as may be required by Applicable Law or the applicable rules of a stock exchange.
	 
	 	(h)	 	In the event that a Dispute is referred to arbitration in accordance
with Section 7.4 below, the mediator or any other neutral involved in the mediation
shall not take part in the arbitration, whether as a witness or otherwise, and any
recommendation made by him in connection with the mediation shall not be relied
upon by either Party without the consent of the other Party and of the mediator or
neutral, and neither Party shall make use of or rely upon information supplied,
positions adopted, or arguments raised, by the other Party in the mediation.
	 
	 	(i)	 	Subject to the right of the Parties to seek interim or conservatory
relief from a court of competent jurisdiction, as provided below in Section 7.4 (e)
neither Party shall be entitled to refer a Dispute to arbitration unless the
dispute has first been the subject of an Escalation Notice and been referred to
mediation in accordance with Sections 7.2 and 7.3.






	7.4	 	Arbitration






	 	(a)	 	Any Dispute which has not been resolved by negotiation or mediation
as provided herein shall, upon the request of either Party, be referred to and
finally resolved by arbitration in accordance with the Arbitration Rules of the
London Court of International Arbitration (“LCIA”) then in force (the “LCIA
Rules”).
	 
	 	(b)	 	The arbitral tribunal shall consist of three arbitrators. The place
of arbitration shall be Montréal, Canada. The language of the arbitration shall
be English.












 



20


	 	(c)	 	The costs of the arbitration shall be specified 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, in addition
to the costs of the arbitration as determined by the LCIA Court under Article 28.1
of the LCIA Rules, the legal and other costs incurred by the Parties, including:
(i) the reasonable travel and other expenses of witnesses; (ii) the reasonable
fees and expenses of expert witnesses; and (iii) 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)	 	For the purposes of any interim or conservatory measure that may be
sought in aid of the arbitration proceedings, the Parties hereby irrevocably
submit to the non-exclusive jurisdiction of the competent court in the judicial
district of Montréal, Canada, and waive any right to invoke, and they hereby agree
not to invoke, any claim of forum non conveniens, inconvenient forum, or transfer
or change of venue. Without prejudice to such interim or conservatory remedies as
may be obtained from a competent court, the arbitral tribunal shall have full
authority to grant interim or conservatory remedies and to award damages for the
failure of any Party to respect the arbitral tribunal’s orders to that effect.
	 
	 	(f)	 	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 outcome of any arbitration
hereunder without the prior written consent of the Parties, except as may be
required by Applicable Law or the applicable rules of a stock exchange.






	7.5	 	Continuing Obligations
	 
	 	 	The existence of a Dispute between the Parties with respect to this Agreement shall
not relieve either Party from performance of its obligations under this Agreement that
are not the subject of such Dispute.






	8.	 	MISCELLANEOUS






	8.1	 	Construction
	 
	 	 	In this Agreement, unless a clear contrary intention appears:
	 
	 	 	the singular number includes the plural number and vice versa;












 



21








	 	(a)	 	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;
	 
	 	(b)	 	reference to any gender includes each other gender;
	 
	 	(c)	 	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;
	 
	 	(d)	 	reference to any Applicable Law means such Applicable Law as amended,
modified, codified, replaced or reenacted, 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 reenactment of
such section or other provision;
	 
	 	(e)	 	“herein”, “hereby”, “hereunder”, “hereof”, “hereto” and words of
similar import shall be deemed references to this Agreement or to the relevant
Ancillary Agreement as a whole and not to any particular Article, Section or other
provision hereof or thereof;
	 
	 	(f)	 	“including” (and with correlative meaning “include”) means including
without limiting the generality of any description preceding such term;
	 
	 	(g)	 	the Table of Contents and headings are for convenience of reference
only and shall not affect the construction or interpretation hereof or thereof;
	 
	 	(h)	 	with respect to the determination of any period of time, “from” means
“from and including” and “to” means “to but excluding”; and
	 
	 	(i)	 	references to documents, instruments or agreements shall be deemed to
refer as well to all addenda, exhibits, schedules or amendments thereto.






	8.2	 	Notices
	 
	 	 	All notices and other communications under this Agreement shall be in writing and shall
be deemed to be duly given (a) on the date of delivery, if delivered personally, (b) on
the first Business Day following the date of dispatch if delivered by a nationally
recognized next-day courier service, (c) on the date of actual receipt if delivered by
registered or certified mail, return receipt requested, postage prepaid or (d) if sent
by facsimile transmission, when transmitted and receipt is confirmed by telephone. All
notices hereunder shall be delivered as follows:












 



22


	 	 	If to the Purchaser, to:
	 
	 	 	Novelis Inc.


3399 Peachtree Road NE, Suite 1500


Atlanta, Georgia 30326
	 
	 	 	Fax: 404-814-4272
	 
	 	 	Attention: General Counsel
	 
	 	 	If to the Supplier, to:
	 
	 	 	Rio Tinto Alcan Inc.


1188 Sherbrooke Street West


Montreal, Quebec


H3A 3G2
	 
	 	 	Fax: 514-848-8115
	 
	 	 	Attention: Chief Legal Officer
	 
	 	 	Any Party may, by notice to the other Party, change the address or fax number to which
such notices are to be given.
	 
	8.3	 	Governing Law
	 
	 	 	This Agreement shall be governed by and construed and interpreted in accordance with
the laws of the Province of Quebec and the laws of Canada applicable therein,
irrespective of conflict of laws principles under Quebec law, as to all matters,
including matters of validity, construction, effect, enforceability, performance and
remedies.
	 
	8.4	 	Judgment Currency
	 
	 	 	The obligations of a Party to make payments hereunder shall not be discharged by an
amount paid in any currency other than Dollars, whether pursuant to a court judgment or
arbitral award or otherwise, to the extent that the amount so paid upon conversion to
Dollars and transferred to an account indicated by the Party to receive such funds
under normal banking procedures does not yield the amount of Dollars 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
Dollars, any difference between the sum originally due in Dollars and the amount of
Dollars received upon any such conversion and transfer.












 



23


	8.5	 	Entire Agreement
	 
	 	 	This Agreement and the schedules 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, including the Original Agreement and the
letter agreement dated July 11, 2007, negotiations, discussions, writings,
understandings, commitments and conversations with respect to such subject matter. No
agreements or understandings exist between the Parties with respect to the subject
matter hereof other than those set forth or referred to herein or therein.
	 
	8.6	 	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.
	 
	8.7	 	Survival
	 
	 	 	The obligations of the Parties under Sections 2.6, 2.7, 2.8, 7, 8.14 and 8.15 and
liability for the breach of any obligation contained herein shall survive the
expiration or earlier termination of this Agreement.
	 
	8.8	 	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.
	 
	8.9	 	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.












 



24


	8.10	 	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.
	 
	8.11	 	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.
	 
	8.12	 	Taxes, Royalties and Duties
	 
	 	 	All royalties, taxes and duties imposed or levied on any Metal delivered hereunder
(other than any taxes on the income of the Supplier) shall be for the account of and
paid by the Purchaser.
	 
	8.13	 	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.
	 
	8.14	 	Confidentiality






	 	(a)	 	Subject to Section 8.15, each Party shall hold, and shall cause its
respective Group members and 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 Group (or any member thereof) that is either in
its possession (including Information in its possession prior to the date hereof)
or furnished by the other Group (or any member thereof) or by any of its
Affiliates (whether now an Affiliate or hereafter becoming an Affiliate) or their
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, and shall cause its respective
Group members, Affiliates and Representatives not to use, any such Confidential
Information other than for such purposes as shall be expressly permitted hereunder
or thereunder. Notwithstanding the foregoing, Confidential Information shall not
include Information that is or was (i) in the












 



25


	 	 	 	public domain other than by the breach of this Agreement or by breach of any
other agreement relating to confidentiality between or among the Parties and/or
their respective Group members, their respective Affiliates or Representatives,
(ii) lawfully acquired by such Party (or any member of the Group to which such
Party belongs or any of such Party’s Affiliates) 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 member of the Group to which
such Party belongs).
	 
	 	(b)	 	Each Party shall maintain, and shall cause its respective Group
members to maintain, policies and procedures, and develop such further policies
and procedures as will from time to time become necessary or appropriate, to
ensure compliance with this Section 8.14(a).
	 
	 	(c)	 	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 8.15. Without limiting the
foregoing, when any Information furnished by the other Party after the Effective
Time pursuant to this Agreement is no longer needed for the purposes contemplated
by this Agreement, each Party will promptly, after request of the other Party and
at the election of the Party receiving such request, return to the other Party all
such Information in a printed or otherwise tangible form (including all copies
thereof and all notes, extracts or summaries based thereon) and destroy all
Information in an electronic or otherwise intangible form and certify to the other
Party that it has destroyed such Information (and such copies thereof and such
notes, extracts or summaries based thereon). Notwithstanding the foregoing, the
Parties agree that to the extent some Information to be destroyed or returned is
retained as data or records for the purpose of business continuity planning or is
otherwise not accessible in the Ordinary Course of Business, such data or records
shall be destroyed in the Ordinary Course of Business in accordance, if
applicable, with the business continuity plan of the applicable Party.












 



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	8.15	 	Protective Arrangements
	 
	 	 	In the event that any Party or any member of its Group or any Affiliate of such Party or
any of their respective Representatives either determines on the advice of its counsel
that it is required to disclose any Confidential Information (the “Disclosing Party”)
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 member of the Group to which such Party belongs), the Disclosing Party
shall, to the extent permitted by Applicable Law, promptly notify the other Party prior
to the Disclosing Party disclosing or providing such Confidential Information and shall
use commercially reasonable efforts to cooperate with the Requesting Party so that the
Requesting Party may seek any reasonable protective arrangements or other appropriate
remedy and/or waive compliance with this Section 8.15. All expenses reasonably incurred
by the Disclosing Party in seeking a protective order or other remedy will be borne by
the Requesting Party. Subject to the foregoing, the Disclosing Party 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 Requesting Party 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.





[The remainder of this page is intentionally blank.]












 



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IN WITNESS WHEREOF, the Parties hereto have caused this Amended and Restated Metal Supply Agreement
to be executed by their duly authorized representatives.




	 	 	 	 	 
	 	NOVELIS INC.

 	 
	 	By:  	/s/ Martha Brooks
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	RIO TINTO ALCAN INC.

 	 
	 	By:  	/s/ Jacynthe Cote
 	 
	 	 	Name:  	 	 
	 	 	Title: