Common use of Quantity; Forecasts Clause in Contracts

Quantity; Forecasts. 3.2.1 With respect to the purchase of the ATS Nutrient Solution under this Section 3, Buyer shall deliver to ATS: (i) a rolling twelve (12) month forecast of Buyer's quantity requirements for ATS Nutrient Solution on the first day of each calendar quarter, with the first calendar quarter commencing on July 1, 2002; and (ii) at least at the beginning of one (1) full calendar quarter prior to the calendar quarter in which the First Commercial Sale is projected to occur, Buyer's firm purchase order and Delivery Dates for ATS Nutrient Solution for such calendar quarter, which shall be subject to acceptance by ATS, which acceptance shall not be unreasonably withheld. Thereafter, Buyer shall deliver to ATS at the beginning of each calendar quarter, Buyer's firm purchase order and Delivery Date for ATS Nutrient Solution for the next calendar quarter following such calendar quarter, which shall be subject to acceptance by ATS, which acceptance shall not be unreasonably withheld. If a required forecast or purchase order for a quarter is not timely submitted for the ATS Nutrient Solution, the immediately preceding forecast for that quarter shall become the new forecast or purchase order; if there is no preceding forecast for a quarter, the forecast or purchase order for the immediately preceding quarter shall become the forecast or purchase order. 3.2.2 For each forecast of ATS Nutrient Solution following the first such forecast delivered by Buyer, the amount of any ATS Nutrient Solution forecasted for delivery in the first quarter of the four (4) calendar quarters forecasted shall not be less then seventy percent (70%) nor more than one hundred thirty percent (130%) of the most recent previous forecast for such quarter. In addition, no firm purchase order for a particular quarter shall cover an amount of ATS Nutrient Solution greater than one hundred twenty-five percent (125%) or less than seventy-five percent (75%) of the amount of ATS Nutrient Solution ordered for the previous quarter. 3.2.3 The total amount of ATS Nutrient Solution ordered by Buyer for delivery in any calendar quarter for which a purchase order is required may not be less than seventy-five percent (75%) of Buyer's most recent forecast of its requirements for ATS Nutrient Solution for such quarter. In addition, ATS will not be obligated to supply more than one hundred twenty-five percent (125%) of Buyer's most recent forecast of its requirements for ATS Nutrient Solution for such quarter. If Buyer's ATS Nutrient Solution requirement for any quarter exceeds 125% of Buyer's most recent forecast of its requirements for ATS Nutrient Solution for such calendar quarter, ATS and Buyer will discuss in good faith the additional amount, if any, which ATS is willing to accept to supply consistent with its other obligations and Buyer will adjust its purchase order accordingly. Buyer shall indemnify ATS and reimburse it promptly upon request for all reasonable out-of-pocket costs and expenses, including the cost of carrying increased inventory, to the extent caused by any deviation in order quantities from the limits imposed by the preceding sentence, and ATS will act reasonably to mitigate any such costs and expenses. 3.2.4 Buyer's forecasts and purchase orders shall reflect its good faith expectations of customer demand and Buyer shall act in a commercially reasonable manner to schedule orders to avoid creating production capacity problems for ATS as determined in the sole discretion of ATS. 3.2.5 Notwithstanding the foregoing, in the event that the total aggregate amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from all of ATS' customers (including Buyer) in any quarter is greater than ATS' available inventory of ATS Nutrient Solution for such quarter, then Buyer shall be entitled only to its pro-rata portion of the available ATS Nutrient Solution as determined by multiplying the amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from Buyer for such quarter by a fraction, the numerator of which is the amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from Buyer for such quarter and the denominator of which is the aggregate total of ATS Nutrient Solution for which firm purchase orders have been received by ATS from all of ATS' customers (including Buyer) for such quarter.

Quantity; Forecasts. 3.2.1 With respect (a) JMEASI shall have the exclusive right to the purchase manufacture all of the ATS Nutrient Solution under this Section 3, Buyer shall deliver to ATS: (i) a rolling twelve (12) month forecast of BuyerRELM's quantity requirements for ATS Nutrient Solution on the first day Products during the term of each calendar quarter, with the first calendar quarter commencing on July 1, 2002; and (ii) at least at the beginning of one (1) full calendar quarter prior to the calendar quarter in which the First Commercial Sale is projected to occur, Buyer's firm purchase order and Delivery Dates for ATS Nutrient Solution for such calendar quarter, which shall be subject to acceptance by ATS, which acceptance shall not be unreasonably withheld. Thereafter, Buyer shall deliver to ATS at the beginning of each calendar quarter, Buyer's firm purchase order and Delivery Date for ATS Nutrient Solution for the next calendar quarter following such calendar quarter, which shall be subject to acceptance by ATS, which acceptance shall not be unreasonably withheld. If a required forecast or purchase order for a quarter is not timely submitted for the ATS Nutrient Solution, the immediately preceding forecast for that quarter shall become the new forecast or purchase order; if there is no preceding forecast for a quarter, the forecast or purchase order for the immediately preceding quarter shall become the forecast or purchase orderthis Agreement. 3.2.2 For each forecast of ATS Nutrient Solution following the first such forecast delivered by Buyer, the amount of any ATS Nutrient Solution forecasted for delivery in the first quarter of the four (4b) calendar quarters forecasted shall not be less then seventy percent (70%) nor more than one hundred thirty percent (130%) of the most recent previous forecast for such quarter. In addition, no firm purchase order for a particular quarter shall cover an amount of ATS Nutrient Solution greater than one hundred twenty-five percent (125%) or less than seventy-five percent (75%) of the amount of ATS Nutrient Solution ordered for the previous quarter. 3.2.3 The total amount of ATS Nutrient Solution ordered by Buyer for delivery in any calendar quarter for which a purchase order is required may not be less than seventy-five percent (75%) of BuyerRELM's most recent initial forecast of its requirements for ATS Nutrient Solution each of the Products for each of the first twelve(12) months of the term of this Agreement is attached hereto as Exhibit C (the "Forecast") and RELM hereby issues a purchase order for all of the quantities listed in each of the first four (4) months of the Forecast. Within fifteen (15) days of the beginning of each new calendar month, RELM shall submit to JMEASI an updated Forecast. Within five (5) days of receipt, JMEASI shall accept such quarterForecast in whole or in part, and RELM shall issue purchase orders for all quantities listed in the Fourth Month of the Forecast. (c) To the extent accepted by JMEASI, a Forecast shall be binding upon JMEASI and RELM, except that RELM can modify the quantities listed in the Forecast by the following percentages: First Month 0% Second Month 10% Third Month 20% Fourth Month 30% As a particular calendar draws nearer through succeeding Forecasts the above-noted percentages shall be applied restrictively to RELM, such that the percentage corresponding to the calendar month from any applicable Forecast that would allow RELM the least deviation shall be applied, unless JMEASI otherwise consents in an acceptance of a Forecast. In additionFor example, ATS if (i) JMEASI accepts a Forecast that provides that in the Fourth Month RELM will purchase 100 units of a product, and (ii) two months later RELM submits and JMEASI accepts a Forecast that provides that in the Second Month RELM will purchase 120 units of the product, then one further month later RELM's Forecast for that calendar month could not be, and JMEASI would not be obligated to supply accept a Forecast of nor supply, more than one hundred twenty-130 units (i.e., 100 + 30, which is the maximum upper limit from the Fourth Month Forecast) nor less than 108 units (i.e., 120 - 12, which is the maximum lower limit from the Second Month Forecast). (d) RELM shall accept delivery within seven (7) months on all purchase orders issued pursuant to the forecasting procedure contained in this Section. To the extent that RELM does not accept delivery within such seven (7) month time period, JMEASI may, at its sole option, require RELM to pay as liquidated damages the costs of material purchased by JMEASI to fill such purchase orders, plus freight and handling charges of five percent (1255%) of Buyer's most recent forecast of its requirements for ATS Nutrient Solution for such quarter). If Buyer's ATS Nutrient Solution requirement for there is a drastic, continued reduction in the forecasted quantities of a Product which result in the aforementioned failure to accept delivery, such liquidated damages amount shall be the cost of material purchased to fill such purchase orders plus the cost of an additional four weeks of material purchased, plus freight and handling charges of five percent (5%). (e) It is the intent of the Parties that RELM will purchase and JMEASI will supply in any quarter exceeds 125% month at least the minimum forecasted dollar-value of Buyer's most recent forecast sales of its requirements for ATS Nutrient Solution for such Products pursuant to the forecasting procedure contained in this Section (each individually a "Minimum Sale"). If RELM becomes aware of information that would lead it to believe that a Minimum Sale will not be made in any calendar quartermonth, ATS it shall promptly meet with JMEASI and Buyer will discuss attempt in good faith the additional amountto add products to Exhibit A to allow JMEASI to make such Minimum Sale. (f) With all Product schedules, if any, which ATS is willing to accept to supply consistent with its other obligations and Buyer will adjust its purchase order accordingly. Buyer shall indemnify ATS and reimburse it promptly upon request for all reasonable out-of-pocket costs and expenses, including the cost of carrying increased inventory, to the extent caused by any deviation in order quantities from the limits imposed by the preceding sentence, and ATS both parties will act reasonably to mitigate any such costs and expenses. 3.2.4 Buyer's forecasts and purchase orders shall reflect its good faith expectations of customer demand and Buyer shall act in a commercially reasonable manner to schedule orders to avoid creating production capacity problems for ATS as determined in enhance the sole discretion of ATS. 3.2.5 Notwithstanding the foregoing, in the event that the total aggregate amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from all of ATS' customers (including Buyer) in any quarter is greater than ATS' available inventory of ATS Nutrient Solution for such quarter, then Buyer shall be entitled only to its pro-rata portion of the available ATS Nutrient Solution as determined by multiplying the amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from Buyer for such quarter by a fraction, the numerator of which is the amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from Buyer for such quarter overall business relationship and the denominator mutual success of which is both parties. Recognizing the aggregate total possibility of ATS Nutrient Solution for which firm purchase orders have been received by ATS from all of ATS' customers (including Buyer) for sharp increases in demand, JMEASI will act reasonably to attempt to satisfy such quarterdemand.

Quantity; Forecasts. 3.2.1 (a) With respect to the purchase of the ATS Nutrient Solution under this Section 3each Project, Buyer Pfizer shall deliver to ATS: XOMA (i) at least four (4) full calendar quarters prior to the calendar quarter in which the First Commercial Sale of such Product is projected to occur, a rolling twelve (12) month forecast of BuyerPfizer's quantity requirements for ATS Nutrient Solution on such Product for the first day of each calendar quarter, with the first calendar quarter commencing on July 1, 2002; in which the First Commercial Sale of such Product is projected to occur and (ii) at least at the beginning of one (1) full calendar quarter prior to the calendar quarter in which the First Commercial Sale is projected to occur, Buyer's firm purchase order and of such Product ("Delivery Dates for ATS Nutrient Solution Date") for such calendar quarter, which shall be subject to acceptance by ATS, which acceptance shall not be unreasonably withheldquarter and a forecast of its quantity requirements for such Product for the three (3) following calendar quarters. Thereafter, Buyer Pfizer shall deliver to ATS XOMA at or prior to the beginning end of each calendar quarter, BuyerPfizer's firm purchase order and Delivery Date for ATS Nutrient Solution such Product for the next second calendar quarter following such calendar quarterquarter and a forecast of its quantity requirements for such Product for the three (3) following calendar quarters. For purposes of illustration only, which shall be subject on or before September 30, 1987, Pfizer must give to acceptance by ATS, which acceptance shall not be unreasonably withheld. If a required forecast or purchase XOMA its firm order for delivery of Product in the first calendar quarter of 1988 and a quarter is not timely submitted forecast of its requirements for the ATS Nutrient Solutionsecond, the immediately preceding forecast for that quarter shall become the new forecast third and fourth quarters of 1988. On or purchase order; if there is no preceding forecast for a quarterbefore December 31, the forecast or purchase 1987, Pfizer must give XOMA its firm order for delivery of Product in the immediately preceding second quarter shall become of 1988, updated forecasts of its requirements for the third and fourth quarter of 1988 and a forecast or purchase orderof its requirements for the first quarter of 1989. 3.2.2 (b) For each quarterly forecast of ATS Nutrient Solution following the first such forecast delivered by BuyerProduct, the amount of any ATS Nutrient Solution Product forecasted for delivery in the first quarter of the four (4) three calendar quarters forecasted shall be not be less then seventy than fifty percent (7050%) nor or more than one hundred thirty fifty percent (130150%) of the most recent previous forecast for such quarter. In addition, no firm purchase order for a particular quarter shall cover an amount of ATS Nutrient Solution greater than one hundred twenty-five percent (125%) or less than seventy-five percent (75%) of the amount of ATS Nutrient Solution ordered for the previous quarter. 3.2.3 (c) The total amount of ATS Nutrient Solution each Product ordered by Buyer Pfizer for delivery in any one calendar quarter for which a purchase order is required may not be less than seventy-five percent (75%) of BuyerPfizer's most recent forecast of its requirements for ATS Nutrient Solution such Product for such quarter. In addition, ATS XOMA will not be obligated to supply more than one hundred twenty-five percent (125%) of BuyerPfizer's most recent forecast of its requirements for ATS Nutrient Solution such product for such quarter. If Buyer's ATS Nutrient Solution a Pfizer product requirement for any quarter exceeds 125% of BuyerPfizer's most recent forecast of its requirements for ATS Nutrient Solution such Product for such calendar quarter, ATS XOMA and Buyer Pfizer will discuss in good faith the additional amount, if any, amount which ATS is willing to accept XOMA will be able to supply consistent with its other obligations and Buyer Pfizer will adjust its purchase order accordinglyaccordingly (however, Pfizer's orders will have first priority on equipment funded under the Credit Agreement between the parties of even date herewith). Buyer Pfizer shall indemnify ATS XOMA and reimburse it promptly upon request for all reasonable out-of-out of pocket costs and expenses, including the cost of carrying increased inventory, to the extent caused by any deviation in order quantities from the limits imposed by the preceding sentence, and ATS XOMA will act reasonably to mitigate any such costs and expenses. 3.2.4 Buyer's forecasts and purchase orders shall reflect its good faith expectations of customer demand and Buyer shall act in a commercially reasonable manner to schedule orders to avoid creating production capacity problems for ATS as determined in the sole discretion of ATS. 3.2.5 Notwithstanding the foregoing, in the event that the total aggregate amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from all of ATS' customers (including Buyer) in any quarter is greater than ATS' available inventory of ATS Nutrient Solution for such quarter, then Buyer shall be entitled only to its pro-rata portion of the available ATS Nutrient Solution as determined by multiplying the amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from Buyer for such quarter by a fraction, the numerator of which is the amount of ATS Nutrient Solution for which firm purchase orders have been received by ATS from Buyer for such quarter and the denominator of which is the aggregate total of ATS Nutrient Solution for which firm purchase orders have been received by ATS from all of ATS' customers (including Buyer) for such quarter.