Failure of Sepracor to Use Logistically Available Sepracor Capacities; Investment Amortization Sample Clauses

Failure of Sepracor to Use Logistically Available Sepracor Capacities; Investment Amortization. Sepracor acknowledges that, in setting-up, and maintaining and adjusting the Logistically Available Sepracor Capacities, Nycomed relies on Sepracor's Rough Cut Capacity Planning, related forecasts and order volume estimations. In the event that Nycomed and Sepracor mutually agree that Sepracor's Rough Cut Capacity Planning requires Nycomed to increase the Logistically Available Sepracor Capacities, and, therefore, the Logistically Available Overall Capacities (such increase in the Logistically Available Overall Capacities is referred to as the "Increased Capacity"), Sepracor agrees to share in Nycomed's investment to obtain the Increased Capacity as follows: In the event that Sepracor should, in any given Contract Year, have failed to purchase a portion of the agreed upon Increased Capacity, then Sepracor shall make payment to Nycomed, within [**] from the end of each relevant Contract Year, of an amount calculated as the product of (i) the number of Units equal to the difference of (a) the number of Units of Product in the Increased Capacity (such difference is referred to as the "Excess Increased Capacity") and (b) the numbers of Units of Product actually purchased and paid by Sepracor in such Contract Year from such Increased Capacity, and (ii) in case of the Omnaris® AQ Product to be 50% of the Actual Manufacturing Cost, in case of the Omnaris® HFA Product to be 50% of the Actual Manufacturing Cost, and in case of the Alvesco® HFA Product to be [**]% of the Actual Manufacturing Cost, provided, however, that in the event Nycomed is able to sell or use all or a portion of the Excess Increased Capacity, Sepracor shall not be required to pay Nycomed for such Excess Increased Capacity. Notwithstanding anything above in this Section 10.2.1.3, Sepracor's aggregate payments to Nycomed pursuant to this Section 10.2.1.3 shall not exceed an amount equal to [**] percent ([**]%) of Nycomed's actual investment in connection with the Increased Capacity.
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