Alternative use of allotted capacity. (i) If a Party is unable to utilize its allotted manufacturing capacity for Y4 NAND Flash Memory Products (such Party, an “Excess Capacity” or “EC Party”), it may do any of the following:
(A) An EC Party may request the other Party to negotiate the terms of transfer of its capacity shortfall to the other Party, which may choose whether to accept such additional capacity and on what terms in its sole discretion.
(B) An EC Party may use its capacity for Embedded NAND Products, as defined in and subject to Section 6.7(c).
(C) An EC Party may use its capacity for Proprietary NAND Flash Memory Products and non-Proprietary NAND Flash Memory Products, in accordance with and subject to Sections 6.7(d) and (e). If an EC Party is not able to utilize or transfer its allotted capacity pursuant to Section 6.7(b), it shall pay the incremental cost increase to the Party not experiencing a shortfall (or pay to Flash Alliance an under-utilization fee in accordance with a formula to be mutually determined by the Parties).
(ii) If both Parties are EC Parties because demand for both Parties’ Y4 NAND Flash Memory Products are significantly below expectations, the Parties will discuss in good faith whether to permit products which are not Y4 NAND Flash Memory Products to be produced at the Y4 Facility; provided that (A) the inability of the Parties so to agree shall not constitute a Deadlock (as defined in the FA Operating Agreement) and (B) the foregoing shall not limit either Party’s rights in the remainder of this Section 6.7.
Alternative use of allotted capacity. The rights of each Parent Party under the JV Agreements to use a portion of its total allocated capacity in the Y3 Facility, the Y4 Facility and from the JV Space in the Y5 Facility to cause to be manufactured Proprietary NAND Flash Memory Products, subject to the conditions and limitations set forth in the JV Agreements, are hereby extended to the JV Space in the New Y2 Facility.
Alternative use of allotted capacity. For the avoidance of doubt, any alternative use of a Party’s allotted manufacturing capacity for JV BiCS Products within the New Y2 Facility will be as permitted in, and subject to and governed by the terms of, the applicable JV’s JV Master Agreement.
Alternative use of allotted capacity. Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(A) BiCS Products. For the purposes of the JV Agreements, utilization of allotted manufacturing capacity in the Yokkaichi Facility for BiCS Products will not be treated as an alternative use of allotted capacity.
Alternative use of allotted capacity. Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 2 Exhibit 10.37 FOIA Confidential Treatment Requested Execution Version (A)
