AFTER THE CLOSING WITHOUT THE CONSENT OF THE OTHER PARTY, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD, OR RESULTING FROM ANY CLAIM, SUIT, ACTION,
LITIGATION OR OTHER PROCEEDING TAKING PLACE AFTER THE CLOSING IN WHICH THE OTHER
PARTY WAS NOT PERMITTED AN OPPORTUNITY TO REASONABLY PARTICIPATE.
5.13.
VALUE ADDED TAX.
(A)
ALL AMOUNTS EXPRESSED IN THIS AGREEMENT AS
BEING PAYABLE BY OR TO THE U.K. BUYER ARE EXPRESSED EXCLUSIVE OF ANY VALUE ADDED
TAX WHICH MAY BE CHARGEABLE THEREON AND THE AMOUNT OF ANY SUCH VALUE ADDED TAX
SHALL BE PAYABLE IN ADDITION THERETO SUBJECT AS HEREINAFTER PROVIDED.
(B)
IF THE U.K. BUYER SO REQUESTS, THE SELLERS
AND THE U.K. BUYER SHALL USE ALL REASONABLE ENDEAVORS TO SECURE THAT THE
CONDITIONS OF ARTICLE 5(1) OF THE VALUE ADDED TAX (SPECIAL PROVISIONS) ORDER
1995 SI 1268 AND OF SECTION 49 OF THE VALUE ADDED TAX ACT 1994 ARE FULFILLED SO
THAT THE SALE OF THE ASSETS HEREUNDER IS PROPERLY TREATED AS NEITHER A SUPPLY OF
GOODS NOR A SUPPLY OF SERVICES FOR THE PURPOSES OF VALUE ADDED TAX AND THE
PROVISIONS OF SECTIONS 5.13(C) TO (E) SHALL APPLY ACCORDINGLY.
(C)
THE SELLERS SHALL ON THE CLOSING DATE
DELIVER TO THE U.K. BUYER ALL RECORDS REFERRED TO IN SECTION 49(1) OF THE VALUE
ADDED TAX ACT 1994 AND SHALL NOT MAKE ANY REQUEST TO HM CUSTOMS & EXCISE FOR
SUCH RECORDS TO BE RETAINED BY THE SELLERS AND THE U.K. BUYER HEREBY
36
UNDERTAKES TO PRESERVE SUCH RECORDS FOR SUCH PERIODS AS MAY BE REQUIRED BY LAW
AND SHALL DURING THAT PERIOD AFFORD REASONABLE ACCESS TO THEM AT THE REQUEST OF
THE SELLERS.
(D)
IN THE EVENT THAT HM CUSTOMS & EXCISE
DETERMINE THAT VALUE ADDED TAX IS CHARGEABLE ON THE SALE OF THE ASSETS HEREUNDER
OR ANY OF THEM THEN THE SELLERS SHALL IMMEDIATELY NOTIFY THE U.K. BUYER OF SUCH
DETERMINATION AND THE U.K. BUYER AGREES THAT SUCH VALUE ADDED TAX SHALL BE
PAYABLE IN ADDITION TO THE SUM SPECIFIED IN SECTION 2 AND THE U.K. BUYER SHALL
(AGAINST PRODUCTION BY THE SELLERS OF TAX INVOICES IN RESPECT THEREOF) PAY THE
AMOUNT OF ANY SUCH VALUE ADDED TAX AND ANY INTEREST AND PENALTIES IN RESPECT OF
THE SAME FORTHWITH TO THE SELLERS BUT SUCH PAYMENT SHALL BE WITHOUT PREJUDICE TO
THE RIGHT OF THE U.K. BUYER UNDER THIS AGREEMENT TO CALL UPON THE SELLERS TO
MAKE OR JOIN AN APPEAL AGAINST THE AFORESAID DETERMINATION SUBJECT TO THE
PROVISIONS OF SECTION 5.13(E) BELOW.
FOR THE AVOIDANCE OF DOUBT, THE U.K. BUYER
SHALL NOT BE LIABLE TO PAY ANY AMOUNT IN RESPECT OF INTEREST AND PENALTIES WHICH
ARE INCURRED SOLELY AS A RESULT OF A DEFAULT BY THE SELLERS IN PAYING ANY AMOUNT
IN RESPECT OF VAT RECEIVED FROM THE U.K. BUYER TO HM CUSTOMS AND EXCISE.
(E)
THE U.K. BUYER AT ITS SOLE DISCRETION (BUT
AFTER CONSULTATION WITH THE SELLERS) MAY WITHIN TEN DAYS OF NOTIFICATION BY THE
SELLERS OF A DETERMINATION HAVING BEEN MADE BY HM CUSTOMS & EXCISE DISPUTE