RELEVANT
TAX MATTER, THEN ANY RELEVANT AMOUNT PAYABLE BY GENWORTH OR A GENWORTH COMPANY
PURSUANT TO THIS AGREEMENT WILL BE DETERMINED AS IF SUCH PROPOSAL HAD BEEN
ACCEPTED.
(E)
IF A GE GROUP COMPANY OTHERWISE ACTS
UNREASONABLY (OR UNREASONABLY FAILS TO ACT) IN DEALING WITH ANY RELEVANT TAX
MATTER, THEN ANY RELEVANT AMOUNT PAYABLE BY GENWORTH OR A GENWORTH COMPANY
PURSUANT TO THIS AGREEMENT WILL BE REDUCED TO THE EXTENT THAT THE UNREASONABLE
ACT (OR FAILURE TO ACT) OF THAT GE GROUP COMPANY HAS INCREASED THE AMOUNT THE
SUBJECT OF THE PAYMENT.
3.2
CONTROL BY GENWORTH
Except as provided in section 3.1, Genworth will have exclusive right to
control:
(A)
THE PREPARATION AND FILING OF ALL TAX
RETURNS, FORMS OR STATEMENTS;
(B)
ANY DEALINGS WITH TAX ASSESSMENTS;
(C)
ANY AUDIT OR OTHER ADMINISTRATIVE OR
JUDICIAL PROCEEDINGS REGARDING ANY TAXES PAYABLE; AND
(D)
ANY OTHER MATTER THAT MAY RESULT IN ANY TAX
LIABILITY,
of the Genworth Companies.
7
4
DISPUTES
If a dispute arises between the parties with respect to this agreement and the
parties are unable to reach an agreement on the matter in dispute, then any
party to the dispute may refer the dispute to the Tax Expert for determination.
(A)
THE TAX EXPERT SHALL BE DEEMED TO ACT AS AN
EXPERT AND NOT AS AN ARBITRATOR.
(B)
THE TAX EXPERT SHALL HAVE THE RIGHT TO CALL
FOR INFORMATION FROM ANY PARTY RELEVANT TO ANY DETERMINATION IT MAY BE REQUIRED
TO MAKE.
(C)
EACH OF THE PARTIES SHALL BE ENTITLED TO
SUBMIT WRITTEN REPRESENTATIONS TO THE TAX EXPERT IN CONNECTION WITH THE MATTER
OR MATTERS IN DISPUTE.
(D)
THE PARTIES SHALL PROVIDE TO THE TAX EXPERT
ALL SUCH INFORMATION AND DOCUMENTATION AS IT MAY REASONABLY REQUIRE.
(E)
THE DECISION OF THE TAX EXPERT IS, IN THE
ABSENCE OF MANIFEST ERROR, TO BE CONCLUSIVE AND BINDING ON THE PARTIES FOR THE
PURPOSES OF DETERMINING THE DISPUTE AND THE TIME FOR ANY PAYMENT.
(F)
THE COSTS AND EXPENSES IN CONNECTION WITH
THE REFERENCE WILL BE BORNE BY THE PARTIES IN A MANNER DETERMINED BY THE TAX
EXPERT (AND EITHER PARTY MAY REQUEST THAT DETERMINATION) AND IN THE ABSENCE OF
SUCH A DETERMINATION WILL BE BORNE BY THE PARTIES TO THE DISPUTE EQUALLY.
5
GST
(A)
ANY REFERENCE IN THIS CLAUSE OR OTHERWISE IN
THIS AGREEMENT TO A TERM DEFINED OR USED IN A NEW TAX SYSTEM (GOODS AND SERVICES
TAX) ACT 1999 IS, UNLESS THE CONTEXT INDICATES OTHERWISE, A REFERENCE TO THAT
TERM AS DEFINED OR USED IN THAT ACT.
(B)
ANY AMOUNT REFERRED TO IN THIS AGREEMENT
WHICH IS RELEVANT IN DETERMINING A PAYMENT TO BE MADE BY ONE OF THE PARTIES TO
THE OTHER IS EXCLUSIVE OF ANY GST UNLESS INDICATED OTHERWISE.
(C)
IF GST IS PAYABLE ON A SUPPLY MADE UNDER OR
IN CONNECTION WITH THIS AGREEMENT THEN THE CONSIDERATION PROVIDED FOR THAT
SUPPLY IS INCREASED BY THE RATE AT WHICH THAT GST IS IMPOSED. THE ADDITIONAL
CONSIDERATION IS PAYABLE AT THE SAME TIME AS THE CONSIDERATION