IN DETERMINING
WHETHER THE SURRENDER OF AN INCREASED LOSS WOULD BE PREJUDICIAL TO THE RELEVANT
MEMBER(S) OF ITS GROUP PURSUANT TO 3.7 ABOVE.
3.9
IN THE EVENT THAT THE AGGREGATE AMOUNT OF UK CORPORATION TAX SAVED
BY THE REMAINING SUPERGROUP MEMBERS AS A RESULT OF ANY LOSSES SURRENDERED TO ANY
OF THEM BY A UK SUBSIDIARY PURSUANT TO THIS CLAUSE 3 EXCEEDS THE AMOUNT OF UK
CORPORATION TAX SAVED BY THAT UK SUBSIDIARY AS A RESULT OF ANY LOSSES
SURRENDERED TO IT BY ANY REMAINING SUPERGROUP MEMBERS, GENWORTH SHALL PAY TO
THAT UK SUBSIDIARY AN AMOUNT EQUAL TO THAT EXCESS.
3.10
IN THE EVENT OF ANY DISPUTE ARISING UNDER THIS CLAUSE 3 EITHER AS
TO THE AMOUNT OF LOSSES THAT ANY COMPANY HAS OR IS ABLE TO VALIDLY SURRENDER TO
ANOTHER OR AS TO WHETHER THE SURRENDER OF A PARTICULAR LOSS WOULD BE PREJUDICIAL
FOR THE PURPOSES OF CLAUSE 3.7, AN APPLICATION SHALL BE MADE TO THE PRESIDENT OF
THE INSTITUTE OF CHARTERED ACCOUNTANTS IN ENGLAND AND WALES FOR THE TIME BEING
FOR HIM OR HER TO APPOINT A SUITABLY QUALIFIED AND INDEPENDENT FIRM OF
ACCOUNTANTS TO RESOLVE SUCH DISPUTE (THE "APPOINTED FIRM").
THE PURPOSE OF THE
REFERENCE OF THE DISPUTE TO THE APPOINTED FIRM SHALL BE TO DETERMINE THE AMOUNT
OF LOSSES THAT THE PARTICULAR COMPANY (OR COMPANIES) HAS OR IS ABLE TO VALIDLY
SURRENDER TO ANOTHER OR AS TO WHETHER THE SURRENDER OF A PARTICULAR LOSS WOULD
11
BE PREJUDICIAL FOR THE PURPOSES OF CLAUSE 3.7 ABOVE AS APPROPRIATE.
FOR THESE
PURPOSES, THE APPOINTED FIRM SHALL BE DEEMED TO ACT AS AN EXPERT AND NOT AS AN
ARBITRATOR, AND ACCORDINGLY THE PROVISIONS OF THE ARBITRATION ACT 1979 SHALL NOT
APPLY.
THE DECISION OF THE APPOINTED FIRM AS TO THE MATTER REFERRED TO IT
SHALL, EXCEPT IN THE CASE OF MANIFEST ERROR, BE CONCLUSIVE AND BINDING ON THE
PARTIES.
THE APPOINTED FIRM'S COSTS SHALL BE BORNE BY THE PARTIES ON A JUST AND
REASONABLE BASIS AS DECIDED BY THE APPOINTED FIRM BEARING IN MIND ITS
CONCLUSIONS.
4.
UK VAT GROUP
4.1
UPON THE TRIGGER DATE GE SHALL PROCURE THAT GE CAPITAL BANK
LIMITED PROMPTLY APPLY TO CUSTOMS & EXCISE UNDER SECTION 43C OF VATA 1994 TO
REMOVE SUCH OF THE EUROPEAN SUBSIDIARIES AS ARE MEMBERS OF THE VAT GROUP FROM
THE VAT GROUP AND WILL PROCURE THAT GENWORTH IS KEPT INFORMED OF THE PROGRESS OF
THE APPLICATION AND IS PROVIDED WITH COPIES OF ALL CORRESPONDENCE.
4.2
GE SHALL, WITHIN THIRTY DAYS OF RECEIVING NOTICE OF THE EXIT DATE,
PROCURE THE DELIVERANCE TO GENWORTH OF A STATEMENT, TOGETHER WITH REASONABLE
EXPLANATORY DETAILS, WORKINGS AND CALCULATIONS (THE "VAT STATEMENT") CERTIFYING
WHETHER THE UK SUBSIDIARIES HAVE, IN AGGREGATE, A NOTIONAL VAT LIABILITY OR A
NOTIONAL VAT CREDIT FOR THE RELEVANT VAT PERIOD AND, IF SO, THE AMOUNT OF SUCH
AGGREGATE NOTIONAL VAT LIABILITY OR NOTIONAL VAT CREDIT.
4.3
GENWORTH SHALL PROCURE THAT THE EUROPEAN SUBSIDIARIES PROVIDE SUCH
INFORMATION AND ASSISTANCE AS GE OR ITS DULY AUTHORISED AGENT MAY REASONABLY
REQUIRE FOR