Exhibit Q-1
NATIONAL GRID GENERAL PARTNERSHIP AND
AFFILIATED U.S. CORPORATIONS
FORM OF
SECOND AMENDED AND RESTATED FEDERAL AND
STATE INCOME TAX ALLOCATION AGREEMENT
This agreement (the "Second Amended and Restated Tax Allocation Agreement")
made as of [Insert Date], among National Grid General Partnership, a Delaware
general partnership ("GP"); National Grid US LLC, a Delaware limited liability
company ("NGUSLLC"); National Grid Holdings, Inc., a Delaware corporation ("NG
Holdings"); National Grid USA, a Delaware corporation; New England Power
Company, a Massachusetts corporation ("NEP"); Massachusetts Electric Company, a
Massachusetts corporation ("Mass Electric"); The Narragansett Electric Company,
a Rhode Island corporation ("Narragansett"); Granite State Electric Company, a
New Hampshire corporation ("Granite"); Nantucket Electric Company, a
Massachusetts corporation ("Nantucket"); New England Electric Transmission
Corporation, a New Hampshire corporation ("NEET"); New England
Hydro-Transmission Corporation, a New Hampshire corporation ("NEHTC"); New
England Hydro-Transmission Electric Company, Inc., a Massachusetts corporation
("NEHTEC"); New England Hydro Finance Company, Inc., a Massachusetts corporation
("XXXX"); Wayfinder Group, Inc., a Massachusetts corporation ("Wayfinder"); XXXX
Energy, Inc., a Massachusetts corporation ("XXXX Energy"); NEWHC, Inc., a
Massachusetts corporation ("NEWHC"); National Grid USA Service Company, Inc., a
Massachusetts corporation ("NG Service"); XXXX Communications, Inc., a
Massachusetts corporation ("NEESCom"); XXXX Telecommunications Corp., a
Massachusetts corporation ("XXXX Telecom"); New England Energy, Incorporated, a
Massachusetts corporation ("NEEI"); EUA Energy Investment Corporation
("EUAEIC"), a Massachusetts corporation; EUA Bioten, Inc. ("EUAB"), a
Massachusetts corporation; National Grid Transmission Services Corporation
("NGTSC"), a Massachusetts corporation; Niagara Mohawk Holdings, Inc., a New
York corporation ("NiMo"); Niagara Mohawk Power Corporation, a New York
corporation ("Niagara Mohawk"); NM Uranium Inc., a Texas corporation ("NM
Uranium"); HCE Pepperell, Inc., a New York Corporation ("HCE Pepperell"); NM
Receivables Corporation II, a New York corporation ("NM Receivables"); NM
Properties, Inc., a New York corporation ("NM Properties"); Xxxxxx Pointe, Inc.,
a New York corporation ("Hudson Pointe"); Upper Xxxxxx Development, Inc., a New
York corporation ("Upper Hudson"); Riverview, Inc., a New York corporation
("Riverview"); Xxxxxx Park, Inc., a New York corporation ("Xxxxxx Park"); Salmon
Shores, Inc., a New York corporation ("Salmon Shores"); Land Management &
Development, Inc., a New York corporation ("Land Management"); Landwest, Inc., a
New York corporation ("Landwest"); OProp Co. Inc., a New York corporation
("OProp"); Xxxxxxxx Acres, Inc., a New York corporation ("Xxxxxxxx"); Opinac
North America, Inc., a Delaware corporation ("Opinac"); and Niagara Mohawk
Energy, Inc., a Delaware corporation ("NM Energy")(each, a "Member").
W I T N E S S E T H T H A T:
WHEREAS, the term "Affiliates" as used herein shall be deemed to refer to
NGUSLLC, NEP, Mass Electric, Narragansett, Granite, Nantucket, NEET, Wayfinder,
XXXX Energy, NEWHC, NG Service, NEESCom, XXXX Telecom, NEEI, EUAEIC, EUAB,
NGTSC, NiMo, Niagara Mohawk, NM Uranium, HCE Pepperell, NM Receivables, NM
Properties, Xxxxxx Pointe, Upper Xxxxxx, Riverview, Xxxxxx Park, Salmon Shores,
Land Management, Landwest, OProp, Xxxxxxxx, Opinac, and NM Energy. The
Affiliates together with GP, National Grid USA, and NG Holdings as a collective
taxpaying unit are sometimes referred to as the "Group" and, each individually
as a "Group Member."
WHEREAS, NG Holdings is a wholly owned direct subsidiary of GP.
WHEREAS, NGUSLLC is a wholly-owned direct subsidiary of GP that is
disregarded as an entity separate from GP for U.S. federal income tax purposes
pursuant to Treasury Regulation Section 301.7701-3(b).
WHEREAS, GP owns directly or indirectly at least 80 percent of the issued
and outstanding shares of each class of voting common stock and at least 80
percent of the total value of the stock of each of the Affiliates, NG Holdings,
and National Grid USA; the Group is an affiliated group within the meaning of
Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code"), of
which GP is the common parent; and the Group presently participates in the
filing of a consolidated federal income tax return.
WHEREAS, GP owns directly or indirectly less than 80 percent of the total
voting power or less than 80 percent of the total value of the stock of each of
NEHTC, NEHTEC and XXXX (the "Hydro Group"), but certain Group Members file
certain unitary state tax returns with the Hydro Group,
WHEREAS, the Group and the Hydro Group executed a Federal and State Income
Tax Allocation Agreement dated as of December 28, 2000 (the "Tax Allocation
Agreement").
WHEREAS, the Group and the Hydro Group executed an Amended and Restated
Federal and State Income Tax Allocation Agreement dated as of December 20, 2001
(the "Amended and Restated Tax Allocation Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, GP, NG Holdings, National Grid USA, the Affiliates and the
Hydro Group agree to allocate tax liability as follows:
I. Allocation Procedures for Federal Income Tax Liabilities
A. General Rule
Step 1 - The federal consolidated tax liability of the Group (not including
any liability for alternative minimum tax) shall be apportioned among the Group
Members in accordance with the ratio that each Group Member's separate taxable
income bears to the sum of the separate taxable incomes of all Group Members
having taxable income.
Step 2 - An additional liability amount will be allocated to Group Members
equal to 100% of the excess of the Group Member's separate tax liability over
the consolidated tax liability of the Group allocated to the Group Member under
Step 1 (an "Excess Separate Tax"); provided, however, the amount of any Excess
Separate Tax allocated to a Group Member under this Step 2 shall be reduced by
such Group Member's proportional share of the losses, credits, and/or other tax
benefits of GP, NG Holdings, and National Grid USA which are not attributable to
(i) acquisition related debt and (ii) any other items related to an acquisition
of a Group Member or another corporation by a Group Member (including proposed
transactions that were not consummated or were abandoned), and not charged or
allocated to a Group Member other than GP, NG Holdings, or National Grid USA,
based upon the ratio that each Group Member's Excess Separate Tax bears to the
aggregate Excess Separate Tax allocation to all the Group Members (in each case,
prior to reduction by this proviso).
Step 3 - The total of the amounts allocated under Step 2 is credited
pursuant to a consistent method to those Group Members who had losses, credits
or other net tax benefits included in the consolidated return, (referred to as
"corporate tax benefits") as follows; provided, however, that for the purposes
of this Step 3, GP, NG Holdings, and National Grid USA shall be deemed to have
corporate tax benefits only with respect to that portion of their losses,
credits or other tax benefits that arise from taking into account items
attributable to acquisition related debt and any other items related to the
acquisition of a Group Member or another corporation by a Group Member
(including proposed transactions that were not consummated or were abandoned),
and not charged or allocated to a Group Member other than GP, NG Holdings or
National Grid USA.
(a) If all corporate tax benefits are fully utilized to reduce the amount
of tax due in the consolidated return of the Group, each Group Member having
corporate tax benefits will be allocated the proportionate value thereof. The
value of net operating losses shall generally be determined by applying the then
current corporate income tax rate to the amount of the loss, and the value of a
credit shall generally equal 100% of the credit utilized.
(b) If the total of the corporate tax benefits are not fully utilized in
the consolidated return of the Group, then the benefits arising from the
inclusion of negative taxable incomes in the consolidated return shall be
recognized and paid prior to the benefits arising from credits or other
benefits.
(c) If the corporate tax benefits attributable to Group Members with
negative taxable incomes are not fully utilized in the consolidated return of
the Group, the benefit allocated to each such Group Member shall be in
proportion to their respective negative taxable incomes.
(d) If the corporate tax benefits attributable to credits or other net tax
benefits are not fully utilized in the consolidated return of the Group, the
benefits arising from credits shall be recognized and paid prior to the benefits
arising from other benefits.
(e) If the corporate tax benefits attributable to Group Members with
credits are not fully utilized in the consolidated return of the Group, the
benefit allocated to each Group Member shall be in proportion to their
respective credits.
(f) If the corporate tax benefits attributable to Group Members with other
benefits are not fully utilized in the consolidated return of the Group, the
benefit allocated to each Group Member shall be in proportion to their
respective other benefits.
Step 4 - If the total consolidated tax liability results in an alternative
minimum tax ("AMT") liability, as imposed by Section 55(a) of the Code, then any
consolidated AMT will be allocated to the Group Members based upon their
proportionate amounts of AMT.
Step 5 - If the total consolidated return liability results in consolidated
minimum tax credit utilization, the consolidated minimum tax credit shall be
tentatively allocated to each Group Member participating in the consolidated
return in an amount equal to the lesser of (1) each Group Member's separate
Minimum Tax Credit Carryforward or (2) the excess of such Group Member's
allocated regular tax over its separate AMT. Minimum Tax Credit Carryforward for
this purpose is the sum of the annual amounts of consolidated AMT allocated to a
Group Member in prior years less the sum of the consolidated minimum tax credits
allocated to that Group Member in prior years. If the total of such tentative
allocations exceeds the consolidated minimum tax credit utilized in the current
taxable year, then the difference between the total of the tentative allocations
and the consolidated minimum tax credit utilized for the taxable year shall be
allocated as a negative amount to each Group Member in proportion to that Group
Member's tentative allocation to the combined total of all such amounts. If the
total of the tentative allocations is less than the consolidated minimum tax
credit utilized, the difference between the consolidated minimum tax credit
utilization and the total of the tentative allocations shall be allocated to
each Group Member in proportion to that Group Member's remaining Minimum Tax
Credit Carryforward to the combined total of such carryforwards. The
consolidated minimum tax credit allocated to each Group Member for the taxable
year will equal the sum of the amounts allocated in the two step computation.
Step 6 - Under no circumstances shall the amount of tax or other liability
allocated to a Group Member under this Article I exceed such Group Member's
separate tax liability.
B. Unused Corporate Tax Benefits
A Group Member that is entitled to payment for a corporate tax benefit, but
does not receive such payment because of the rules in Step 3 shall retain such
right for the future to the extent that such benefit can be applied subsequently
against the consolidated tax liability. Uncompensated corporate tax benefits
arising from negative taxable income shall have priority over the benefits
attributable to excess tax credits.
X. XXXX Rule
Notwithstanding any other provisions herein, NEET shall be paid, in lieu of
any payments for its corporate tax losses, credits, or other net tax benefits,
the amount, if any, by which the consolidated tax liability determined without
the inclusion of NEET's corporate tax benefits in the consolidated return
exceeds the actual consolidated tax liability, all in accordance with the Phase
I Terminal Facility Support Agreement, dated as of December 1, 1981, and amended
as of June 1, 1982, November 1, 1982 and January 1, 1986.
D. Tax Adjustments
In the event of any adjustments to the tax returns of any of the Group
Members (by reason of an amended return, a claim for refund or an audit by the
Internal Revenue Service), the tax liability, if any, of each of the Group
Members under Section A of this Article I shall be redetermined to give effect
to any such adjustment as if it had been made as part of the original
computation of tax liability, and payments by or to the appropriate Group
Members shall be made within 120 days after any such payments are made or
refunds are received, or, in the case of contested proceedings, within 120 days
after a final determination of the contest, in each case, as specified by NG
Service. Interest and penalties, if any, attributable to such an adjustment
shall be paid by or to (in the case of interest accruing with respect to a
refund) each Group Member, in proportion to the increase or decrease in such
Group Member's separate return tax liability computed under Section A of this
Article I. In any situation in which the Group's tax liability is adjusted by a
revenue agent's report or a court settlement and an item-by-item modification is
not made, the Group shall consult its accountants for assistance in determining
the appropriate Group Member giving rise to such adjusted tax liability. If
responsibility cannot be determined, then the penalties and interest shall be
allocated to all Group Members employing the same method used to allocate
liability for taxes under this Article I.
E. Earnings and Profits
For purposes of determining the earnings and profits of each Group Member,
the tax liability of the Group shall be allocated among the Group Members in
accordance with Treasury Regulation Sections 1.1552-1(a)(1) and 1.1502-33(d)(3).
II. Allocation Procedures for State Income Tax Liabilities
A. Massachusetts Combined Returns
The combined state tax liability shall be allocated to each Member
participating in the combined return in proportion to the state taxable income,
whether positive or negative, of each such Member. For this purpose, state
taxable income is determined after application of each Member's separate
apportionment percentage and net operating loss deduction. Those Members with a
positive allocation shall pay the amount allocated and those Members with a
negative allocation shall receive payment of their corporate tax credits. If the
total positive tax allocation is less than the total corporate tax credits, the
positive allocation shall be paid on a pro rata basis to those Members with
corporate tax credits. No Member shall be allocated a state tax which is greater
than its state tax liability had it filed a separate return.
B. New Hampshire Unitary Business Profits Tax Returns
The combined unitary business profits tax liability shall be allocated to
each Member included in the unitary return in accordance with the following
principles:
1. NEET and the Hydro Group will be allocated a total business profits
tax liability equal to the difference in the combined business profits
taxes, before reduction for any available tax credits, computed with
and without the inclusion of such Members in the unitary return. The
business profits tax of NEET and the Hydro Group shall be allocated
first to NEET in an amount equal to the difference in the combined
unitary tax computed with and without its inclusion, with the balance,
if any, assigned to NEHTC.
2. The balance of the combined unitary tax, before reduction for any
available tax credits, shall be allocated to the remaining Group
Members who are included in the New Hampshire Unitary Business Profits
Tax Return in proportion to each Group Member's separate company
business profits tax to the combined total of such separate company
taxes.
3. Any available tax credits allowed, on a separate company basis, to a
particular Member included in the unitary return shall be applied to
reduce the combined unitary tax allocated to that particular Member.
The excess of any available tax credits allowed in the combined return
over the amount applied to reduce a particular Member's liability,
shall be used to reduce the allocated unitary tax liability of the
other Members included in the unitary return on a pro rata basis. To
the extent a Member's allocated unitary tax liability is reduced by
application of any available tax credits attributable to another
Member included in the unitary return, the amount so reduced shall be
paid to such other Member.
4. For purposes of this Section B of Article II, the separate company
business profits tax is to be determined only for those Members with
tax nexus in New Hampshire and is to be computed by multiplying each
such Member's separately apportioned state taxable income by the
applicable state tax rate. The separate company business profits tax
cannot be less than zero.
C. Vermont Consolidated Income Tax Returns
The consolidated corporate income tax liability shall be allocated to each
Member included in the consolidated return in proportion to the Vermont net
taxable income before apportionment, whether positive or negative, of each such
Member. Those Members with a positive allocation shall pay the amount allocated
and those Members with a negative allocation shall receive payment of their
corporate tax credits. If the total positive tax allocation is less than the
total corporate tax credits, the positive allocation shall be paid on a pro rata
basis to those Members with corporate tax credits. No Member shall be allocated
a state tax which is greater than its state tax liability had it filed a
separate return.
D. Connecticut Combined Business Tax Returns
The tax on combined net income shall be allocated to each Member
participating in the combined return in proportion to the Connecticut net income
after apportionment, whether positive or negative, of each such Member. The tax
on combined minimum tax base shall be allocated to each Member in proportion to
such Member's separate minimum tax base. The tax on the number of Members
included in the combined return and the combined return preference tax shall be
allocated equally among the Members participating in the return. Those Members
with a positive allocation shall pay the amount allocated and those Members with
a negative allocation shall receive payment of their corporate tax credits. No
Member shall be allocated a state tax which is greater than its state tax
liability had it filed a separate return.
E. Other State Consolidated, Combined or Unitary Returns
The consolidated, combined or unitary tax liability shall be allocated to
each Member included in a consolidated, combined or unitary income tax return in
accordance with the procedures set forth in Section A of Article I above. Only
Members with a tax nexus in a particular state shall be allocated a portion of
such state's income tax liability.
F. Tax Adjustments
In the event of any adjustments to the tax returns of any consolidated,
combined or unitary group covered by this Article II (by reason of an amended
return, a claim for refund or an audit by any state taxing authority), the
liability, if any, of each Member included in such consolidated, combined or
unitary return shall be redetermined to give effect to any such adjustment as if
it had been made as part of the original computation of tax liability, and
payments by or to the appropriate Members shall be made within 120 days after
any such payments are made or refunds are received, or, in the case of contested
proceedings, within 120 days after a final determination of the contest, in each
case, as specified by NG Service. Interest and penalties, if any, attributable
to such an adjustment shall be paid by or to (in the case of interest accruing
with respect to a refund) each Member included in the consolidated, combined or
unitary return in proportion to the increase or decrease, as the case may be, in
such Member's share of the consolidated, combined or unitary business profits
tax liability as determined in accordance with this Article II. In any situation
in which the consolidated, combined or unitary tax liability is adjusted and an
item-by-item modification is not made, the Members of such consolidated,
combined or unitary group shall consult its accountants for assistance in
determining the appropriate Member giving rise to such adjusted tax liability.
If responsibility cannot be determined, then the penalties and interest shall be
allocated to all Members included in the consolidated, combined or unitary
return employing the same method used to allocate liability for taxes under this
Article II.
G. Limitation on Tax Liability Allocation of each Member
Under no circumstances shall the amount of tax or other liability allocated
to a Member under this Article II exceed such Member's separate tax liability.
H. Restriction Pertaining to Reimbursements of Certain Tax Benefits
Notwithstanding the requirements of this Article II, GP, NG Holdings, and
National Grid USA are not entitled to be reimbursed for any corporate tax
benefits or losses other than those arising from (1) acquisition related debt
and (2) any other items related to the acquisition of a Member included in a
consolidated, combined or unitary return described in this Article II or another
corporation by such a Member (including proposed transactions that were not
consummated or were abandoned), and not charged or allocated to a Member other
than GP, NG Holdings or National Grid USA. Adjustments for non-reimbursable tax
benefits of GP, NG Holdings, and National Grid USA similar to the adjustments
provided under Step 2 and Step 3 in Section A of Article I shall be made with
respect to any payment made or required pursuant to this Article II.
III. Administration
A. Agency
Any actions to be taken by GP under this Second Amended and Restated Tax
Allocation Agreement may be delegated to, and performed by, such designee as
deemed appropriate by GP. GP designates NG Service as its agent with respect to
any determination relating to any payments required under this Second Amended
and Restated Tax Allocation Agreement and the Members shall make payments in
accordance with this Second Amended and Restated Tax Allocation Agreement as
specified by NG Service; provided however, that any amounts owed to GP pursuant
to Step 3 of Article I or Article II (subject to the limitations provided in
Section H thereof) relating to GP's corporate tax benefits shall be paid to
NGUSLLC. All amounts received by any Member designated by NG Service pursuant to
this Section A of Article III to receive such amount that are subsequently
forwarded to GP and/or to any other Member pursuant to this Second Amended and
Restated Tax Allocation Agreement (other than amounts received by NGUSLLC
relating to corporate tax benefits of GP), shall be treated as received by such
Member solely in its capacity as agent for GP and/or such other Member.
B. Payments
Payments made to a Member pursuant to Step 3 in Section A of Article I or
any similar amount paid pursuant to Article II shall be made at approximately
the same time the related tax payments are made to the appropriate tax
authorities. Journal entries recording payments made pursuant to this Second
Amended and Restated Tax Allocation Agreement will be made in the same month in
which such payments are made.
C. Member Tax Information
GP or any person designated by GP shall be responsible for the preparation
of any tax return and any calculation required by this Second Amended and
Restated Tax Allocation Agreement (including estimated taxes). The Members shall
submit the tax information requested by GP, in the manner and by the date
requested, in order to enable GP to calculate the amounts payable by the Members
pursuant to this Second Amended and Restated Tax Allocation Agreement.
D. Settlement Authority
GP or, with respect to any combined consolidated or unitary tax return, any
person designated by GP pursuant to Section A of this Article III, shall have
sole authority, to the exclusion of all other Members, to agree to any
adjustment proposed by the Internal Revenue Service or any other taxing
authority with respect to items of income, deductions or credits, as well as
interest or penalties, attributable to any Member notwithstanding that such
adjustment may increase the amounts payable by Members under this Second Amended
and Restated Tax Allocation Agreement.
E. Elections
GP and the other Members shall execute and file such consents, elections
and other documents that may be required or appropriate for the proper filing of
a consolidated federal income tax return and any consolidated, combined or
unitary state tax return, in each case, as determined by GP or, with respect to
any combined consolidated or unitary tax return, any person designated by GP
pursuant to Section A of this Article III, in such person's sole discretion.
IV. Subsidiaries of Members
If at any time any of the Members acquires or creates one or more
subsidiary corporations that are included within the Group of which GP is the
common parent within the meaning of Code Section 1504 or the Hydro Group, such
corporations shall be subject to this Second Amended and Restated Tax Allocation
Agreement and all references to the Group Members or Members herein shall be
interpreted to include such corporations.
V. Successors and Termination of Affiliates
A. General
This Second Amended and Restated Tax Allocation Agreement shall be binding
on and inure to the benefit of any successor, by merger, acquisition of assets
or otherwise ("Successor"), to any of the parties hereto (including but not
limited to any Successor of GP, National Grid USA, NG Holdings or any of the
Affiliates succeeding to the tax attributes of such corporation under Section
381 of the Code) to the same extent as if such Successor had been an original
party to this Second Amended and Restated Tax Allocation Agreement.
B. Termination of Affiliates
1. In the event that a Member ceases to be included within the Group or
included in a state combined, consolidated or unitary tax group
addressed by this Agreement (a "Deconsolidation"), the rights and
obligations of such Member and each other member shall survive, but
only with respect to taxable years including or ending on or before
the date of such Deconsolidation.
2. With respect to any Member that contractually assumed any liability
for taxes by indemnity or otherwise (an "Indemnifying Member") of any
corporation that was included within the Group within the meaning of
Code Section 1504 (or included in a state combined, consolidated or
unitary tax group addressed by this Agreement) at any time on or after
January 1, 2000 that underwent a Deconsolidation prior to the date
hereof (the "Indemnified Corporation"), the tax liability of such
Indemnifying Member with respect to the Indemnified Corporation (and
any other related rights or obligations) shall be determined as if
such Indemnified Corporation were a Group Member or Member, as the
case may be. Where more than one Member is an Indemnifying Member with
respect to an Indemnified Corporation, the Indemnifying Members may
specify in writing each such Indemnifying Member's share of any
resulting tax liability (or any other matter addressed by this
Agreement).
VI. Effective Date
The Tax Allocation Agreement shall apply with respect to any payments,
adjustments and any other matters addressed therein occurring prior to December
20, 2001. The Amended and Restated Tax Allocation Agreement shall apply to any
payments, adjustments and any other matters addressed herein occurring on or
after December 20, 2001 and prior to the date hereof. This Second Amended and
Restated Tax Allocation Agreement shall apply to any payments, adjustments and
any other matters addressed herein occurring on or after the date hereof.
VII. Termination Clause
This Second Amended and Restated Tax Allocation Agreement shall continue in
effect, unless all of the Members agree in writing to terminate this Second
Amended and Restated Tax Allocation Agreement prior to the end of the taxable
year. Notwithstanding any termination, this Second Amended and Restated Tax
Allocation Agreement shall continue in effect with respect to any payment or
refunds due for all taxable periods prior to termination.
VIII. Notices
Any and all notices, requests or other communications hereunder shall be
given in writing (a) if to GP, to Attention: Manager of Taxes, Facsimile Number:
(000) 000-0000 and (b) if to any other person, at such other address as shall be
furnished by such person by like notice to the other parties.
IX. Expenses
Each party hereto shall pay its own expenses incident to this Second
Amended and Restated Tax Allocation Agreement and the transactions contemplated
hereby, including all legal and accounting fees and disbursements.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
set their hands this [Insert date].
[signature blocks]
