NATIONAL GRID GENERAL PARTNERSHIP AND
AFFILIATED U.S. CORPORATIONS
FORM OF
AMENDED AND RESTATED FEDERAL AND
STATE INCOME TAX ALLOCATION AGREEMENT
This agreement (the "Amended and Restated Tax Allocation Agreement") made as of December 20, 2001, 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; and National Grid Transmission Services Corporation ("NGTSC"), a Massachusetts corporation (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 NEP, Mass Electric, Narragansett, Granite,
Nantucket, NEET, Wayfinder, XXXX Energy, NEWHC, NG Service, NEESCom, XXXX Telecom, NEEI, EUAEIC, EUAB and NGTSC. The Affiliates
together with GP, NGUSLLC, 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, applicable with respect to taxable years ending prior to April 1, 2001 and the tax returns related thereto (the "Tax Allocation
Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, GP, NGUSLLC, 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, NGUSLLC, NG Holdings,
and/or National Grid USA which are not attributable to acquisition related debt 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, NGUSLLC, 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.
(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 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
alternative minimum tax.
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 alternative minimum tax ("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 franchise tax credit or other 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 franchise tax credit or other 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 franchise tax credit or other tax credits available, 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 franchise tax credit or other 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 the franchise tax credit or other 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, NGUSLLC, NG Holdings, and National Grid USA are not entitled to be
reimbursed for any corporate tax benefits or losses other than those arising from the acquisition debt and adjustments 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 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 Amended and Restated Tax Allocation Agreement and the Members shall make payments in accordance with
this 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 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 Section H of
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 Amended and Restated Tax Allocation Agreement will be made in the same month
in which such payments are made.
C. Member Tax Information
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 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
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 Group Members
If at any time any of the Group 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, such corporations shall be subject to this Amended
and Restated Tax Allocation Agreement and all references to the Group Members herein shall be interpreted to include such
corporations.
V. Successors
This 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, to any of the parties hereto (including but not limited to any successor of any Group Member
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 Amended and Restated Tax Allocation 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 the date hereof. This 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 Amended and Restated Tax Allocation Agreement shall continue in effect, unless all of the Members agree in writing to
terminate the Amended and Restated Tax Allocation Agreement prior to the end of the taxable year. Notwithstanding any termination,
this 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 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 20th day of December, 2001.
NATIONAL GRID GENERAL PARTNERSHIP NATIONAL GRID US LLC
By __________________________________________ By __________________________________________
Xxxx X. Xxxxxxxx, Tax Officer Xxxx X. Xxxxxxxx, Manager
NATIONAL GRID HOLDINGS, INC. NATIONAL GRID USA
By __________________________________________ By __________________________________________
Xxxx X. Xxxxxxxx, Treasurer Xxxx X. Xxxxxxxx, Vice President
NEW ENGLAND POWER COMPANY MASSACHUSETTS ELECTRIC COMPANY
By __________________________________________ By __________________________________________
Xxxx X. Xxxxxxxx, Vice President Xxxxxx X. La Fleur, President
THE NARRAGANSETT ELECTRIC COMPANY GRANITE STATE ELECTRIC COMPANY
By __________________________________________ By __________________________________________
Xxxxxx X. La Fleur, President Xxxxxx X. La Fleur, President
NANTUCKET ELECTRIC COMPANY NEW ENGLAND ELECTRIC TRANSMISSION CORPORATION
By __________________________________________ By __________________________________________
Xxxxxx X. La Fleur, President Xxxxxx Xxxxxxx, President
NEW ENGLAND HYDRO-TRANSMISSION CORPORATION NEW ENGLAND HYDRO-TRANSMISSION ELECTRIC COMPANY, INC.
By __________________________________________ By __________________________________________
Xxxxxx Xxxxxxx, President Xxxxxx Xxxxxxx, President
NEW ENGLAND HYDRO FINANCE COMPANY, INC. WAYFINDER GROUP, INC.
By __________________________________________ By __________________________________________
Xxxx X. Xxxxxxxx, President Xxxx X. Xxxxxxxx, President and Treasurer
XXXX ENERGY, INC. NEWHC, INC.
By __________________________________________ By __________________________________________
Xxxx X. Xxxxxxxx, President and Treasurer Xxxx X. Xxxxxxxx, President
NATIONAL GRID USA SERVICE COMPANY, INC. XXXX COMMUNICATIONS, INC.
By __________________________________________ By __________________________________________
Xxxx X. Xxxxxxxx, Vice President Xxxxxx X. Xxxxxxxx, President
XXXX TELECOMMUNICATIONS CORP. NEW ENGLAND ENERGY, INCORPORATED
By __________________________________________ By __________________________________________
Xxxxxx X. Xxxxxxxx, President Xxxx X. Xxxxxxxx, Treasurer
EUA ENERGY INVESTMENT CORPORATION EUA BIOTEN, INC.
By __________________________________________ By __________________________________________
Xxxx X. Xxxxxxxx, President and Treasurer Xxxx X. Xxxxxxxx, President and Treasurer
NATIONAL GRID TRANSMISSION SERVICES CORPORATION
By __________________________________________
Xxx Xxxxx, President
