EXHIBIT B-5
(revised)
INTERCOMPANY
INCOME TAX ALLOCATION AGREEMENT
THIS INTERCOMPANY INCOME TAX ALLOCATION AGREEMENT (this "Agreement") is
made as of the ____ day of ____________,____, by and between SCANA Corporation
("SCANA") and each of its wholly owned subsidiaries, namely (i) SCANA Services,
Inc., (ii) South Carolina Electric & Gas Company, (iii) South Carolina Pipeline
Corporation and its wholly owned subsidiary C&T Pipeline, LLC, (iv) South
Carolina Fuel Company, Inc., (v) South Carolina Generating Company, Inc., (vi)
SCANA Communications, Inc. and its wholly owned subsidiary SCANA Communications
Holdings, Inc. (Holdings being a Delaware corporation), (vii) Public Service
Company of North Carolina, Inc. ("PSNC") and its wholly owned subsidiaries Clean
Energy Enterprises, Inc., PSNC Blue Ridge Corporation and PSNC Cardinal Pipeline
Company, (viii) Primesouth, Inc. and its wholly owned subsidiary Palmark, Inc.,
(ix) SCANA Development Corporation, (x) SCANA Energy Marketing, Inc. and its
wholly owned subsidiaries PSNC Production Corporation (which wholly owns SCANA
Public Service Co. LLC) and SCANA Energy Trading, LLC, (xi) SCANA Propane Gas,
Inc. and its wholly owned subsidiaries USA Cylinder Exchange, Inc. and SCANA
Propane Supply, Inc., (xii) SCANA Propane Storage, Inc., (xiii) ServiceCare,
Inc., (xiv) SCANA Resources, Inc., and (xv) SCG Pipeline, Inc., each being a
South Carolina corporation, except SCANA Communications Holdings, Inc. as above
indicated. All of the aforementioned corporations are hereinafter referred to
individually as a "Company" and collectively referred to as the "Companies". The
term Company shall also include subsidiaries of SCANA who subsequently sign a
counterpart to this Agreement to become part of the consolidated group for
federal income tax purposes.
WITNESSETH:
WHEREAS, the Companies file a consolidated federal income tax return in
accordance with the provisions of subparagraph (a)(1) of Section 1552 of the
Internal Revenue Code of 1986;
WHEREAS, by order dated ________,____, the Securities and Exchange
Commission has authorized the Companies to enter into this agreement and to
allocate consolidated federal income tax liability and certain other taxes
described below in the manner provided herein; and
WHEREAS, the Companies desire to allocate such tax liability in
accordance with the following procedures;
NOW THEREFORE, the Companies do agree as follows:
ARTICLE I.
DEFINITIONS
1.1 "Acquisition Indebtedness" means indebtedness incurred by SCANA to
finance the mergers contemplated by the Amended and Restated Agreement and Plan
of Merger dated as of February 16, 1999, and as amended as of May 10, 1999, by
and among PSNC, SCANA, New
Sub I, Inc. and New Sub II, Inc., pursuant to which PSNC became a wholly-owned
subsidiary of SCANA, and any renewals or extensions thereof and any refinancings
or refundings thereof.
1.2 "Associate Companies" shall mean all Companies party hereto other
than SCANA.
1.3 "Consolidated Tax" is the aggregate tax liability for a tax year,
being the tax shown on the consolidated return and any adjustments thereto
thereafter determined. The consolidated tax will be the refund if the
consolidated return shows a negative tax.
1.4 "Corporate Tax Credit" is a negative separate return tax of a
Company for a tax year, equal to the amount by which the consolidated tax is
reduced by including a net corporate taxable loss or other net tax benefit of
such Company in the consolidated tax return.
1.5 "Corporate Taxable Income" is the income or loss of a Company for a
tax year, computed as though such Company had filed a separate return on the
same basis as used in the consolidated return, except that dividend income from
the Companies shall be disregarded, and other intercompany transactions
eliminated in the consolidated return shall be given appropriate effect. It
shall further be adjusted to allow for applicable rights accrued to a Company
for the recognition of negative corporate taxable income consistent with the
provisions of Article II herein, but carryovers and carrybacks shall not be
taken into account as loss Companies are to receive current payment of their
Corporate Tax Credits. If a Company is a member of the registered system's
consolidated tax group for only part of a tax year, that period will be deemed
to be its tax year for all purposes for that year under this Agreement.
1.6 "Other Return" means any consolidated, combined or unitary return
of Other Taxes filed by SCANA or any Company, whether before or after the date
hereof, which covers the operations of one or more Companies.
1.7 "Other Taxes" means any taxes (including interest and penalties)
payable by SCANA or any Company to the government of any state, municipal or
other political subdivision, including all agencies and instrumentalities of
such government.
1.8 "Separate Return Tax" is the tax on the Corporate Taxable Income of
a Company computed as though such Company was not a member of a consolidated
group.
ARTICLE II.
TAX ALLOCATION PROCEDURES
2.1 (a) The Consolidated Tax shall be apportioned among the Companies
in proportion to the Corporate Taxable Income of each member of the affiliated
group. Each Associate Company which incurs a tax loss for the year shall be
included in the allocation of Consolidated Tax and shall receive a Corporate Tax
Credit, the amount of which shall be currently paid to such Associate Company by
SCANA increased by any amounts previously assessed by SCANA and remitted by such
Associate Company to SCANA for estimated tax payment purposes attributable to
the subject taxable year. Each Company with a positive allocation of the
Consolidated Tax shall currently pay the amount so allocated, decreased by any
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amounts previously assessed by SCANA and remitted by such Company to SCANA for
estimated tax payment purposes attributable to the subject taxable year.
(b) If and to the extent that SCANA has a Corporate Tax
Credit, SCANA may receive and retain payment of an amount equal to the portion
of SCANA's Corporate Tax Credit attributable to the interest deduction
associated with SCANA's Acquisition Indebtedness. The portion of SCANA's
Corporate Tax Credit which cannot be allocated and paid to SCANA due to the
limitations of this section shall be allocated to the Associate Companies with a
positive allocation of the Consolidated Tax in proportion to the Corporate
Taxable Income of such Associate Companies.
(c) In making the tax allocations provided for in this
Agreement, except as provided in Section 2.1(b) above, notwithstanding any of
the foregoing, no corporate tax benefits shall be allocated to SCANA and SCANA
shall be required to contribute towards the payment of the Consolidated Tax (and
any other amounts required to be paid to any Company by SCANA pursuant to
Section 2.1 of this Agreement) an amount equal to the Separate Return Tax
attributable to SCANA for such tax year. SCANA will remit, from its separate
resources, funds for the payment of tax liabilities owed by SCANA pursuant to
this Section 2.1.
2.2 A U.S. consolidated federal income tax return shall be prepared and
filed by SCANA for each taxable year in respect of which this Agreement is in
effect and for which the Companies are required or permitted to file a
consolidated federal income tax return. SCANA and each of the Associate
Companies shall execute and file such consents, elections and other documents
that may be required or appropriate for the proper filing of such returns. SCANA
shall pay to the Internal Revenue Service the group's Consolidated Tax liability
from the net of the receipts and payments.
2.3 No Associate Company shall be allocated any income tax greater than
the Separate Return Tax of such Associate Company.
2.4 To the extent that the Consolidated and Corporate Taxable Incomes
include material items taxed at rates other than the statutory rate (such as
capital gains and preference items), the portion of the Consolidated Tax
attributable to these items shall be apportioned directly to the members of the
group giving rise to such items.
2.5 Should the Companies generate a net consolidated tax loss for a tax
year that is too large to be used in full for that year, with the result that
there are uncompensated Corporate Tax Credit benefits for that year, the
carryover of uncompensated benefits related to the carryforward of tax losses
applied to reduce Consolidated Taxable Income in future tax years shall be
apportioned in accordance with the respective Companies' contributions to such
loss. The tax benefits of any resultant carryback shall be allocated
proportionally to the Companies that generated corporate tax losses in the year
the consolidated net operating tax loss was generated. Any related loss of
credits, including investment tax credit reversals, shall be allocated to the
Company that utilized the credits in the prior year in the same proportion that
the credit lost is to the total credit utilized in the prior year. Investment
tax credit reversals allocated to a Company will be added to that Company's
available corporate investment tax credit for future allocations. A prior year
consolidated net operating tax loss carryforward applied to
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reduce current year Consolidated Taxable Income shall be allocated
proportionally to Companies that generated a corporate tax loss in the year the
consolidated net operating loss was generated.
2.6 Adjustments to or revisions of the Consolidated Tax as a result of
subsequent events such as amended returns, revenue agents' reports, litigation
or negotiated settlements shall be allocated in accordance with the principles
established in this Agreement.
ARTICLE III.
OTHER TAXES
3.1 SCANA will prepare and file (or cause to be prepared and filed) all
Other Returns of Other Taxes which are required to be filed with respect to the
operations of SCANA and its subsidiaries. In the event any taxing authority
requires or permits that a combined, consolidated or unitary return be filed for
Other Taxes, which return includes both SCANA and a subsidiary, SCANA may elect
to file such return and shall have the right to require any Company to be
included in such return. SCANA will advise each of its subsidiaries included in
each Other Return and each governmental office in which any Other Return is
filed. Other Taxes shall be allocated among the Companies, and adjustments made
regarding tax rates, carryforwards and carrybacks and subsequent events, in a
manner that is consistent with the method set forth in Article II hereof.
Furthermore, amounts due to SCANA or from SCANA, with respect to Other Taxes
shall be paid as provided in Article II.
3.2 Each Company that does not file an Other Return or for which SCANA
has not filed an Other Return shall be solely responsible and obligated to pay
the tax liability with respect to its required returns from its own funds. Such
returns shall be prepared and filed by SCANA on behalf of such Company.
3.3 If any Company is required to file a combined, consolidated or
unitary return for Other Taxes with another Company, but not with SCANA, then
SCANA shall have the rights, powers and obligations to file such tax returns and
apportion among, and collect and remit from, the applicable Companies such Other
Taxes as the rights, powers and obligations given to SCANA under this Agreement
with respect to the Consolidated Tax. Such returns shall be prepared and filed
by SCANA. If the right to file a combined, consolidated or unitary return for
Other Taxes is optional, then SCANA shall decide which of its subsidiaries
should, to the extent permitted by law, join in the filing of such return.
3.4 SCANA and each of the Associate Companies shall execute and file
such consents, elections and other documents that may be required or appropriate
for the proper filing of Other Returns. SCANA shall pay to the appropriate
taxing body the combined tax liability in respect of Other Taxes from the net of
the receipts and payments made by it and the Associate Companies.
3.5 No Associate Company shall be allocated any Other Tax greater than
the amount computed as though such Company was not a member of a group filing
such Other Return.
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ARTICLE IV.
AMENDMENT
This Agreement is subject to revision as a result of changes in income
tax law and changes in relevant facts and circumstances, subject to approval of
the Securities and Exchange Commission as and to the extent required by the
Public Utility Holding Company Act of 1935, as amended.
ARTICLE V.
EFFECTIVENESS
This Agreement shall apply to the tax period ending December 31, 2002,
and, subject to receipt of approval of the Securities and Exchange Commission,
all subsequent taxable periods unless and until (a) this Agreement is terminated
by the mutual consent of the signatories hereto, or (b) this Agreement is
terminated by SCANA (in its sole discretion) as to any one or more Associate
Companies at any time that such Associate Company(ies) are no longer members of
an affiliated group with SCANA under Section 1504(a) of the Code.
Notwithstanding such termination, this Agreement shall continue in effect with
respect to any payment or refunds due for all taxable periods ending on or prior
to termination.
ARTICLE VI.
PARTIES TO THIS AGREEMENT
This Agreement shall be binding upon and inure to the benefit of any
successor of the Companies, whether by operation of law or otherwise, to the
same extent as if the successor had been an original party to the Agreement. If
during a consolidated return period SCANA or any Associate Company acquires or
organizes another corporation that is required to be included in the
consolidated return, then such corporation shall join in and be bound by this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by an officer of
each company as of the day and year first above written by the Companies.
ATTEST: SCANA Corporation
ATTEST: SCANA Services, Inc.
ATTEST: South Carolina Electric & Gas Company
ATTEST: South Carolina Pipeline Corporation
ATTEST: South Carolina Fuel Company, Inc.
ATTEST: South Carolina Generating Company, Inc.
ATTEST: SCANA Communications, Inc.
ATTEST: SCANA Communications Holdings, Inc.
ATTEST: Primesouth, Inc.
ATTEST: Palmark, Inc.
ATTEST: SCANA Development Corporation
ATTEST: SCANA Energy Marketing, Inc.
ATTEST: PSNC Production Corporation
ATTEST: SCANA Propane Gas, Inc.
ATTEST: USA Cylinder Exchange, Inc.
ATTEST: SCANA Propane Supply, Inc.
ATTEST: SCANA Propane Storage, Inc.
ATTEST: Service Care, Inc.
ATTEST: SCANA Resources, Inc.
ATTEST: SCG Pipeline, Inc.
ATTEST: Public Service Company of
North Carolina, Inc.
ATTEST: Clean Energy Enterprises, Inc.
ATTEST: PSNC Blue Ridge Corporation
ATTEST: PSNC Cardinal Pipeline Company