Form 10-Q
Table of Contents

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

 

x

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended         September 30, 2009        

OR

 

¨

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number 1-32740

ENERGY TRANSFER EQUITY, L.P.

(Exact name of registrant as specified in its charter)

 

Delaware   30-0108820
(state or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)

3738 Oak Lawn Avenue, Dallas, Texas 75219

(Address of principal executive offices and zip code)

Registrant’s telephone number, including area code: (214) 981-0700

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.

Yes     x        No           

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

Yes               No           

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer     x        Accelerated filer           
Non-accelerated filer            (Do not check if a smaller reporting company)    Smaller reporting company           

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

Yes               No     x    

At November 5, 2009, the registrant had units outstanding as follows:

 

Energy Transfer Equity, L.P.

  

222,898,248 Common Units


Table of Contents

FORM 10-Q

INDEX TO FINANCIAL STATEMENTS

Energy Transfer Equity, L.P. and Subsidiaries

 

         Page
PART I    FINANCIAL INFORMATION   

    ITEM 1.

 

FINANCIAL STATEMENTS (Unaudited)

  

Condensed Consolidated Balance Sheets –
September 30, 2009 and December  31, 2008

   1

Condensed Consolidated Statements of Operations –
Three and Nine Months Ended September 30, 2009 and 2008

   3

Condensed Consolidated Statements of Comprehensive Income –
Three and Nine Months Ended September 30, 2009 and 2008

   4

Condensed Consolidated Statement of Equity –
Nine Months Ended September 30, 2009

   5

Condensed Consolidated Statements of Cash Flows –
Nine Months Ended September  30, 2009 and 2008

   6

Notes to Condensed Consolidated Financial Statements

   7

    ITEM 2.

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS

   40

    ITEM 3.

 

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK

   56

    ITEM 4.

 

CONTROLS AND PROCEDURES

   58
PART II    OTHER INFORMATION   

    ITEM 1.

 

LEGAL PROCEEDINGS

   59

    ITEM 1A.

 

RISK FACTORS

   59

    ITEM 2.

 

UNREGISTERED SALES OF EQUITY SECURITIES
AND USE OF PROCEEDS

   59

    ITEM 3.

 

DEFAULTS UPON SENIOR SECURITIES

   59

    ITEM 4.

 

SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

   59

    ITEM 5.

 

OTHER INFORMATION

   59

    ITEM 6.

 

EXHIBITS

   59

SIGNATURE

  

 

i


Table of Contents

Forward-Looking Statements

Certain matters discussed in this report, excluding historical information, as well as some statements by Energy Transfer Equity, L.P., (“Energy Transfer Equity” or “the Partnership”) in periodic press releases and some oral statements of Energy Transfer Equity officials during presentations about the Partnership, include certain “forward-looking” statements within the meaning of Section 27A of the Securities Act of 1933 (“Securities Act”) and Section 21E of the Securities Exchange Act of 1934 (“Exchange Act”). Statements using words such as “anticipate,” “believe,” “intend,” “project,” “plan,” “continue,” “estimate,” “forecast,” “may,” “will” or similar expressions help identify forward-looking statements. Although the Partnership believes such forward-looking statements are based on reasonable assumptions and current expectations and projections about future events, no assurance can be given that every objective will be reached.

Actual results may differ materially from any results projected, forecasted, estimated or expressed in forward-looking statements since many of the factors that determine these results are subject to uncertainties and risks, difficult to predict and beyond management’s control. For additional discussion of risks, uncertainties and assumptions, see “Part II Other Information – Item 1A. Risk Factors” in this Quarterly Report on Form 10-Q as well as the Partnership’s Report on Form 10-K for the year ended December 31, 2008 filed with the Securities and Exchange Commission (“SEC”) on March 2, 2009.

Definitions

The following is a list of certain acronyms and terms generally used in the energy industry and throughout this document:

 

/d

    

per day

Btu

    

British thermal unit, an energy measurement

Capacity

    

Capacity of a pipeline, processing plant or storage facility refers to the maximum capacity under normal operating conditions and, with respect to pipeline transportation capacity, is subject to multiple factors (including natural gas injections and withdrawals at various delivery points along the pipeline and the utilization of compression) which may reduce the throughput capacity from specified capacity levels.

Dth

    

Million British thermal units (“dekatherm”). A therm factor is used by gas companies to convert the volume of gas used to its heat equivalent, and thus calculate the actual energy used.

Mcf

    

thousand cubic feet

MMBtu

    

million British thermal unit

MMcf

    

million cubic feet

Bcf

    

billion cubic feet

NGL

    

natural gas liquid, such as propane, butane and natural gasoline

Tcf

    

trillion cubic feet

LIBOR

    

London Interbank Offered Rate

NYMEX

    

New York Mercantile Exchange

Reservoir

    

A porous and permeable underground formation containing a natural accumulation of producible natural gas and/or oil that is confined by impermeable rock or water barriers and is separate from other reservoirs.

 

ii


Table of Contents

PART I FINANCIAL INFORMATION

ITEM 1. FINANCIAL STATEMENTS

ENERGY TRANSFER EQUITY, L.P. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(Dollars in thousands)

(unaudited)

 

     September 30,
2009
   December 31,
2008

ASSETS

     

CURRENT ASSETS:

     

Cash and cash equivalents

     $ 50,192        $ 92,023  

Marketable securities

     12,682        5,915  

Accounts receivable, net of allowance for doubtful accounts

     352,838        591,257  

Accounts receivable from related companies

     30,807        15,142  

Inventories

     221,148        272,348  

Deposits paid to vendors

     99,317        78,237  

Exchanges receivable

     15,434        45,209  

Price risk management assets

     6,841        5,423  

Prepaid expenses and other current assets

     69,152        75,441  
             

Total current assets

     858,411        1,180,995  

PROPERTY, PLANT AND EQUIPMENT

     10,051,273        9,464,548  

ACCUMULATED DEPRECIATION

     (943,305)       (762,014) 
             
     9,107,968        8,702,534  

ADVANCES TO AND INVESTMENTS IN AFFILIATES

     550,950        10,110  

GOODWILL

     765,935        773,283  

INTANGIBLES AND OTHER ASSETS, net

     401,244        402,980  
             

Total assets

     $   11,684,508        $   11,069,902  
             

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

1


Table of Contents

ENERGY TRANSFER EQUITY, L.P. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(Dollars in thousands)

(unaudited)

 

     September 30,
2009
   December 31,
2008

LIABILITIES AND EQUITY

     

CURRENT LIABILITIES:

     

Accounts payable

     $ 254,044        $ 381,933  

Accounts payable to related companies

     7,265        34,495  

Exchanges payable

     22,400        54,636  

Customer advances and deposits

     101,258        106,679  

Accrued and other current liabilities

     247,919        313,140  

Price risk management liabilities

     82,697        142,432  

Interest payable

     115,455        115,487  

Income taxes payable

     5,234        14,298  

Deferred income taxes

     -        589  

Current maturities of long-term debt

     46,115        45,232  
             

Total current liabilities

     882,387        1,208,921  

LONG-TERM DEBT, less current maturities

     7,740,135        7,190,357  

LONG-TERM PRICE RISK MANAGEMENT LIABILITIES

     89,990        121,710  

DEFERRED INCOME TAXES

     197,257        194,871  

OTHER NON-CURRENT LIABILITIES

     21,076        14,727  

COMMITMENTS AND CONTINGENCIES (Note 15)

     
             
     8,930,845        8,730,586  
             

EQUITY:

     

Partners’ Capital (Deficit):

     

General Partner

     149        155  

Limited Partners:

     

Common Unitholders (222,898,248 and 222,829,956 units authorized, issued and outstanding at September 30, 2009 and December 31, 2008, respectively)

     (17,399)       (15,762) 

Accumulated other comprehensive loss

     (67,257)       (67,825) 
             

Total partners’ deficit

     (84,507)       (83,432) 

Noncontrolling interest

     2,838,170        2,422,748  
             

Total equity

     2,753,663        2,339,316  
             

Total liabilities and equity

     $   11,684,508        $   11,069,902  
             

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

2


Table of Contents

ENERGY TRANSFER EQUITY, L.P. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(Dollars in thousands, except per unit data)

(unaudited)

 

    Three Months Ended September 30,   Nine Months Ended September 30,
    2009   2008   2009   2008

REVENUES:

       

Natural gas operations

    $ 943,975       $ 1,938,586       $ 3,004,163       $ 6,322,070  

Retail propane

    162,224       238,830       829,901       1,086,417  

Other

    23,650       28,674       77,449       90,199  
                       

Total revenues

    1,129,849       2,206,090       3,911,513       7,498,686  
                       

COSTS AND EXPENSES:

       

Cost of products sold - natural gas operations

    591,797       1,435,308       1,865,914       4,965,145  

Cost of products sold - retail propane

    80,232       187,799       378,524       744,316  

Cost of products sold - other

    6,119       10,347       18,842       27,783  

Operating expenses

    158,883       197,493       517,337       573,606  

Depreciation and amortization

    84,738       73,563       239,626       200,922  

Selling, general and administrative

    34,579       45,316       146,640       140,781  
                       

Total costs and expenses

    956,348       1,949,826       3,166,883       6,652,553  
                       

OPERATING INCOME

    173,501       256,264       744,630       846,133  

OTHER INCOME (EXPENSE):

       

Interest expense, net of interest capitalized

    (120,100)      (90,300)      (341,050)      (261,297) 

Equity in earnings (losses) of affiliates

    9,581       (654)      11,751       (749) 

Gains (losses) on disposal of assets

    (1,088)      2,520       (1,333)      1,584  

Gains (losses) on non-hedged interest rate derivatives

    (35,589)      (9,152)      24,373       (13,610) 

Allowance for equity funds used during construction

    30       19,727       18,618       45,275  

Other, net

    4,235       (1,163)      4,559       8,356  
                       

INCOME BEFORE INCOME TAX EXPENSE (BENEFIT)

    30,570       177,242       461,548       625,692  

Income tax expense (benefit)

    (3,697)      (7,874)      5,773       6,600  
                       

NET INCOME

    34,267       185,116       455,775       619,092  

LESS: NET INCOME (LOSS) ATTRIBUTABLE TO NONCONTROLLING INTEREST

    (12,704)      79,737       152,893       266,614  
                       

NET INCOME ATTRIBUTABLE TO PARTNERS

    46,971       105,379       302,882       352,478  

GENERAL PARTNER’S INTEREST IN NET INCOME

    147       326       938       1,091  
                       

LIMITED PARTNERS’ INTEREST IN NET INCOME

    $ 46,824       $ 105,053       $ 301,944       $ 351,387  
                       

BASIC NET INCOME PER LIMITED PARTNER UNIT

    $ 0.21       $ 0.47       $ 1.35       $ 1.58  
                       

BASIC AVERAGE NUMBER OF UNITS OUTSTANDING

    222,898,248       222,829,956       222,898,188       222,829,956  
                       

DILUTED NET INCOME PER LIMITED PARTNER UNIT

    $ 0.21       $ 0.47       $ 1.35       $ 1.57  
                       

DILUTED AVERAGE NUMBER OF UNITS OUTSTANDING

    222,898,248       222,829,956       222,898,188       222,829,956  
                       

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

3


Table of Contents

ENERGY TRANSFER EQUITY, L.P. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(Dollars in thousands)

(unaudited)

 

     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

Net income

     $ 34,267        $ 185,116        $ 455,775        $ 619,092  

Other comprehensive income (loss), net of tax:

           

Reclassification to earnings of gains and losses on derivative instruments accounted for as cash flow hedges

     8,162        3,420        10,320        (5,037) 

Change in value of derivative instruments accounted for as cash flow hedges

     (27,663)       (606)       (27,049)       (10,382) 

Change in value of available-for-sale securities

     3,049        (5,703)       6,757        (2,760) 
                           
     (16,452)       (2,889)       (9,972)       (18,179) 

Comprehensive income

     17,815              182,227              445,803              600,913  

Less: Comprehensive income (loss) attributable to noncontrolling interest

           (19,635)       80,391        142,353        257,542  
                           

Comprehensive income attributable to partners

     $ 37,450        $ 101,836        $ 303,450        $ 343,371  
                           

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

4


Table of Contents

ENERGY TRANSFER EQUITY, L.P. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENT OF EQUITY

FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2009

(Dollars in thousands)

(unaudited)

 

     General
Partner
   Common
Unitholders
   Accumulated
Other
Comprehensive
Loss
   Noncontrolling
Interest
   Total

Balance, December 31, 2008

     $ 155        $ (15,762)       $ (67,825)       $ 2,422,748        $ 2,339,316  

Distributions to ETE partners

     (1,087)       (349,950)       -        -        (351,037) 

Subsidiary distributions

     -        -        -        (278,338)       (278,338) 

Subsidiary issuance of units in public offerings

     143        45,935        -        532,846        578,924  

Tax effect of remedial income allocation from tax amortization of goodwill

     -        -        -        (2,822)       (2,822) 

Non-cash unit-based compensation expense, net of units tendered by employees for tax withholdings

     -        415        -        20,464        20,879  

Non-cash executive compensation expense

     -        19        -        919        938  

Other comprehensive income, net of tax

     -        -        568        (10,540)       (9,972) 

Net income

     938        301,944        -        152,893        455,775  
                                  

Balance, September 30, 2009

     $ 149        $ (17,399)       $ (67,257)       $ 2,838,170        $ 2,753,663  
                                  

The accompanying notes are an integral part of this condensed consolidated financial statement.

 

5


Table of Contents

ENERGY TRANSFER EQUITY, L.P. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Dollars in thousands)

(unaudited)

 

    Nine Months Ended September 30,
    2009   2008

NET CASH FLOWS PROVIDED BY OPERATING ACTIVITIES

    $ 721,421       $ 908,837  
           

CASH FLOWS FROM INVESTING ACTIVITIES:

   

Cash paid for acquisitions, net of cash acquired

    (6,244)      (62,002) 

Capital expenditures (excluding allowance for equity funds used during construction)

    (703,461)      (1,507,766) 

Contributions in aid of construction costs

    5,251       46,261  

(Advances to) repayments from affiliates, net

    (534,500)      63,534  

Proceeds from the sale of assets

    13,235       20,232  
           

Net cash used in investing activities

    (1,225,719)      (1,439,741) 
           

CASH FLOWS FROM FINANCING ACTIVITIES:

   

Proceeds from borrowings

    2,337,441       4,907,646  

Principal payments on debt

    (1,816,884)      (3,590,818) 

Subsidiary equity offering, net of issue costs

    578,924       373,079  

Distributions to partners

    (351,037)      (328,577) 

Debt issuance costs

    (7,639)      (20,897) 

Distributions to noncontrolling interests

    (278,338)      (239,954) 
           

Net cash provided by financing activities

    462,467       1,100,479  
           

INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS

    (41,831)      569,575  

CASH AND CASH EQUIVALENTS, beginning of period

    92,023       56,557  
           

CASH AND CASH EQUIVALENTS, end of period

    $ 50,192       $ 626,132  
           

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

6


Table of Contents

ENERGY TRANSFER EQUITY, L.P. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Tabular dollar amounts, except per unit data, are in thousands)

(unaudited)

 

1.

OPERATIONS AND ORGANIZATION:

The accompanying condensed consolidated balance sheet as of December 31, 2008, which has been derived from audited financial statements, and the unaudited interim financial statements and notes thereto of Energy Transfer Equity, L.P. and its subsidiaries (“the Partnership,” “ETE” or the “Parent Company”) as of September 30, 2009 and for the three and nine months ended September 30, 2009 and 2008, have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) for interim consolidated financial information and pursuant to the rules and regulations of the SEC. Accordingly, they do not include all the information and footnotes required by GAAP for complete consolidated financial statements. However, management believes that the disclosures made are adequate to make the information not misleading. The results of operations for interim periods are not necessarily indicative of the results to be expected for a full year due to the seasonal nature of the operations, maintenance activities of the Partnership’s subsidiaries and the impact of forward natural gas prices and differentials on certain derivative financial instruments that are accounted for using mark-to-market accounting. Management has evaluated subsequent events through November 9, 2009, the date the financial statements were issued.

The unaudited condensed consolidated financial statements of the Partnership presented herein for the three and nine months ended September 30, 2009 and 2008 include the results of operations of ETE, ETE’s controlled subsidiary, Energy Transfer Partners, L.P., a publicly-traded master limited partnership (“ETP”), and ETE’s wholly-owned subsidiaries: Energy Transfer Partners GP, L.P., the General Partner of ETP (“ETP GP”), and Energy Transfer Partners, L.L.C., the General Partner of ETP GP (“ETP LLC”). The results of operations for ETP in turn include the results of operations for ETP’s wholly-owned subsidiaries: La Grange Acquisition, L.P., which conducts business under the assumed name of Energy Transfer Company (“ETC OLP”); Energy Transfer Interstate Holdings, LLC (“ET Interstate”), the parent company of Transwestern Pipeline Company, LLC (“Transwestern”) and ETC Midcontinent Express Pipeline, LLC (“ETC MEP”); Heritage Operating, L.P. (“HOLP”); Heritage Holdings, Inc. (“HHI”); and Titan Energy Partners, L.P. (“Titan”).

LE GP, LLC (“LE GP”), the general partner of ETE, is a Delaware limited liability company, which is ultimately owned by the Chief Executive Officer of ETP, a director of ETE (Mr. Ray Davis) and Enterprise GP Holdings, L.P. (“Enterprise” or “EPE”).

In the opinion of management, all adjustments (all of which are normal and recurring) have been made that are necessary to fairly state the Partnership’s consolidated financial position as of September 30, 2009, and the results of their operations and their cash flows for the three and nine months ended September 30, 2009 and 2008. The unaudited interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto presented in the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2008, as filed with the SEC on March 2, 2009.

Certain prior period amounts have been reclassified to conform to the 2009 presentation. Other than the reclassifications related to the adoption of Statement of Financial Accounting Standards No. 160, Noncontrolling Interests in Consolidated Financial Statements – An Amendment of ARB No. 51 (“SFAS 160”), which is now incorporated into ASC 810-10-65 (see Note 2), these reclassifications had no impact on net income or total equity.

Business Operations

Currently, the Parent Company’s business operations are conducted only though ETP’s operating subsidiaries (collectively referred to as the “Operating Companies”). The Parent Company’s principal sources of cash flow are its direct and indirect investments in the limited and general partner interests in ETP.

The Parent Company’s primary cash requirements are for general and administrative expenses, debt service requirements and distributions to its general and limited partners. The Parent Company-only assets and liabilities of ETE are not available to satisfy the debts and other obligations of ETP and its consolidated subsidiaries. In order to fully understand the financial condition of the Partnership on a stand-alone basis, see Note 19 for stand-alone financial information apart from that of the consolidated partnership information included herein.

 

7


Table of Contents

In order to simplify the obligations of the Partnership under the laws of several jurisdictions in which we conduct business, our activities are primarily conducted through ETP’s Operating Companies:

 

   

ETC OLP, a Texas limited partnership engaged in midstream and intrastate transportation and storage natural gas operations. ETC OLP owns and operates, through its wholly and majority-owned subsidiaries, natural gas gathering systems, intrastate natural gas pipeline systems and gas processing plants and is engaged in the business of purchasing, gathering, transporting, processing and marketing natural gas and NGLs in the states of Texas, Louisiana, Arizona, New Mexico, Utah and Colorado. Our intrastate transportation and storage operations primarily focus on transporting natural gas through our Oasis pipeline, ET Fuel System, East Texas pipeline and HPL System. Our midstream operations focus on the gathering, compression, treating, conditioning and processing of natural gas, primarily on or through our Southeast Texas System and North Texas System, and marketing activities. We also own and operate natural gas gathering pipelines and conditioning facilities in the Piceance-Uinta Basin of Colorado and Utah.

 

   

ET Interstate, the parent company of Transwestern and ETC MEP, all of which are Delaware limited liability companies engaged in interstate transportation of natural gas. Interstate revenues consist primarily of fees earned from natural gas transportation services and operational gas sales.

 

   

ETC Fayetteville Express Pipeline, LLC (“ETC FEP”), a Delaware limited liability company formed to engage in interstate transportation of natural gas.

 

   

ETC Tiger Pipeline, LLC (“ETC Tiger”), a Delaware limited liability company formed to engage in interstate transportation of natural gas.

 

   

HOLP, a Delaware limited partnership primarily engaged in retail propane operations. Our retail propane operations focus on sales of propane and propane-related products and services. The retail propane customer base includes residential, commercial, industrial and agricultural customers.

 

   

Titan, a Delaware limited partnership also engaged in retail propane operations.

The Partnership, the Operating Companies and their subsidiaries are collectively referred to in this report as “we,”, “us,” “ETE,” “ETP,” “Energy Transfer” or the “Partnership.” References to “the Parent Company” are to Energy Transfer Equity, L.P. on a stand-alone basis.

 

2.

ESTIMATES, SIGNIFICANT ACCOUNTING POLICIES AND NEW ACCOUNTING STANDARDS:

Use of Estimates

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the accrual for and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period.

The natural gas industry conducts its business by processing actual transactions at the end of the month following the month of delivery. Consequently, the most current month’s financial results for the midstream and intrastate transportation and storage segments are estimated using volume estimates and market prices. Any differences between estimated results and actual results are recognized in the following month’s financial statements. Management believes that the operating results estimated for the three and nine months ended September 30, 2009 and 2008 represent the actual results in all material respects.

Some of the other significant estimates made by management include, but are not limited to, the timing of certain forecasted transactions that are hedged, allowances for doubtful accounts, the fair value of derivative instruments, useful lives for depreciation and amortization, purchase accounting allocations and subsequent realizability of intangible assets, fair value measurements used in the goodwill impairment test, market value of inventory, estimates related to our unit-based compensation plans, deferred taxes, assets and liabilities resulting from the regulated ratemaking process, contingency reserves and environmental reserves. Actual results could differ from those estimates.

 

8


Table of Contents

New Accounting Standards and Changes to Significant Accounting Policies

Certain adjustments have been made to prior period information to conform to current period presentation related to our adoption of SFAS 160, which is discussed more fully below.

Accounting Standards Codification. On July 1, 2009, the Financial Accounting Standards Board (“FASB”) instituted a new referencing system, which codifies, but does not amend, previously existing nongovernmental GAAP. The FASB Accounting Standards Codification™ (“ASC”) is now the single authoritative source for GAAP. Although the implementation of ASC has no impact on our financial statements, certain references to authoritative GAAP literature within our footnotes have been changed to cite the appropriate content within the ASC.

Noncontrolling Interests. On January 1, 2009, we adopted SFAS 160, now incorporated into ASC 810-10, which established new accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. Specifically, the new standard requires the recognition of a noncontrolling interest (minority interest) as equity in the condensed consolidated financial statements and separate from the parent’s equity. The amount of net income attributable to the noncontrolling interest is included in consolidated net income on the face of the income statement. The new standard clarifies that changes in a parent’s ownership interest in a subsidiary that do not result in deconsolidation are equity transactions if the parent retains its controlling financial interest. In addition, the new standard requires that a parent recognizes a gain or loss in net income when a subsidiary is deconsolidated. Such gain or loss is measured using the fair value of the noncontrolling equity investment on the deconsolidation date. This standard also includes expanded disclosure requirements regarding the interests of the parent and its noncontrolling interest. The adoption of this standard did not have a significant impact on our financial position or results of operations. However, it did result in certain changes to our financial statement presentation, including the change in classification of noncontrolling interest (minority interest) from liabilities to equity on the condensed consolidated balance sheet.

Upon adoption, we reclassified $2.42 billion from minority interest liability to noncontrolling interest as a separate component of equity in our condensed consolidated balance sheet as of December 31, 2008. In addition, we reclassified $79.7 million and $266.6 million of minority interest expense to net income attributable to noncontrolling interest in our condensed consolidated statements of operations for the three and nine months ended September 30, 2008, respectively. Net income per limited partner unit has not been affected as a result of the adoption of this standard.

Earnings per Unit. On January 1, 2009, we adopted a new methodology for calculating earnings per unit to reflect recently ratified changes to accounting standards. This new standard was originally issued as Emerging Issues Task Force Issue No. 07-4, Application of the Two-Class Method under FASB Statement No. 128 to Master Limited Partnerships and is now incorporated into ASC 260-10. Our adoption of this standard did not have an impact on the calculation of ETE’s earnings per unit.

On January 1, 2009, we also adopted FASB Staff Position No. EITF 03-6-1, Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities which is now incorporated into ASC 260-10. This standard clarifies that unvested share-based payment awards constitute participating securities, if such awards include nonforfeitable rights to dividends or dividend equivalents. Consequently, awards that are deemed to be participating securities must be allocated earnings in the computation of earnings per share under the two-class method. Based on unvested unit awards outstanding at the time of adoption, application of this standard did not have a material impact on our computation of earnings per unit.

Business Combinations. On January 1, 2009, we adopted Statement of Financial Accounting Standards No. 141 (Revised 2007), Business Combinations, which is now incorporated into ASC 805. The new standard significantly changes the accounting for business combinations and includes a substantial number of new disclosure requirements. The new standard requires an acquiring entity to recognize all the assets acquired and liabilities assumed in a transaction at the acquisition-date fair value with limited exceptions and changes the accounting treatment for certain specific items, including:

 

   

Acquisition costs are generally expensed as incurred;

 

   

Noncontrolling interests (previously referred to as “minority interests”) are valued at fair value at the acquisition date;

 

   

In-process research and development is recorded at fair value as an indefinite-lived intangible asset at the acquisition date;

 

9


Table of Contents
   

Restructuring costs associated with a business combination are generally expensed subsequent to the acquisition date; and

 

   

Changes in deferred tax asset valuation allowances and income tax uncertainties after the acquisition date are recorded in income taxes.

Our adoption of this standard did not have an immediate impact on our financial position or results of operations; however, it has impacted the accounting for our business combinations subsequent to adoption.

Derivatives Instruments and Hedging Activities. On January 1, 2009, we adopted Statement of Financial Accounting Standards No. 161, Disclosures about Derivative Instruments and Hedging Activities - An Amendment of FASB Statement No. 133, which is now incorporated into ASC 815. This standard changed the disclosure requirements for derivative instruments and hedging activities, including requirements for qualitative disclosures about objectives and strategies for using derivatives, quantitative disclosures about fair value amounts and gains and losses on derivative instruments, and disclosures about credit-risk-related contingent features in derivative agreements. The standard only affected disclosure requirements; therefore, our adoption did not impact our financial position or results of operations.

Equity Method Investment Accounting. On January 1, 2009, we adopted Emerging Issues Task Force Issue No. 08-6, Equity Method Investment Accounting Considerations, which is now incorporated into ASC 323-10-35. This standard establishes the requirements for initial measurement of an equity method investment, including the accounting for contingent consideration related to the acquisition of an equity method investment, and also clarifies the accounting for (1) an other-than-temporary impairment of an equity method investment and (2) changes in level of ownership or degree of influence with respect to an equity method investment. Our adoption did not have a material impact on our financial condition or results of operations.

Subsequent Events. During 2009, we adopted Statement of Financial Accounting Standards No. 165, Disclosures about Subsequent Events, which is now incorporated into ASC 855. Under this standard, we are required to evaluate subsequent events through the date that our financial statements are issued and also required to disclose the date through which subsequent events are evaluated. The adoption of this standard does not change our current practices with respect to evaluating, recording and disclosing subsequent events; therefore, our adoption of this statement during the second quarter had no impact on our financial position or results of operations.

 

3.

CASH, CASH EQUIVALENTS AND SUPPLEMENTAL CASH FLOW INFORMATION:

Cash and cash equivalents include all cash on hand, demand deposits, and investments with original maturities of three months or less. We consider cash equivalents to include short-term, highly liquid investments that are readily convertible to known amounts of cash and which are subject to an insignificant risk of changes in value.

We place our cash deposits and temporary cash investments with high credit quality financial institutions. At times, our cash and cash equivalents may be uninsured or in deposit accounts that exceed the Federal Deposit Insurance Corporation (“FDIC”) insurance limit.

 

10


Table of Contents

Net cash provided by operating activities is comprised of the following:

 

     Nine Months Ended September 30,
     2009    2008

Net Income

     $ 455,775        $ 619,092  

Reconciliation of net income to net cash provided by operating activities:

     

Depreciation and amortization

     239,626        200,922  

Amortization of finance costs charged to interest

     11,623        6,495  

Provision for loss on accounts receivable

     4,483        4,734  

Non-cash unit compensation expense

     21,356        14,352  

Non-cash executive compensation expense

     938        937  

Deferred income taxes

     848        (5,954) 

(Gains) losses on disposal of assets

     1,333        (1,584) 

Allowance for equity funds used during construction

     (18,618)       (45,275) 

Distribution in excess of (less than) equity in earnings of affiliates, net

     (5,696)       4,723  

Other non-cash

     (447)       -  

Changes in operating assets and liabilities, net of effects of acquisitions:

     

Accounts receivable

     235,239        214,348  

Accounts receivable from related companies

     (15,470)       (6,871) 

Inventories

     51,249        58,412  

Deposits paid to vendors

     (21,080)       (38,328) 

Exchanges receivable

     29,775        (5,457) 

Prepaid expenses and other current assets

     10,344        (31,059) 

Intangibles and other assets

     (1,927)       (14,057) 

Accounts payable

     (109,479)       (149,801) 

Accounts payable to related companies

     (27,425)       (10,550) 

Exchanges payable

     (32,236)       5,047  

Customer advances and deposits

     (5,566)       63,795  

Accrued and other current liabilities

     18,118        2,277  

Income taxes payable

     (9,122)       3,163  

Interest payable

     (73)       2,498  

Other non-current liabilities

     669        1,295  

Price risk management assets and liabilities, net

     (112,816)       15,683  
             

Net cash provided by operating activities

     $ 721,421        $ 908,837  
             

 

11


Table of Contents

Non-cash investing and financing activities and supplemental cash flow information are as follows:

 

     Nine Months Ended September 30,
     2009    2008

NON-CASH INVESTING ACTIVITIES:

     

Investment in Calpine Corporation received in exchange for accounts receivable

     $ -        $ 10,826  
             

Capital expenditures accrued

     $ 64,530        $ 195,350  
             

Gain from subsidiary issuance of common units (recorded in partners’ capital)

     $ 46,078        $ 48,782  
             

NON-CASH FINANCING ACTIVITIES:

     

Long-term debt assumed and non-compete agreement notes payable issued in acquisitions

     $ 17,113        $ 4,686  
             

Subsidiary issuance of Common Units in connection with certain acquisitions

     $ -        $ 2,278  
             

SUPPLEMENTAL CASH FLOW INFORMATION:

     

Cash paid for interest, net of interest capitalized

     $ 341,617        $ 273,549  
             

Cash paid for income taxes

     $ 16,528        $ 10,851  
             

 

4.

ACCOUNTS RECEIVABLE:

Accounts receivable consisted of the following:

 

     September 30,
2009
   December 31,
2008

Midstream and intrastate transportation and storage

     $ 260,244        $ 415,507  

Interstate transportation

     29,620        29,309  

Propane

     71,361        155,191  

Less - allowance for doubtful accounts

     (8,387)       (8,750) 
             

Total, net

     $     352,838        $     591,257  
             

The activity in the allowance for doubtful accounts during the nine months ended September 30, 2009 consisted of the following:

 

Balance, December 31, 2008

     $ 8,750  

Accounts receivable written off, net of recoveries

     (4,846) 

Provision for loss on accounts receivable

     4,483  
      

Balance, September 30, 2009

     $     8,387  
      

 

5.

INVENTORIES:

Inventories consisted of the following:

 

     September 30,
2009
   December 31,
2008

Natural gas and NGLs, excluding propane

     $ 115,965        $ 184,727  

Propane

     45,839        63,967  

Appliances, parts and fittings and other

     59,344        23,654  
             

Total inventories

     $     221,148        $     272,348  
             

We utilize commodity derivatives to manage price volatility associated with our natural gas inventory. In April 2009, we began designating commodity derivatives as fair value hedges for accounting purposes. Subsequent to the designation of those fair value hedging relationships, changes in fair value of the designated hedged inventory have been recorded in inventory on our condensed consolidated balance sheet and have been recorded in cost of products sold in our condensed consolidated statement of operations.

 

12


Table of Contents

Due to the application of fair value hedge accounting for our natural gas inventory, and because certain hedging relationships were designated at points in time where natural gas spot prices were significantly less than our weighted average cost and the spot price as of September 30, 2009, we recorded increases in our natural gas inventory of $9.7 million during the nine months ended September 30, 2009. As a result, our natural gas inventory exceeded the market price at September 30, 2009 after applying fair value hedge accounting, and we therefore recorded a non-cash lower of cost or market adjustment of $9.4 million for the three months ended September 30, 2009. During the nine months ended September 30, 2009, we have recorded lower of cost or market adjustments of $54.0 million in total for our natural gas inventory. No lower of cost or market adjustments were recorded for the nine months ended September 30, 2008.

 

6.

GOODWILL, INTANGIBLES AND OTHER ASSETS:

Components and useful lives of intangibles and other assets were as follows:

 

    September 30, 2009   December 31, 2008
    Gross Carrying
Amount
  Accumulated
Amortization
  Gross Carrying
Amount
  Accumulated
Amortization

Amortizable intangible assets:

       

Non-compete agreements (3 to 15 years)

    $ 40,219       $ (27,744)      $ 40,301       $ (24,374) 

Customer lists (3 to 30 years)

    153,268       (50,006)      144,337       (39,730) 

Contract rights (6 to 15 years)

    23,015       (5,164)      23,015       (3,744) 

Other (10 years)

    477       (385)      2,677       (2,244) 
                       

Total amortizable intangible assets

    216,979       (83,299)      210,330       (70,092) 
                       

Non-amortizable intangible assets:

       

Trademarks

    75,503       -       75,667       -  

Patents

    750       -       -       -  
                       

Total non-amortizable intangible assets

    76,253       -       75,667       -  
                       

Total intangible assets

    293,232       (83,299)      285,997       (70,092) 

Other assets:

       

Financing costs (3 to 30 years)

    82,251       (31,814)      74,611       (23,508) 

Regulatory assets

    105,801       (8,614)      98,560       (5,941) 

Other long-term assets

    43,687       -       43,353       -  
                       

Total intangibles and other assets

    $     524,971       $     (123,727)      $     502,521       $     (99,541) 
                       

Aggregate amortization expense of intangible and other assets was as follows:

 

     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

Reported in depreciation and amortization

     $     6,243        $     4,391        $     15,935        $     13,011  
                           

Reported in interest expense

     $     2,877        $     2,341        $     8,306        $     6,697  
                           

 

13


Table of Contents

Estimated aggregate amortization expense for the next five years is as follows:

 

Years

Ending

        December 31:        

    

2010

   $     29,653

2011

     27,243

2012

     21,808

2013

     16,001

2014

     14,991

We review amortizable intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable. If such a review should indicate that the carrying amount of amortizable intangible assets is not recoverable, we reduce the carrying amount of such assets to fair value. We review goodwill and non-amortizable intangible assets for impairment annually, or more frequently if circumstances dictate. Our annual impairment test is performed as of December 31 for our interstate segment and as of August 31 for all others. We have not completed our annual impairment tests for 2009 and have not recorded any impairments during the nine months ended September 30, 2009. In December 2008, we recorded an impairment of the entire goodwill balance of $11.4 million related to the Canyon Gathering System. No goodwill impairment losses were recorded during the three and nine months ended September 30, 2009 or 2008.

A net decrease in goodwill of $7.3 million was recorded during the nine months ended September 30, 2009 primarily due to purchase price allocation adjustments related to prior acquisitions of propane businesses.

 

7.

ACCRUED AND OTHER CURRENT LIABILITIES:

Accrued and other current liabilities consisted of the following:

 

     September 30,
2009
   December 31,
2008

Accrued wages and benefits

     $ 48,928        $ 65,754  

Accrued capital expenditures

     64,530        153,230  

Taxes other than income taxes

     64,531        20,772  

Other

     69,930        73,384  
             

Total accrued and other current liabilities

     $     247,919        $     313,140  
             

 

8.

INVESTMENTS IN AFFILIATES:

Midcontinent Express Pipeline LLC

ETP is party to an agreement with Kinder Morgan Energy Partners, L.P. (“KMP”) for a 50/50 joint development of the Midcontinent Express pipeline. Construction of the approximately 500-mile pipeline was completed and natural gas transportation service commenced August 1, 2009 on the pipeline from Delhi, Louisiana, to an interconnect with the Transco interstate natural gas pipeline in Butler, Alabama. Interim service began on the pipeline from Bennington, Oklahoma, to Delhi in April 2009. In July 2008, Midcontinent Express Pipeline, LLC (“MEP”), the entity formed to construct, own and operate this pipeline, completed an open season with respect to a capacity expansion of the pipeline from the original planned capacity of 1.5 Bcf/d to a total capacity of 1.8 Bcf/d for the main segment of the pipeline from north Texas to an interconnect location with the Columbia Gas Transmission Pipeline near Waverly, Louisiana. The additional 300 MMcf/d of capacity was fully subscribed as a result of this open season. The planned expansion of capacity will be added through the installation of additional compression on this segment of the pipeline. This expansion was approved by the Federal Energy Regulatory Commission (the “FERC”) in September 2009.

On January 9, 2009, MEP filed an amended application to revise its initial transportation rates to reflect an increase in projected costs for the project; the amended application was approved by the FERC on March 25, 2009.

In January 2008, in conjunction with the signing of transportation commitments, MEP entered into an option agreement with a subsidiary of MarkWest Energy Partners, L.P. (“MarkWest”), providing it a one-time right to purchase a 10% ownership interest in MEP. In October 2009, MarkWest provided notice that it would not exercise the option.

 

14


Table of Contents

Fayetteville Express Pipeline LLC

ETP is party to an agreement with KMP for a 50/50 joint development of the Fayetteville Express pipeline, an approximately 187-mile natural gas pipeline that will originate in Conway County, Arkansas, continue eastward through White County, Arkansas and terminate at an interconnect with Trunkline Gas Company in Quitman County, Mississippi. Fayetteville Express Pipeline, LLC (FEP”), the entity formed to construct, own and operate this pipeline, filed with the FERC on June 15, 2009 to request a certificate of public convenience and necessity pursuant to Section 7(c) of the Natural Gas Act and related authorizations. The pipeline is expected to have an initial capacity of 2.0 Bcf/d. Pending necessary regulatory approvals, the pipeline project is expected to be in service by early 2011. FEP has secured binding 10-year commitments for transportation of approximately 1.85 Bcf/d. The new pipeline will interconnect with Natural Gas Pipeline Company of America (“NGPL”) in White County, Arkansas, Texas Gas Transmission in Coahoma County, Mississippi and ANR Pipeline Company in Quitman County, Mississippi. NGPL is operated and partially owned by Kinder Morgan, Inc. Kinder Morgan, Inc. owns the general partner of KMP. Pursuant to our agreement with KMP related to this project, we and KMP are each obligated to fund 50% of the equity necessary to construct the project.

Capital Contributions to Affiliates

During the nine months ended September 30, 2009, we contributed $464.5 million to MEP and $70.0 million to FEP. In October 2009, we made an additional capital contribution of $200.0 million to MEP to reduce amounts outstanding under MEP’s credit facility. We do not expect to make additional contributions to MEP during the remainder of 2009. With respect to FEP, we anticipate to make additional capital contributions of $140 million during the remainder of 2009 to fund FEP’s capital expenditures. FEP is currently seeking financing, and if successful, we would not expect to make this additional capital contribution.

Summarized Financial Information

The following table presents aggregated selected income statement data for our unconsolidated affiliates, MEP and FEP (on a 100% basis):

 

     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

Revenue

     $         38,157        $         -        $     48,463        $         -  

Operating income

     18,271        -        21,047        -  

Net income

     17,602        -        19,313        1,058  

As stated above, MEP was placed into service during 2009.

 

9.

FAIR VALUE MEASUREMENTS:

The carrying amounts of accounts receivable and accounts payable approximate their fair value. Price risk management assets and liabilities are recorded at fair value. Based on the estimated borrowing rates currently available to us and our subsidiaries for long-term loans with similar terms and average maturities, the aggregate fair value and carrying amount of long-term debt at September 30, 2009 was $8.38 billion and $7.79 billion, respectively. At December 31, 2008, the aggregate fair value and carrying amount of long-term debt was $6.41 billion and $7.24 billion, respectively.

 

15


Table of Contents

The following table summarizes the fair value of our financial assets and liabilities as of September 30, 2009 and December 31, 2008:

 

    Fair Value Measurements at
September 30, 2009 Using
  Fair Value Measurements at
December 31, 2008 Using

Description

  Fair Value
Total
  Quoted Prices
in Active
Markets for

Identical
Assets and

Liabilities
(Level 1)
  Significant
Other
Observable
Inputs

(Level 2)
  Fair Value
Total
  Quoted Prices
in Active
Markets for

Identical
Assets and

Liabilities
(Level 1)
  Significant
Other
Observable
Inputs

(Level 2)

Assets:

           

Marketable securities

    $ 12,682       $ 12,682       $ -       $ 5,915       $ 5,915       $ -  

Inventories (natural gas)

    108,849       108,849       -       -       -       -  

Commodity derivatives

    19,990       13,149       6,841       111,513       106,090       5,423  

Liabilities:

           

Commodity derivatives

    (22,664)      (22,340)      (324)      (43,336)      -       (43,336) 

Interest rate swap derivatives

    (172,363)      -       (172,363)      (220,806)      -       (220,806) 
                                   

Total

    $     (53,506)      $     112,340       $     (165,846)      $     (146,714)      $     112,005       $     (258,719) 
                                   

In April 2009, we began designating as fair value hedges certain commodity derivatives that are utilized to manage price volatility associated with our natural gas inventory. Prior to April 2009, our natural gas inventory was recorded at weighted-average cost and therefore was not included in the table above. We consider the fair value of our hedged natural gas inventory to be a Level 1 valuation because it is stored at delivery points with active markets for which published prices are available.

 

10.

INCOME TAXES:

The components of the federal and state income tax expense (benefit) of our taxable subsidiaries are summarized as follows:

 

     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

Current expense (benefit):

           

Federal

     $ (88)       $ (7,826)       $     (5,195)       $     (1,192) 

State

     3,224        5,072        10,120        13,875  
                           

Total

     3,136        (2,754)       4,925        12,683  

Deferred expense (benefit):

           

Federal

     (6,394)       (5,639)       1,299        (6,264) 

State

     (439)       519        (451)       181  
                           

Total

     (6,833)       (5,120)       848        (6,083) 
                           

Total income tax expense (benefit)

     $ (3,697)       $     (7,874)       $ 5,773        $ 6,600  
                           

Effective tax rate

     (12.09%)       (4.44%)       1.25%       1.05% 
                           

The effective tax rate differs from the statutory rate due primarily to Partnership earnings that are not subject to federal and state income taxes at the Partnership level.

 

16


Table of Contents
11.

INCOME PER LIMITED PARTNER UNIT:

A reconciliation of net income and weighted average units used in computing basic and diluted net income per unit is as follows:

 

    Three Months Ended September 30,   Nine Months Ended September 30,
    2009   2008   2009   2008

Basic Net Income per Limited Partner Unit:

       

Limited Partners’ interest in net income

    $ 46,824       $ 105,053       $ 301,944       $ 351,387  
                       

Weighted average Limited Partner units

    222,898,248       222,829,956       222,898,188       222,829,956  
                       

Basic net income per Limited Partner unit

    $ 0.21       $ 0.47       $ 1.35       $ 1.58  
                       

Diluted Net Income per Limited Partner Unit:

       

Limited Partners’ interest in net income

    $ 46,824       $ 105,053       $ 301,944       $ 351,387  

Dilutive effect of Unit Grants

    -       (160)      (428)      (648) 
                       

Diluted net income available to Limited Partners

    $ 46,824       $ 104,893       $ 301,516       $ 350,739  
                       

Weighted average Limited Partner units

    222,898,248       222,829,956       222,898,188       222,829,956  
                       

Diluted net income per Limited Partner unit

    $ 0.21       $ 0.47       $ 1.35       $ 1.57  
                       

 

12.

DEBT OBLIGATIONS:

Revolving Credit Facilities and Term Loans

Parent Company Facilities

The Parent Company has a $1.45 billion Term Loan Facility with a Term Loan Maturity Date of November 1, 2012 (the “Parent Company Credit Agreement”). The Parent Company Credit Agreement also includes a $500.0 million Secured Revolving Credit Facility (the “Parent Company Revolving Credit Facility”) available through February 8, 2011. The Parent Company Revolving Credit Facility includes a Swingline loan option with a maximum borrowing of $10.0 million and a daily rate based on LIBOR.

The total outstanding amount borrowed under the Parent Company Credit Agreement and the Parent Company Revolving Credit Facility as of September 30, 2009 was $1.57 billion. The total amount available under the Parent Company’s debt facilities as of September 30, 2009 was $376.1 million. The Parent Company Revolving Credit Facility also contains an accordion feature, which will allow the Parent Company, subject to bank syndication’s approval, to expand the facility’s capacity up to an additional $100.0 million.

The maximum commitment fee payable on the unused portion of the Parent Company Revolving Credit Facility is based on the applicable Leverage Ratio, which is currently at Level I or 0.300%. Loans under the Parent Company Revolving Credit Facility bear interest at Parent Company’s option at either, (a) the Eurodollar rate plus the applicable margin or (b) base rate plus the applicable margin. The applicable margins are a function of the Parent Company’s leverage ratio that corresponds to levels set forth in the agreement. The applicable Term Loan bears interest at (a) the Eurodollar rate plus 1.75% per annum and (b) with respect to any Base Rate Loan, at Prime Rate plus 0.25% per annum. As of September 30, 2009, the weighted average interest rate was 2.17% for the amounts outstanding on the Parent Company Senior Secured Revolving Credit Facility and the Parent Company $1.45 billion Senior Secured Term Loan Facility.

The Parent Company Credit Agreement is secured by a lien on all tangible and intangible assets of the Parent Company and its subsidiaries, including its ownership of 62,500,797 ETP Common Units, the Parent Company’s 100% interest in ETP LLC and ETP GP with indirect recourse to ETP GP’s General Partner interest in ETP and 100% of ETP GP’s outstanding incentive distribution rights (“IDRs”) in ETP, which the Parent Company holds through its ownership of ETP GP.

ETP Credit Facility

The ETP Credit Facility provides for $2.0 billion of revolving credit capacity that is expandable to $3.0 billion (subject to obtaining the approval of the administrative agent and securing lender commitments for the increased borrowing capacity). The ETP Credit Facility matures on July 20, 2012, unless we elect the option of one-year extensions (subject to the approval of each

 

17


Table of Contents

such extension by the lenders holding a majority of the aggregate lending commitments). Amounts borrowed under the ETP Credit Facility bear interest at a rate based on either a Eurodollar rate or a prime rate. The indebtedness under the ETP Credit Facility is prepayable at any time at the Partnership’s option without penalty. The commitment fee payable on the unused portion of the ETP Credit Facility varies based on our credit rating and the fee is 0.11% based on our current rating with a maximum fee of 0.125%.

As of September 30, 2009, there was a balance of $483.3 million outstanding on the ETP Credit Facility, and taking into account letters of credit of approximately $65.1 million, $1.45 billion was available for future borrowings. The weighted average interest rate on the total amount outstanding at September 30, 2009, was 0.82%.

HOLP Credit Facility

HOLP has a $75.0 million Senior Revolving Facility (the “HOLP Credit Facility”) available to HOLP through June 30, 2011, which may be expanded to $150.0 million. Amounts borrowed under the HOLP Credit Facility bear interest at a rate based on either a Eurodollar rate or a prime rate. The commitment fee payable on the unused portion of the facility varies based on the Leverage Ratio, as defined in the credit agreement for the HOLP Credit Facility, with a maximum fee of 0.50%. The agreement includes provisions that may require contingent prepayments in the event of dispositions, loss of assets, merger or change of control. All receivables, contracts, equipment, inventory, general intangibles, cash concentration accounts of HOLP and the capital stock of HOLP’s subsidiaries secure the HOLP Credit Facility. At September 30, 2009, there was no outstanding balance in revolving credit loans and $1.0 million in outstanding letters of credit. The amount available as of September 30, 2009 was $74.0 million.

Other Long-Term Debt

In connection with our August 2009 acquisition of ETG (see Note 17), we assumed $17.0 million of long-term debt with interest rates averaging 7.48% and maturities through 2015.

ETP Senior Notes

2009 ETP Notes

In April 2009, ETP completed a public offering of $350.0 million aggregate principal amount of 8.50% Senior Notes due 2014 and $650.0 million aggregate principal amount of 9.00% Senior Notes due 2019 (collectively the “2009 ETP Notes”). The offering of the 2009 ETP Notes closed on April 7, 2009 and ETP used net proceeds of approximately $993.6 million to repay borrowings under the ETP Credit Facility and for general partnership purposes. Interest will be paid semi-annually.

The 2009 ETP Notes are unsecured obligations of the Partnership and the obligation of the Partnership to repay the 2009 ETP Notes is not guaranteed by any of the Partnership’s subsidiaries. As a result, the 2009 ETP Notes effectively rank junior to any future indebtedness of ours or our subsidiaries that is both secured and unsubordinated to the extent of the value of the assets securing such indebtedness, and the 2009 ETP Notes effectively rank junior to all indebtedness and other liabilities of our existing and future subsidiaries.

Covenants Related to Our Credit Agreements

We were in compliance with all requirements, tests, limitations, and covenants related to our debt agreements at September 30, 2009.

 

13.

PARTNERS’ CAPITAL:

Under the terms of ETE’s partnership agreement, the limited partners’ potential liability is limited to their investment in the Partnership. The general partner of ETE manages and controls the business and affairs of the Partnership. The limited partners of ETE are not involved in the management and control of ETE.

 

18


Table of Contents

Common Units Issued

The change in Common Units during the nine months ended September 30, 2009 is as follows:

 

    

Number of

Units

Balance, December 31, 2008

       222,829,956  

Issuance of restricted Common Units under long-term incentive plan

   68,292  
    

Balance, September 30, 2009

       222,898,248  
    

Sale of Common Units by Subsidiary

The Parent Company accounts for the difference between the carrying amount of its investment in ETP and the underlying book value arising from issuance of units by ETP (excluding unit issuances to the Parent Company) as a capital transaction. If ETP issues units at a price less than the Parent Company’s carrying value per unit, the Parent Company assesses whether the investment in ETP has been impaired, in which case a provision would be reflected in the statement of operations. The Parent Company did not recognize any impairment related to the issuance of ETP Common Units during the three and nine months ended September 30, 2009.

During 2009, ETP closed on the following public offerings of ETP Common Units which were registered under the Securities Act of 1933 pursuant to a Registration Statement on Form S-3ASR. The net proceeds were used by ETP to repay outstanding borrowings under the ETP Credit Facility, to fund capital expenditures, to fund capital contributions to joint venture entities related to pipeline construction projects, and for general partnership purposes:

 

   

6,900,000 ETP Common Units in January 2009 at $34.05 per ETP Common Unit, resulting in net proceeds of approximately $225.9 million;

 

   

9,775,000 ETP Common Units in April 2009 at $37.55 per ETP Common Unit, resulting in net proceeds of approximately $352.4 million; and

 

   

6,900,000 ETP Common Units in October 2009 at $41.27 per ETP Common Unit, resulting in net proceeds of approximately $276.0 million.

On August 26, 2009, ETP entered into an Equity Distribution Agreement with UBS Securities LLC (“UBS”). Pursuant to this agreement, ETP may offer and sell from time to time through UBS, as their sales agent, ETP Common Units having an aggregate offering price of up to $300.0 million. Sales of the units will be made by means of ordinary brokers’ transactions on the NYSE at market prices, in block transactions or as otherwise agreed between ETP and UBS. Under the terms of this agreement, ETP may also sell ETP Common Units to UBS as principal for its own account at a price agreed upon at the time of sale. Any sale of ETP Common Units to UBS as principal would be pursuant to the terms of a separate agreement between ETP and UBS. As of September 30, 2009, ETP had not issued any ETP Common Units pursuant to this agreement. ETP filed a Registration Statement on Form S-3 with the SEC that was declared effective under the Securities Act of 1933 on August 14, 2009, to register ETP Common Units and debt securities with an aggregate offering price of $1.0 billion that may be offered for sale by ETP from time to time. ETP also filed a Registration Statement on Form S-3 with the SEC to register 12,000,000 currently issued and outstanding ETP Common Units that are currently held by us and may be sold by us from time to time. In addition, ETP also filed a Registration Statement on Form S-4 with the SEC that was declared effective under the Securities Act of 1933 on October 2, 2009, to register 7,500,000 ETP Common Units that may be issued from time to time in connection with one or more acquisitions.

The effects of changes in our ownership in ETP as a result of the above transactions for the nine months ended September 30, 2009 are as follows:

 

     Increase in ETE
    Partners’ Capital (1)    

January 2009 ETP Common Unit offering (2)

     $ 15,567  

April 2009 ETP Common Unit offering (3)

     30,511  
      
     $ 46,078  
      

 

19


Table of Contents
  (1)

The capital transactions are reflected in the Partnership’s condensed consolidated balance sheet at September 30, 2009 as an increase in partners’ capital. No deferred taxes were recorded and the transactions had no effect on the Partnership’s income.

 

  (2)

The Parent Company recorded the difference of $15.6 million between the carrying amount of the Partnership’s investment in ETP and its share of the underlying book value after giving effect to the above January 2009 transaction as a capital transaction based on the Partnership’s ownership in ETP‘s limited partner interests being diluted from 41.09% to 39.31%.

 

  (3)

The Parent Company recorded the difference of $30.5 million between the carrying amount of the Partnership’s investment in ETP and its share of the underlying book value after giving effect to the above April 2009 transaction as a capital transaction based on the Partnership’s ownership in ETP’s limited partner interests being diluted from 39.31% to 37.03%.

Parent Company Quarterly Distributions of Available Cash

Our distribution policy is consistent with the terms of our Partnership Agreement, which requires that we distribute all of our available cash quarterly. The Parent Company’s only cash-generating assets currently consist of distributions from ETP related to limited and general partnership interests, including IDRs in ETP. We currently have no independent operations outside of our interests in ETP.

On February 19, 2009, the Parent Company paid a cash distribution for the three months ended December 31, 2008 of $0.51 per Common Unit, or $2.04 annualized, an increase of $0.12 per Common Unit on an annualized basis to Unitholders of record at the close of business on February 6, 2009.

On May 19, 2009, the Parent Company paid a cash distribution for the three months ended March 31, 2009 of $0.525 per Common Unit, or $2.10 annualized, an increase of $0.06 per Common Unit on an annualized basis to Unitholders of record at the close of business on May 8, 2009.

On August 19, 2009, the Parent Company paid a cash distribution for the three months ended June 30, 2009 of $0.535 per Common Unit, or $2.14 annualized, an increase of $0.04 per Common Unit on an annualized basis to Unitholders of record at the close of business on August 7, 2009.

On October 28, 2009, the Parent Company declared a cash distribution for the three months ended September 30, 2009 of $0.535 per Common Unit, or $2.14 annualized. This distribution will be paid on November 19, 2009 to Unitholders of record at the close of business on November 9, 2009.

ETP’s Quarterly Distributions of Available Cash

ETP is required by its partnership agreement to distribute all cash on hand at the end of each quarter, less appropriate reserves determined by the board of directors of its general partner.

Distributions paid by ETP during the nine months ended September 30, 2009, as well as the amount paid in the aggregate by ETP for ETP GP’s general partner interest in the Partnership and its IDRs, are summarized as follows:

 

        Quarter Ended        

  

        Record Date        

  

    Payment Date    

 

      Amount        

      per Unit        

  

Aggregate General          

    Partner Interest and IDRs    

   December 31, 2008  

       February 6, 2009          February 13, 2009    $       0.89375        $                      83,859          

      March 31, 2009

   May 8, 2009    May 15, 2009            0.89375      89,006          

       June 30, 2009

   August 7, 2009    August 14, 2009            0.89375      89,025          

The total amount of distributions the Parent Company received from ETP during the nine months ended September 30, 2009 relating to its limited partner interests, general partner interests and IDRs of ETP are as follows:

 

Limited Partner Interest

     $     167,580  

General Partner Interest

     14,302  

Incentive Distribution Rights

     247,588  
      

Total distributions received from ETP

     $     429,470  
      

 

20


Table of Contents

On October 28, 2009, ETP declared a cash distribution for the three months ended September 30, 2009 of $0.89375 per Common Unit, or $3.575 annualized. This distribution will be paid on November 16, 2009 to Unitholders of record at the close of business on November 9, 2009.

The total amount of ETP distributions declared related to the nine months ended September 30, 2009 are as follows (all from Available Cash from ETP’s operating surplus):

 

Limited Partners -

  

Common Units

     $       458,836  

Class E Units

     9,363  

General Partner Interest

     14,587  

Incentive Distribution Rights

     255,809  
      
     $       738,595  
      

Based on ETP’s current quarterly distributions of $0.89375 per unit, the Parent Company would be entitled to receive a quarterly cash distribution of approximately $148.2 million (or $592.9 million on an annualized basis), which consists of $4.8 million from the indirect ownership of the general partner interest in ETP, $87.5 million from the indirect ownership of the IDRs in ETP and $55.9 million from the Common Units of ETP.

Accumulated Other Comprehensive Income (Loss)

The following table presents the components of accumulated other comprehensive income (loss) (“AOCI”), net of tax:

 

     September 30,
2009
  December 31,
2008

Net gain (loss) on commodity related derivatives

     $       (15,072)       $ 8,735  

Net loss on interest rate derivatives

     (61,818)       (68,896)  

Unrealized gains (losses) on available-for-sale securities

     775       (5,983)  

Noncontrolling interest

     8,858       (1,681)  
            

Total AOCI, net of tax

     $       (67,257)       $       (67,825)  
            

 

14.

UNIT-BASED COMPENSATION PLANS:

We recognized non-cash compensation expense related to the unit-based compensation plans of ETP and ETE of $6.6 million and $2.3 million for the three months ended September 30, 2009 and 2008, respectively. We recognized non-cash compensation expense related to the unit-based compensation plans of ETP and ETE of $21.4 million and $14.3 million for the nine months ended September 30, 2009 and 2008, respectively.

ETE Long-Term Incentive Plan

As of September 30, 2009, a total of 65,000 unvested units are outstanding under the ETE Long-Term Incentive Plan to employees with vesting over a five-year period at 20% per year. These awards include rights to distributions paid on unvested units. As of September 30, 2009, a total of $0.7 million remains to be recognized as compensation expense during the vesting period related to these employee awards.

As of September 30, 2009, a total of 4,488 restricted units granted to ETE Directors are outstanding under the ETE Long-Term Incentive Plan.

 

21


Table of Contents

ETP Unit-Based Compensation Plans

ETP Employee Grants

The following table shows the activity of the ETP awards during the nine months ended September 30, 2009:

 

    Three-Year   Five-Year                
    Performance Vesting (1)   Service Vesting (2)   Other (3)   Total
    Number of
Units
 

Weighted
Average
   Fair Value   

Per Unit

  Number of
Units
  Weighted
Average
Fair Value
Per Unit
  Number of
Units
  Weighted
Average
Fair Value
Per Unit
  Number of
Units
  Weighted
Average
Fair Value
Per Unit

Unvested awards as of December 31, 2008

          150,852    $    43.96             1,205,430      $    35.87             8,976       $    43.48        1,365,258    $    36.81 

Awards granted

    -           35,850    34.60     -     -     35,850    34.60 

Awards vested

  (2,036)    43.96         (61,210)    40.16     -     -     (63,246)    40.28 

Awards forfeited

  (3,336)    43.96         (23,531)    36.51     -     -     (26,867)    37.44 
                       

Unvested awards as of
September 30, 2009

          145,480    43.96             1,156,539    35.59             8,976     43.48        1,310,995    36.57 
                       

 

  (1)

Includes awards subject to performance objectives and continued employment.

 

  (2)

Includes awards for which vesting is subject to continued employment.

 

  (3)

Includes special grants and awards issued with other vesting conditions.

As of September 30, 2009, a total of 4,793,350 ETP Common Units remain available to be awarded under ETP’s equity incentive plans.

ETP recognized non-cash compensation expense related to employee grants under its unit-based compensation plans of $4.9 million and $1.1 million for the three months ended September 30, 2009 and 2008, respectively. ETP recognized non-cash compensation expense related to employee grants under its unit-based compensation plans of $15.7 million and $12.5 million for the nine months ended September 30, 2009 and 2008, respectively. The total expected non-cash compensation expense to be recognized related to ETP’s unvested employee awards as of September 30, 2009 is:

 

        Years

       Ending

    December 31:        

   

 2009 (remainder)

  $ 4,206

 2010

    10,038

 2011

    5,896

 2012

    3,089

 2013

    1,010

ETP Director Grants

The following table shows the activity of the ETP director grants during the nine months ended September 30, 2009:

 

     Number of
Units
   Weighted
Average
Fair Value
Per Unit

Unvested awards as of December 31, 2008

   7,310        $ 40.72  

Awards granted

   4,340        33.28  

Awards vested

   (3,530)        43.68  
       

Unvested awards as of September 30, 2009

   8,120        35.46  
       

ETP recognized non-cash compensation expense related to director grants under its unit-based compensation plans of $0.04 million and $0.05 million for the three months ended September 30, 2009 and 2008, respectively. ETP recognized non-cash compensation expense

 

22


Table of Contents

related to director grants under its unit-based compensation plans of $0.12 million and $0.12 million for the nine months ended September 30, 2009 and 2008, respectively. The total expected non-cash compensation expense to be recognized related to the ETP unvested director grants as of September 30, 2009 is:

 

        Years

        Ending

    December 31:        

    

 2009 (remainder)

   $         37

 2010

     118

 2011

     41

 2012

     10

Related Party Awards

During 2007 and 2008, a partnership (McReynolds Energy Partners, L.P.), the general partner of which is owned and controlled by our President, awarded to certain officers of ETP certain rights related to units of ETE previously issued by ETE to such officer. As of September 30, 2009, rights related to 627,000 unvested ETE units remained outstanding. In June 2008, 240,000 unit awards were forfeited due to the resignation of an officer of ETP. For the three months ended September 30, 2009 and 2008, we recognized non-cash compensation expense, net of forfeitures, of $1.5 million and $1.2 million, respectively. For the nine months ended September 30, 2009 and 2008, we recognized non-cash compensation expense, net of forfeitures, of $5.1 million and $1.7 million, respectively, related to these awards.

 

15.

REGULATORY MATTERS, COMMITMENTS, CONTINGENCIES AND ENVIRONMENTAL LIABILITIES:

Regulatory Matters

Approval from the FERC is pending on our current pipeline construction projects, including our joint venture projects, as discussed in Note 8, and the Tiger Pipeline. We initiated public review of the Tiger pipeline pursuant to the FERC’s National Environmental Policy Act (“NEPA”) pre-filing review process in March 2009.

On September 29, 2006, Transwestern filed revised tariff sheets under Section 4(e) of the Natural Gas Act (“NGA”) proposing a general rate increase to be effective on November 1, 2006. In April 2007, the FERC approved a Stipulation and Agreement of Settlement that resolved the primary components of the rate case. Transwestern’s tariff rates and fuel rates are now final for the period of the settlement. Transwestern is required to file a new rate case no later than October 1, 2011.

The Phoenix project, as filed with the FERC on September 15, 2006, includes the construction and operation of approximately 260 miles of 36-inch or larger diameter pipeline extending from Transwestern’s existing mainline in Yavapai County, Arizona to delivery points in the Phoenix, Arizona area and certain looping on Transwestern’s existing San Juan Lateral with approximately 25 miles of 36-inch diameter pipeline. On November 15, 2007, the FERC issued an order granting Transwestern its Certificate of Public Convenience and Necessity (“Order”). Pursuant to the Order, Transwestern filed its initial Implementation Plan on November 14, 2007 and accepted the Order on November 19, 2007. The San Juan Lateral portion of the project was placed in service effective July 2008 and the pipeline to the Phoenix area was placed in service effective March 2009.

Guarantees

We have guaranteed 50% of the obligations of MEP under its revolving credit facility (the “MEP Facility”), with the remaining 50% of MEP Facility obligations guaranteed by KMP. Subject to certain exceptions, our guarantee may be proportionately increased or decreased if our ownership percentage of MEP increases or decreases. The MEP Facility is unsecured and matures on February 28, 2011. The MEP Facility is syndicated among multiple financial institutions.

As of September 30, 2009, MEP had $371.6 million of outstanding borrowings and $33.3 million of letters of credit issued under the MEP Facility. Our contingent obligations with respect to our 50% guarantee of MEP’s outstanding borrowings and letters of credit were $185.8 million and $16.6 million, respectively, as of September 30, 2009.

 

23


Table of Contents

In September 2009, MEP issued senior notes totaling $800.0 million, the proceeds of which were used to repay borrowings under the MEP Facility. The senior notes issued by MEP are not guaranteed by ETP or KMP. In October 2009, we made an additional capital contribution of $200 million to MEP, which MEP used to further reduce the outstanding borrowings under the MEP facility. Subsequent to this repayment, the commitment amount under the MEP Facility was reduced from $1.4 billion to $275 million.

Commitments

In the normal course of our business, we purchase, process and sell natural gas pursuant to long-term contracts and enter into long-term transportation and storage agreements. Such contracts contain terms that are customary in the industry. We have also entered into several propane purchase and supply commitments, which are typically one year agreements with varying terms as to quantities, prices and expiration dates. We also have a contract to purchase not less than 90.0 million gallons per year that expires in 2015. We believe that the terms of these agreements are commercially reasonable and will not have a material adverse effect on our financial position or results of operations.

We have certain non-cancelable leases for property and equipment that require fixed monthly rental payments and expire at various dates through 2020. Rental expense under these operating leases has been included in operating expenses in the accompanying statements of operations and totaled approximately $6.0 million and $6.3 million for the three months ended September 30, 2009 and 2008, respectively. For the nine months ended September 30, 2009 and 2008, rental expense totaled approximately $17.5 million and $21.7 million, respectively, for operating leases. In connection with our acquisition of ETG (see Note 17) in August 2009, we assumed operating leases with future minimum payments of approximately $5 million per year through July 2017.

As discussed in Note 8, we also have commitments to make capital contributions to our joint ventures.

Litigation and Contingencies

We may, from time to time, be involved in litigation and claims arising out of our operations in the normal course of business. Natural gas and propane are flammable, combustible gases. Serious personal injury and significant property damage can arise in connection with their transportation, storage or use. In the ordinary course of business, we are sometimes threatened with or named as a defendant in various lawsuits seeking actual and punitive damages for product liability, personal injury and property damage. We maintain liability insurance with insurers in amounts and with coverage and deductibles management believes are reasonable and prudent, and which are generally accepted in the industry. However, there can be no assurance that the levels of insurance protection currently in effect will continue to be available at reasonable prices or that such levels will remain adequate to protect us from material expenses related to product liability, personal injury or property damage in the future.

FERC/CFTC and Related Matters. On July 26, 2007, the FERC issued to us an Order to Show Cause and Notice of Proposed Penalties (the “Order and Notice”) that contains allegations that ETP violated FERC rules and regulations. The FERC alleged that ETP engaged in manipulative or improper trading activities in the Houston Ship Channel, primarily on two dates during the fall of 2005 following the occurrence of Hurricanes Katrina and Rita, as well as on eight other occasions from December 2003 through August 2005, in order to benefit financially from our commodities derivatives positions and from certain of our index-priced physical gas purchases in the Houston Ship Channel. The FERC alleged that during these periods ETP violated the FERC’s then-effective Market Behavior Rule 2, an anti-market manipulation rule promulgated by the FERC under authority of the NGA. The FERC alleges that ETP violated this rule by artificially suppressing prices that were included in the Platts Inside FERC Houston Ship Channel index, published by McGraw-Hill Companies, on which the pricing of many physical natural gas contracts and financial derivatives are based. In its Order and Notice, the FERC also alleged that ETP manipulated daily prices at the Waha and Permian Hubs in west Texas on two dates. In its Order and Notice, the FERC specified that it was seeking $69.9 million in disgorgement of profits, plus interest, and $82.0 million in civil penalties relating to these market manipulation claims. The FERC specified that it was also seeking to revoke, for a period of 12 months, ETP’s blanket marketing authority for sales of natural gas in interstate commerce at market-based prices.

 

24


Table of Contents

In February 2008, the Enforcement Staff also recommended that the FERC pursue market manipulation claims related to ETP’s trading activities in October 2005 for November 2005 monthly deliveries, a period not previously covered by FERC’s allegations in the Order and Notice, and that ETP be assessed an additional civil penalty of $25.0 million and be required to disgorge approximately $7.3 million of alleged unjust profits related to this additional month.

On August 26, 2009, ETP entered into a settlement agreement with the Enforcement Staff with respect to the pending FERC claims against ETP and, on September 21, 2009, the FERC approved the settlement agreement without modification. The agreement settles all outstanding FERC claims against ETP and provides that ETP make a $5 million payment to the federal government and establish a $25 million fund for the purpose of settling related third party claims against ETP, including existing litigation claims as well as any new claims that may be asserted against this fund. An administrative law judge appointed by the FERC will determine the validity of any third party claim against this fund. Any party who receives money from this fund will be required to waive all claims against ETP related to this matter. Pursuant to the settlement agreement, the FERC will make no findings of fact or conclusions of law. In addition, the settlement agreement specifies that ETP does not admit or concede to any third party any actual or potential fault, wrongdoing or liability in connection with ETP’s alleged conduct related to the FERC claims.

In addition to the FERC legal action, third parties have asserted claims and may assert additional claims against us and ETP alleging damages related to these matters. In this regard, several natural gas producers and a natural gas marketing company have initiated legal proceedings in Texas state courts against us and ETP for claims related to the FERC claims. These suits contain contract and tort claims relating to alleged manipulation of natural gas prices at the Houston Ship Channel and the Waha Hub in West Texas, as well as the natural gas price indices related to these markets and the Permian Basin natural gas price index during the period from December 2003 through December 2006, and seek unspecified direct, indirect, consequential and exemplary damages. One of the suits against us and ETP contains an additional allegation that we and ETP transported gas in a manner that favored our affiliates and discriminated against the plaintiff, and otherwise artificially affected the market price of gas to other parties in the market. We have moved to compel arbitration and/or contested subject-matter jurisdiction in some of these cases. In one of these cases, the Texas Supreme Court ruled on July 3, 2009 that the state district court erred in ruling that a plaintiff was entitled to pre-arbitration discovery and therefore remanded to the state district court with a direction to rule on our original motion to compel arbitration pursuant to the terms of the arbitration clause in a natural gas contract between us and the plaintiff. This plaintiff has filed a motion with the Texas Supreme Court requesting a rehearing of the ruling.

We have also been served with a complaint from an owner of royalty interests in natural gas producing properties, individually and on behalf of a putative class of similarly situated royalty owners, working interest owners and producer/operators, seeking arbitration to recover damages based on alleged manipulation of natural gas prices at the Houston Ship Channel. We filed an original action in Harris County state court seeking a stay of the arbitration on the ground that the action is not arbitrable, and the state court granted our motion for summary judgment on that issue. This action is currently on appeal before the First Court of Appeals, Houston.

A consolidated class action complaint has been filed against ETP in the United States District Court for the Southern District of Texas. This action alleges that ETP engaged in intentional and unlawful manipulation of the price of natural gas futures and options contracts on the NYMEX in violation of the Commodity Exchange Act (“CEA”). It is further alleged that during the class period December 29, 2003 to December 31, 2005, ETP had the market power to manipulate index prices, and that it used this market power to artificially depress the index prices at major natural gas trading hubs, including the Houston Ship Channel, in order to benefit its natural gas physical and financial trading positions, and that ETP intentionally submitted price and volume trade information to trade publications. This complaint also alleges that ETP violated the CEA by knowingly aiding and abetting violations of the CEA. The plaintiffs state that this allegedly unlawful depression of index prices by ETP manipulated the NYMEX prices for natural gas futures and options contracts to artificial levels during the class period, causing unspecified damages to the plaintiffs and all other members of the putative class who sold natural gas futures or who purchased and/or sold natural gas options contracts on NYMEX during the class period. The plaintiffs have requested certification of their suit as a class action and seek unspecified damages, court costs and other appropriate relief. On January 14, 2008, ETP filed a motion to dismiss this suit on the grounds of failure to allege facts sufficient to state a claim. On March 20, 2008, the plaintiffs filed a second consolidated class action complaint. In response to this new pleading, on May 5, 2008, ETP filed a motion to dismiss the complaint. On March 26, 2009, the court issued an order dismissing the complaint, with prejudice, for failure to state a claim. On April 9, 2009, the plaintiffs moved for reconsideration of the order dismissing the complaint, and on August 26, 2009, the court denied the plaintiffs’ motion for reconsideration. On September 28, 2009, these decisions were appealed by the plaintiffs to the United States Court of Appeals for the Fifth Circuit.

 

25


Table of Contents

On March 17, 2008, a second class action complaint was filed against ETP in the United States District Court for the Southern District of Texas. This action alleges that ETP engaged in unlawful restraint of trade and intentional monopolization and attempted monopolization of the market for fixed-price natural gas baseload transactions at the Houston Ship Channel from December 2003 through December 2005 in violation of federal antitrust law. The complaint further alleges that during this period ETP exerted monopoly power to suppress the price for these transactions to non-competitive levels in order to benefit its own physical natural gas positions. The plaintiff has, individually and on behalf of all other similarly situated sellers of physical natural gas, requested certification of its suit as a class action and seeks unspecified treble damages, court costs and other appropriate relief. On May 19, 2008, ETP filed a motion to dismiss this complaint. On March 26, 2009, the court issued an order dismissing the complaint. The court found that the plaintiffs failed to state a claim on all causes of action and for anti-trust injury but granted leave to amend. On April 23, 2009, the plaintiffs filed a motion for leave to amend to assert a claim for common law fraud and attached a proposed amended complaint as an exhibit. ETP opposed the motion and cross-moved to dismiss. On August 7, 2009, the court denied the plaintiff’s motion and granted our motion to dismiss the complaint. On September 10, 2009, this decision was appealed by the plaintiff to the United States Court of Appeals for the Fifth Circuit.

We are expensing the legal fees, consultants’ fees and other expenses relating to these matters in the periods in which such expenses are incurred. We record accruals for litigation and other contingencies whenever required by applicable accounting standards. Based on the terms of the settlement agreement with the FERC described above, we increased our accrual for these matters to $30.0 million in the aggregate as of September 30, 2009. We expect the after-tax cash impact of the settlement to be less than $30.0 million due to tax benefits resulting from the portion of the accrual that is used to satisfy third party claims, which we expect to realize in future periods. Although this accrual covers the $25.0 million required by the settlement agreement to be applied to resolve third party claims, including the existing third party litigation described above, it is possible that the amount we become obliged to pay to resolve third party litigation related to these matters, whether on a negotiated settlement basis or otherwise, will exceed the amount of the new accrual related to these matters. In accordance with applicable accounting standards, we will review the amount of our accrual related to these matters as developments related to these matters occur and we will adjust our accrual if we determine that it is probable that the amount we may ultimately become obliged to pay as a result of the final resolution of these matters is greater than the amount of our accrual for these matters. As our accrual amounts are non-cash, any cash payment of an amount in resolution of these matters would likely be made from cash from operations or borrowings, which payments would reduce our cash available to service our indebtedness either directly or as a result of increased principal and interest payments necessary to service any borrowings incurred to finance such payments. If these payments are substantial, we may experience a material adverse impact on our results of operations and our liquidity.

In re Natural Gas Royalties Qui Tam Litigation. MDL Docket No. 1293 (D. WY), Jack Grynberg, an individual, has filed actions against a number of companies, including Transwestern, now transferred to the U.S. District Court for the District of Wyoming, for damages for mis-measurement of gas volumes and Btu content, resulting in lower royalties to mineral interest owners. On October 20, 2006, the District Judge adopted in part the earlier recommendation of the Special Master in the case and ordered the dismissal of the case against Transwestern. Transwestern believes that its measurement practices conformed to the terms of its FERC Gas Tariff, which were filed with and approved by the FERC. As a result, Transwestern believes that is has meritorious defenses to these lawsuits (including FERC-related affirmative defenses, such as the filed rate/tariff doctrine, the primary/exclusive jurisdiction of the FERC, and the defense that Transwestern complied with the terms of its tariffs) and will continue to vigorously defend against them, including any appeal which may be taken from the dismissal of the Grynberg case. A hearing was held on April 24, 2007 regarding Transwestern’s Supplemental Brief for Attorneys’ fees, which was filed on January 8, 2007, and the issues are submitted and are awaiting a decision. Grynberg moved to have the cases he appealed remanded to the district court for consideration in light of a recently issued Supreme Court case. The defendants/appellees opposed the motion. The Tenth Circuit motions panel referred the remand motion to the merits panel to be carried with the appeals. Grynberg’s opening brief was filed on or about July 31, 2007. Appellee’s opposition brief was filed on or about November 21, 2007. Appellee Transwestern filed its separate response brief on January 11, 2008 and Grynberg’s reply brief was filed in June 2008 and the hearing on all briefs was held in September 2008. On March 17, 2009, the Tenth Circuit affirmed the District Court’s dismissal. Appellant sought appellate rehearing on the matter and the petition for rehearing was denied on May 4, 2009. A petition for writ of certiorari was filed by the Appellant on August 3, 2009, and the Supreme Court denied the petition for writ of certiorari on October 5, 2009. We do not believe the outcome of this case will have a material adverse effect on our financial position, results of operations or cash flows.

 

26


Table of Contents

Houston Pipeline Cushion Gas Litigation. At the time of the HPL System acquisition, AEP Energy Services Gas Holding Company II, L.L.C., HPL Consolidation LP and its subsidiaries (the “HPL Entities”), their parent companies and American Electric Power Corporation (“AEP”), were engaged in ongoing litigation with Bank of America (“B of A”) that related to AEP’s acquisition of HPL in the Enron bankruptcy and B of A’s financing of cushion gas stored in the Bammel Storage Facility (“Cushion Gas”). This litigation is referred to as the “Cushion Gas Litigation”. Under the terms of the Purchase and Sale Agreement and the related Cushion Gas Litigation Agreement, AEP and its subsidiaries that were the sellers of the HPL Entities retained control of the Cushion Gas Litigation and have agreed to indemnify ETC OLP and the HPL Entities for any damages arising from the Cushion Gas Litigation and the loss of use of the Cushion Gas, up to a maximum of the amount paid by ETC OLP for the HPL Entities and the working gas inventory (approximately $1.00 billion in the aggregate). The Cushion Gas Litigation Agreement terminates upon final resolution of the Cushion Gas Litigation. In addition, under the terms of the Purchase and Sale Agreement, AEP retained control of additional matters relating to ongoing litigation and environmental remediation and agreed to bear the costs of or indemnify ETC OLP and the HPL Entities for the costs related to such matters. On December 18, 2007, the United States District Court for the Southern District of New York held that B of A is entitled to receive monetary damages from AEP and the HPL Entities of approximately $347.3 million less the monetary amount B of A would have incurred to remove 55 Bcf of natural gas from the Bammel Storage Facility. AEP is appealing the court decision. Based on the indemnification provisions of the Cushion Gas Litigation Agreement, ETP does not expect that it will be liable for any portion of this court award.

Other Matters. In addition to those matters described above, we or our subsidiaries are a party to various legal proceedings and/or regulatory proceedings incidental to our businesses. For each of these matters, we evaluate the merits of the case, our exposure to the matter, possible legal or settlement strategies, the likelihood of an unfavorable outcome and the availability of insurance coverage. If we determine that an unfavorable outcome of a particular matter is probable, can be estimated and is not covered by insurance, we make an accrual for the matter. For matters that are covered by insurance, we accrue the related deductible. As of September 30, 2009 and December 31, 2008, accruals of approximately $9.5 million and $8.5 million, respectively, were recorded related to deductibles. As new information becomes available, our estimates may change. The impact of these changes may have a significant effect on our results of operations in a single period.

The outcome of these matters cannot be predicted with certainty and it is possible that the outcome of a particular matter will result in the payment of an amount in excess of the amount accrued for the matter. As our accrual amounts are non-cash, any cash payment of an amount in resolution of a particular matter would likely be made from cash from operations or borrowings. If cash payments to resolve a particular matter substantially exceed our accrual for such matter, we may experience a material adverse impact on our results of operations, cash available for distribution and our liquidity.

As of September 30, 2009 and December 31, 2008, accruals of approximately $30.0 million and $21.0 million, respectively, were recorded as accrued and other current liabilities and other non-current liabilities on our condensed consolidated balance sheets for our contingencies and current litigation matters, excluding accruals related to environmental matters and matters covered by insurance as described above.

Environmental Matters

Our operations are subject to extensive federal, state and local environmental laws and regulations that require expenditures for remediation at operating facilities and waste disposal sites. Although we believe our operations are in substantial compliance with applicable environmental laws and regulations, risks of additional costs and liabilities are inherent in the natural gas pipeline and processing business, and there can be no assurance that significant costs and liabilities will not be incurred. Moreover, it is possible that other developments, such as increasingly stringent environmental laws, regulations and enforcement policies thereunder, and claims for damages to property or persons resulting from the operations, could result in substantial costs and liabilities. Accordingly, we have adopted policies, practices and procedures in the areas of pollution control, product safety, occupational health, and the handling, storage, use and disposal of hazardous materials to prevent material environmental or other damage, and to limit the financial liability, which could result from such events. However, some risk of environmental or other damage is inherent in the natural gas pipeline and processing business, as it is with other entities engaged in similar businesses.

 

27


Table of Contents

Transwestern conducts soil and groundwater remediation at a number of its facilities. Some of the clean up activities include remediation of several compressor sites on the Transwestern system for historical contamination by polychlorinated biphenyls (“PCBs”) and the costs of this work are not eligible for recovery in rates. The total accrued future estimated cost of remediation activities expected to continue through 2018 is $8.7 million. Transwestern received FERC approval for rate recovery of projected soil and groundwater remediation costs not related to PCBs effective April 1, 2007.

Transwestern continues to incur certain costs related to PCBs that might have migrated through its pipelines into customers’ facilities in the past. Transwestern, as part of ongoing arrangements with customers, continues to incur costs associated with containing and removing the PCBs. Costs of these remediation activities were minimal for both the three and nine months ended September 30, 2009. Future costs cannot be reasonably estimated because remediation activities are undertaken as potential claims are made by customers and former customers, and accordingly, no accrual has been established for these costs at September 30, 2009. However, such future costs are not expected to have a material impact on our financial position, results of operations or cash flows.

Environmental regulations were recently modified for the U.S. Environmental Protection Agency’s (the “EPA”) Spill Prevention, Control and Countermeasures (“SPCC”) program. We are currently reviewing the impact to our operations and expect to expend resources on tank integrity testing and any associated corrective actions as well as potential upgrades to containment structures. Costs associated with tank integrity testing and resulting corrective actions cannot be reasonably estimated at this time, but we believe such costs will not have a material adverse effect on our financial position, results of operations or cash flows.

In July 2001, HOLP acquired a company that had previously received a request for information from the EPA regarding potential contribution to a widespread groundwater contamination problem in San Bernardino, California, known as the Newmark Groundwater Contamination. Although the EPA has indicated that the groundwater contamination may be attributable to releases of solvents from a former military base located within the subject area that occurred long before the facility acquired by HOLP was constructed, it is possible that the EPA may seek to recover all or a portion of groundwater remediation costs from private parties under the Comprehensive Environmental Response, Compensation, and Liability Act (commonly called Superfund). We have not received any follow-up correspondence from the EPA on the matter since our acquisition of the predecessor company in 2001. Based upon information currently available to HOLP, it is believed that HOLP’s liability if such action were to be taken by the EPA would not have a material adverse effect on our financial condition or results of operations.

Petroleum-based contamination or environmental wastes are known to be located on or adjacent to six sites on which HOLP presently has, or formerly had, retail propane operations. These sites were evaluated at the time of their acquisition. In all cases, remediation operations have been or will be undertaken by others, and in all six cases, HOLP obtained indemnification rights for expenses associated with any remediation from the former owners or related entities. We have not been named as a potentially responsible party at any of these sites, nor have our operations contributed to the environmental issues at these sites. Accordingly, no amounts have been recorded in our condensed consolidated balance sheets. Based on information currently available to us, such projects are not expected to have a material adverse effect on our financial condition or results of operations.

Environmental exposures and liabilities are difficult to assess and estimate due to unknown factors such as the magnitude of possible contamination, the timing and extent of remediation, the determination of our liability in proportion to other parties, improvements in cleanup technologies and the extent to which environmental laws and regulations may change in the future. Although environmental costs may have a significant impact on the results of operations for any single period, we believe that such costs will not have a material adverse effect on our financial position.

As of September 30, 2009 and December 31, 2008, an accrual on an undiscounted basis of $12.8 million and $13.3 million, respectively, was recorded in our condensed consolidated balance sheets as accrued and other current liabilities and other non-current liabilities to cover environmental liabilities related to certain matters assumed in connection with the HPL System acquisition, the Transwestern acquisition and the potential environmental liabilities for three sites that were formerly owned by Titan or its predecessors.

Based on information available at this time and reviews undertaken to identify potential exposure, we believe the amount reserved for all of the above environmental matters is adequate to cover the potential exposure for clean-up costs.

 

28


Table of Contents

Our pipeline operations are subject to regulation by the U.S. Department of Transportation under the Pipeline Hazardous Materials Safety Administration (“PHMSA”), pursuant to which the PHMSA has established requirements relating to the design, installation, testing, construction, operation, replacement and management of pipeline facilities. Moreover, the PHMSA, through the Office of Pipeline Safety, has promulgated a rule (the “IMP Rule”) requiring pipeline operators to develop integrity management programs to comprehensively evaluate their pipelines, and take measures to protect pipeline segments located in what the rule refers to as “high consequence areas”. Activities under these integrity management programs involve the performance of internal pipeline inspections, pressure testing or other effective means to assess the integrity of these regulated pipeline segments, and the regulations require prompt action to address integrity issues raised by the assessment and analysis. For the three months ended September 30, 2009 and 2008, $9.3 million and $6.8 million, respectively, of capital costs and $3.6 million and $2.0 million, respectively, of operating and maintenance costs have been incurred for pipeline integrity testing. For the nine months ended September 30, 2009 and 2008, $24.6 million and $12.3 million, respectively, of capital costs and $12.6 million and $12.7 million, respectively, of operating and maintenance costs have been incurred for pipeline integrity testing. Integrity testing and assessment of all of these assets will continue, and the potential exists that results of such testing and assessment could cause us to incur even greater capital and operating expenditures for repairs or upgrades deemed necessary to ensure the continued safe and reliable operation of our pipelines.

 

16.

PRICE RISK MANAGEMENT ASSETS AND LIABILITIES:

Commodity Price Risk

We are exposed to market risks related to the volatility of natural gas, NGL and propane prices. To manage the impact of volatility from these prices, we utilize various exchange-traded and over-the-counter (“OTC”) commodity financial instrument contracts. These contracts consist primarily of futures and swaps and are recorded at fair value in the condensed consolidated balance sheets. In general, we use derivatives to eliminate market exposure and price risk within our segments as follows:

 

   

Derivatives are utilized in our midstream segment in order to mitigate price volatility in our marketing activities and manage fixed price exposure incurred from contractual obligations.

 

   

We use derivative financial instruments in connection with our natural gas inventory at the Bammel Storage Facility by purchasing physical natural gas and then selling financial contracts at a price sufficient to cover its carrying costs and provide a gross profit margin. We also use derivatives in our intrastate transportation and storage segment to hedge the sales price of retention gas and hedge location price differentials related to the transportation of natural gas.

 

   

Our propane segment permits customers to guarantee the propane delivery price for the next heating season. As we execute fixed sales price contracts with our customers, we may enter into propane futures contracts to fix the purchase price related to these sales contracts, thereby locking in a gross profit margin. Additionally, we may use propane futures contracts to secure the purchase price of our propane inventory for a percentage of our anticipated propane sales.

We have a risk management policy that specifies the manner in which derivative financial instruments are employed and monitored in connection with underlying asset, liability and/or anticipated transactions. Furthermore, on a bi-weekly basis, management reviews the creditworthiness of the derivative counterparties to manage against the risk of default.

The market prices used to value our financial derivatives and related transactions have been determined using independent third party prices, readily available market information, broker quotes and appropriate valuation techniques.

Non-trading Activities

If we designate a derivative financial instrument as a cash flow hedge and it qualifies for hedge accounting, the change in the fair value is deferred in AOCI until the underlying hedged transaction occurs. Any ineffective portion of a cash flow hedge’s change in fair value is recognized each period in earnings. Gains and losses deferred in AOCI related to cash flow hedges remain in AOCI until the underlying physical transaction occurs, unless it is probable that the forecasted transaction will not occur by the end of the originally specified time period or within an additional two-month period of time thereafter. For financial derivative instruments that do not qualify for hedge accounting, the change in fair value is recorded in cost of products sold in the condensed consolidated statements of operations.

 

29


Table of Contents

We expect losses of $11.7 million related to commodity derivatives to be reclassified into earnings over the next twelve months related to amounts currently reported in AOCI. The amount ultimately realized, however, will differ as commodity prices change and the underlying physical transaction occurs.

If we designate a hedging relationship as a fair value hedge, we record the changes in fair value of the hedged asset or liability in cost of products sold in our condensed consolidated statement of operations. This amount is offset by the changes in fair value of the related hedging instrument. Any ineffective portion or amount excluded from the assessment of hedge ineffectiveness is also included in the cost of products sold in the condensed consolidated statement of operations.

We use futures and basis swaps, designated as fair value hedges, to hedge our natural gas inventory stored in our Bammel Storage Facility. Changes in the spreads between the forward natural gas prices designated as fair value hedges and the physical Bammel inventory spot price result in unrealized margins until the underlying physical gas is withdrawn and the related designated derivatives are settled. Once the gas is withdrawn and the designated derivatives are settled, the previously unrealized gains or losses associated with these positions are realized.

We attempt to maintain balanced positions in our non-trading activities to protect ourselves from the volatility in the energy commodities markets; however, net unbalanced positions can exist. Long-term physical contracts are tied to index prices. System gas, which is also tied to index prices, is expected to provide most of the gas required by our long-term physical contracts. When third-party gas is required to supply long-term contracts, a hedge is put in place to protect the margin on the contract. Financial contracts, which are not tied to physical delivery, are expected to be offset with financial contracts to balance our positions. To the extent open commodity positions exist, fluctuating commodity prices can impact our financial position and results of operations, either favorably or unfavorably.

Trading Activities

As of July 2008, we no longer engage in the trading of commodity derivative instruments that are not substantially offset by physical or other commodity derivative positions. As a result, we no longer have any material exposure to market risk from such activities. The derivative contracts that were previously entered into for trading purposes were recognized in the condensed consolidated balance sheets at fair value, and changes in the fair value of these derivative instruments are recognized in revenue in the condensed consolidated statements of operations on a net basis. There were no gains or losses associated with trading activities during the nine months ended September 30, 2009. Trading activities, including trading of physical gas and financial derivative instruments, resulted in net losses of approximately $26.2 million for the nine months ended September 30, 2008.

The following table details the outstanding commodity-related derivatives:

 

          September 30, 2009    December 31, 2008
     Commodity        Notional      
    Volume      
       Maturity                Notional    
        Volume    
       Maturity    

Mark to Market Derivatives

              

Basis Swaps IFERC/NYMEX (MMBtu)

   Natural Gas    78,932,500     2009-2011    15,720,000      2009-2011

Swing Swaps IFERC (MMBtu)

   Natural Gas    (53,500,000)    2009-2010    (58,045,000)     2009

Fixed Swaps/Futures (MMBtu)

   Natural Gas    (3,755,000)    2009-2011    (20,880,000)     2009-2010

Forwards/Swaps (Gallons)

     Propane/Ethane      11,718,000     2009-2010    47,313,002      2009

Fair Value Hedging Derivatives

              

Basis Swaps IFERC/NYMEX (MMBtu)

   Natural Gas    (31,095,000)    2009-2010    -          N/A

Fixed Swaps/Futures (MMBtu)

   Natural Gas    (31,967,500)    2009-2010    -          N/A

Hedged Item - Inventory

   Natural Gas    31,967,500     2009-2010    -          N/A

Cash Flow Hedging Derivatives

              

Basis Swaps IFERC/NYMEX (MMBtu)

   Natural Gas    (16,830,000)    2009-2010    (9,085,000)     2009

Fixed Swaps/Futures (MMBtu)

   Natural Gas    (27,625,000)    2009-2010    (9,085,000)     2009

Forward/Swaps (Gallons)

   Propane/Ethane    28,518,000     2009-2010    -          N/A

 

30


Table of Contents

Interest Rate Risk

We are exposed to market risk for changes in interest rates. We manage a portion of our current and future interest rate exposures by utilizing interest rate swaps.

We have the following interest rate swaps outstanding as of September 30, 2009:

 

   

Forward starting swaps with a notional amount of $500.0 million to pay an average fixed rate of 3.99% and receive a floating rate based on LIBOR. These swaps settle in December 2009;

 

   

Interest rate swaps with a notional amount of $300.0 million to pay an average fixed rate of 5.20% and receive a floating rate based on LIBOR. These swaps settle in May 2016;

 

   

Interest rate swaps with a notional amount of $500.0 million to pay a fixed rate of 4.57% and receive a floating rate based on LIBOR. These swaps settle in November 2012 with a cancellable option in November 2010; and,

 

   

Interest rate swaps with a notional amount of $700.0 million to pay an average fixed rate of 4.84% and receive a floating rate based on LIBOR. These swaps settle in November 2012.

In April 2009, the Partnership terminated forward starting swaps with notional amounts of $100.0 million and $150.0 million for an insignificant amount.

Derivative Summary

The following table provides a balance sheet overview of the Partnership’s derivative assets and liabilities as of September 30, 2009 and December 31, 2008:

 

              Fair Value of Derivative Instruments
              Asset Derivatives    Liability Derivatives
                September 30,        December 31,        September 30,        December 31,  
   

Balance Sheet Location

   2009    2008    2009    2008

Derivatives designated as hedging instruments:

                

Commodity Derivatives (margin deposits)

 

Deposits Paid to Vendors

        $ 331       $ 10,665       $ (32,831)       $ (1,504) 

Commodity Derivatives

 

Price Risk Management Assets/Liabilities

        4,345       918       (175)       (119) 

Interest Rate Swap Derivatives

 

Price Risk Management Assets/Liabilities

                  (67,172)       (71,042) 
                                

Total derivatives designated as hedging instruments

        $ 4,676       $ 11,583       $ (100,178)       $ (72,665) 
                                

Derivatives not designated as hedging instruments:

              

Commodity Derivatives (margin deposits)

 

Deposits Paid to Vendors

        $ 41,613       $ 432,614       $ (18,305)       $ (335,685) 

Commodity Derivatives

 

Price Risk Management Assets/Liabilities

        2,607       17,244       (261)       (55,954) 

Interest Rate Swap Derivatives

 

Price Risk Management Assets/Liabilities

                  (105,190)       (149,765) 
                                

Total derivatives not designated as hedging instruments

        $ 44,220       $ 449,858       $ (123,756)       $ (541,404) 
                                

Total derivatives

          $     48,896       $     461,441       $     (223,934)       $     (614,069) 
                                

We disclose the non-exchange traded financial derivative instruments as price risk management assets and liabilities on our consolidated balance sheets at fair value with amounts classified as either current or long-term depending on the anticipated settlement date.

We utilize master-netting agreements and have maintenance margin deposits with certain counterparties in the OTC market and with clearing brokers. Payments on margin deposits are required when the value of a derivative exceeds our pre-established credit limit with the counterparty. Margin deposits are returned to us on the settlement date for non-exchange traded derivatives. We exchange margin calls on a daily basis for exchange traded transactions. Since the margin calls are made daily with the exchange brokers, the fair value of the financial derivative instruments are deemed current and netted in deposits paid to vendors in the condensed consolidated balance sheets. The Partnership had net deposits with counterparties of $99.3 million and $78.2 million as of September 30, 2009 and December 31, 2008, respectively, reflected as deposits paid to vendors in our condensed consolidated balance sheets.

 

31


Table of Contents

The following tables detail the effect of the Partnership’s derivative assets and liabilities in the condensed consolidated statements of operations for the periods presented:

 

   

Location of Gain/(Loss)
Reclassified from AOCI into

Income (Effective and

Ineffective Portion)

   Change in Value Recognized
in OCI on Derivatives
(Effective Portion)
   Amount of Gain/(Loss)
Reclassified from AOCI into
Income (Effective Portion)
   Amount of Gain/(Loss)
Recognized in Income on
Ineffective Portion of
Derivatives
         Three Months Ended
September 30,
   Three Months Ended
September 30,
   Three Months Ended
September 30,
         2009    2008    2009    2008    2009    2008

Derivatives in cash flow hedging relationships:

                 

Commodity Derivatives

  Cost of Products Sold     $ (15,146)      $ 7,042       $ (847)      $ 483       $ (95)      $ (11) 

Interest Rate Swap Derivatives

  Interest Expense      (12,451)       (7,575)       (7,220)       (3,877)       -         (2) 
                                           

Total

      $ (27,597)      $ (533)      $ (8,067)      $ (3,394)      $ (95)      $ (13) 
                                           
         Nine Months Ended
September 30,
   Nine Months Ended
September 30,
   Nine Months Ended
September 30,
         2009    2008    2009    2008    2009    2008

Derivatives in cash flow hedging relationships:

                 

Commodity Derivatives

  Cost of Products Sold     $ (15,282)      $ (530)      $ 8,702       $ 21,666       $ (95)      $ (8,347) 

Interest Rate Swap Derivatives

  Interest Expense      (12,289)       (9,857)       (18,927)       (8,130)       -         -   
                                           

Total

      $   (27,571)      $   (10,387)      $   (10,225)      $   13,536       $   (95)      $   (8,347) 
                                           

 

   

Location of Gain/(Loss) Recognized

in Income on Derivatives

   Amount of Gain/(Loss) Recognized in Income on Derivatives representing hedge
ineffectiveness and amount excluded from the assessment of effectiveness
         Three Months Ended September 30,    Nine Months Ended September 30,
         2009    2008    2009    2008

Derivatives in fair value hedging relationships:

           

Commodity Derivatives

             

(including hedged items)

  Cost of Products Sold     $     (20,909)      $             -        $     (8,411)      $             -   
                             

Total

      $     (20,909)      $             -        $     (8,411)      $             -   
                             
   

Location of Gain/(Loss) Recognized

in Income on Derivatives

   Amount of Gain/(Loss) Recognized in Income on Derivatives
         Three Months Ended September 30,    Nine Months Ended September 30,
         2009    2008    2009    2008

Derivatives not designated as hedging instruments:

           

Commodity Derivatives

  Cost of Products Sold     $ 30,346       $ 83,337       $ 87,349       $ (241) 

Trading Commodity Derivatives

  Revenue      -        (36,729)       -        (28,283) 

Interest Rate Swap Derivatives

 

Gains (Losses) on Non-hedged

Interest Rate Derivatives

     (35,589)       (9,152)       24,373        (13,610) 
                             

Total

      $ (5,243)      $ 37,456       $ 111,722       $ (42,134) 
                             

We recognized $13.5 million and $34.4 million of unrealized gains on commodity derivatives not in fair value hedging relationships (including amounts related to the ineffective portion of commodity derivatives in cash flow hedging relationships) for the three months ended September 30, 2009 and 2008, respectively. For the nine months ended September 30, 2009 and 2008, we recognized unrealized losses on commodity derivatives not in fair value hedging relationships of $32.7 million and $5.8 million, respectively. For the three and nine months ended September 30, 2009, we recognized unrealized losses of $16.4 million and $3.9 million, respectively, on commodity derivatives and related hedged inventory in fair value hedging relationships. There were no unrealized gains or losses on commodity derivatives and related hedged inventory in fair value hedging relationships in the prior year as we did not begin applying fair hedge accounting on our storage inventory until April 2009.

Credit Risk

We maintain credit policies with regard to our counterparties that we believe minimize our overall credit risk. These policies include an evaluation of potential counterparties’ financial condition (including credit ratings), collateral requirements under certain circumstances and the use of standardized agreements that allow for netting of positive and negative exposure associated with a single counterparty.

 

32


Table of Contents

Our counterparties consist primarily of financial institutions, major energy companies and local distribution companies. This concentration of counterparties may impact our overall exposure to credit risk, either positively or negatively, in that the counterparties may be similarly affected by changes in economic, regulatory or other conditions. Based on our policies, exposures, credit and other reserves, management does not anticipate a material adverse effect on our financial position or results of operations as a result of counterparty performance.

For financial instruments, failure of a counterparty to perform on a contract could result in our inability to realize amounts that have been recorded on our condensed consolidated balance sheets and recognized in net income or other comprehensive income.

 

17.

RELATED PARTY TRANSACTIONS:

We made the following sales to and purchases from affiliates of Enterprise GP Holdings L.P. (“Enterprise”):

 

           Three Months Ended September 30,   Nine Months Ended September 30,
           2009   2008   2009   2008

Enterprise

Transactions

    

Product

  Volumes
(in thousands)
  Dollars   Volumes
(in thousands)
  Dollars   Volumes
(in thousands)
  Dollars   Volumes
(in thousands)
  Dollars

Propane Operations:

               

Sales

    

Propane (Gallons)

  3,570     $ 2,538     1,050      $ 1,529     20,370     $ 14,046     13,230      $ 19,769  
    

Derivative Activity

      277     -       66     -       277     -       2,442  

Purchases

    

Propane (Gallons)

  47,124     $ 43,579     51,116      $   89,391     206,344      $   181,853     219,711      $   367,774  
    

Derivative Activity

      443     -       757     -       38,392     -       757  

Natural Gas Operations:

               

Sales

    

NGLs (Gallons)

  127,814     $   108,218     23,362      $ 37,191     368,652      $ 259,417     39,339      $ 62,104  
    

Natural Gas (MMBtu)

  3,378      11,116     1,854       17,345     7,476       27,165     4,886       44,023  
    

Fees

      (1,062)    -       1,493     -       (3,236)    -       4,651  

Purchases

    

Natural Gas Imbalances

               
    

    (MMBtu)

  366     $ 1,404     (1,382)     $ (4,299)    617      $ 1,903     599      $ (1,379) 
    

Natural Gas (MMBtu)

  3,493      11,745     5,609       41,726     7,089       27,359     10,938       93,699  
    

Fees

      (191)    -       13,148     -       42     -       13,660  

Accounts receivable from and accounts payable to related companies as of September 30, 2009 and December 31, 2008 relate primarily to activities in the normal course of business.

Titan purchases substantially all of its propane requirements from Enterprise pursuant to an agreement that expires in 2010. As of September 30, 2009 and December 31, 2008, Titan had forward mark-to-market derivatives for approximately 11.7 million and 45.2 million gallons of propane at a fair value asset of $2.4 million and a fair value liability of $40.1 million, respectively, with Enterprise. In addition, as of September 30, 2009, Titan had forward derivatives accounted for as cash flow hedges of 28.5 million gallons of propane at a fair value asset of $4.3 million with Enterprise.

ETC OLP and Enterprise transport natural gas on each other’s pipelines, share operating expenses on jointly-owned pipelines and ETC OLP sells natural gas to Enterprise. Our propane operations routinely buy and sell product with Enterprise. The following table summarizes the related party balances with Enterprise on our condensed consolidated balance sheets:

 

       September 30,  
2009
     December 31,  
2008

Natural Gas Operations:

     

Accounts receivable

     $         28,366        $         11,558  

Accounts payable

     265        567  

Imbalance payable

     (2,391)       (547) 

Propane Operations:

     

Accounts receivable

     $ 325        $ 111  

Accounts payable

     5,962        33,308  

 

33


Table of Contents

Accounts receivable from related companies other than Enterprise consist of the following:

 

       September 30,  
2009
     December 31,  
2008

MEP

    $ 725       $ 2,805  

FEP

     113       $ -  

McReynolds Energy

     -        202  

Energy Transfer Technologies, Ltd.

     -        16  

Others

     1,278        450  
             

Total accounts receivable from related
companies other than Enterprise

    $         2,116       $         3,473  
             

The Chief Executive Officer (“CEO”) of ETP’s General Partner, Mr. Kelcy Warren, voluntarily determined that after 2007, his salary would be reduced to $1.00 plus an amount sufficient to cover his allocated payroll deductions for health and welfare benefits. Mr. Warren also declined future cash bonuses and future equity awards. We recorded non-cash compensation expense and an offsetting capital contribution of $0.9 million ($0.4 million in salary and $0.5 million in accrued bonuses) for the nine months ended September 30, 2009 and 2008 as an estimate of the reasonable compensation level for the CEO position.

Effective August 17, 2009, we acquired 100% of the membership interests of Energy Transfer Group, L.L.C. (“ETG”), which owns all of the partnership interests of Energy Transfer Technologies, Ltd. (“ETT”). ETT provides compression services to customers engaged in the transportation of natural gas, including ETP. The membership interests of ETG were contributed to us by Mr. Warren and by two entities, one of which is controlled by a director of the general partner of ETP’s general partner and the other of which is controlled by a member of ETP’s management. In exchange, the former members acquired the right to receive (in cash or ETP Common Units), future amounts to be determined based on the terms of the contribution arrangement. These contingent amounts are to be determined in 2014 and 2017, and the former members of ETG will receive payments contingent on the acquired operations performing at a level above the average return required by ETP for approval of its own growth projects during the period since acquisition. In addition, the former members may be required to make cash payments to us under certain circumstances. In connection with this transaction, we assumed liabilities of $33.1 million and recorded goodwill of $1.3 million.

 

18.

REPORTABLE SEGMENTS:

Our financial statements reflect four reportable segments, which conduct their business exclusively in the United States of America, as follows:

 

   

natural gas operations:

 

  ¨

intrastate transportation and storage

 

  ¨

interstate transportation

 

  ¨

midstream

 

   

retail propane and other retail propane related operations

Segments below the quantitative thresholds are classified as “other”. The components of the “other” classification have not met any of the quantitative thresholds for determining reportable segments. Management has included the wholesale propane operations in “other” for all periods presented in this report because such operations are not material.

Intersegment and intrasegment transactions are generally based on transactions made at market-related rates. Consolidated revenues and expenses reflect the elimination of all material intercompany transactions.

We evaluate the performance of our operating segments based on operating income exclusive of general partnership selling, general and administrative expenses, gains (losses) on disposal of assets, interest expense, equity in earnings (losses) of affiliates and income tax expense (benefit). Certain overhead costs relating to a reportable segment have been allocated for purposes of calculating operating income. We allocate administration expenses from the Partnership to our Operating Companies using the Modified Massachusetts Formula Calculation, which is based on factors such as respective segments’ gross margins, employee costs and property and equipment.

 

34


Table of Contents

The expenses subject to allocation are based on estimated amounts and take into consideration actual expenses from previous months and known trends. The difference between the allocation and actual costs is adjusted in the following month. The amounts allocated for the periods presented are as follows:

 

     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

Costs allocated from ETP to Operating Partnerships:

           

Midstream and intrastate transportation and storage operations

     $         4,785       $         4,162       $         15,363       $         12,747 

Interstate operations

     1,495       1,200       4,793       3,706 

Retail propane and other retail propane related operations

     3,689       2,642       11,795       8,167 
                           

Total

     $ 9,969       $ 8,004       $ 31,951       $ 24,620 
                           

Costs allocated from Operating Partnerships to ETP:

           

Midstream and intrastate transportation and storage operations

     $ 2,838       $ 3,634       $ 11,014       $ 7,567 

Retail propane and other retail propane related operations

          776       412       2,129 
                           

Total

     $ 2,838       $ 4,410       $ 11,426       $ 9,696 
                           

The following tables present the financial information by segment for the following periods:

 

     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

Revenues:

           

Intrastate transportation and storage:

           

Revenues from external customers

    $ 364,087       $ 875,186       $ 1,192,564       $ 2,854,708  

Intersegment revenues

     102,626        634,369        396,734        2,007,933  
                           
     466,713        1,509,555        1,589,298        4,862,641  

Interstate transportation - revenues from external customers

           
     71,415        62,023        203,349        176,663  

Midstream:

           

Revenues from external customers

     507,721        1,001,378        1,607,497        3,290,699  

Intersegment revenues

     65,345        433,779        142,969        1,264,641  
                           
     573,066        1,435,157        1,750,466        4,555,340  

Retail propane and other retail propane related - revenues from external customers

     184,287        263,566        902,471        1,162,941  

All other:

           

Revenues from external customers

     2,339        3,938        5,632        13,675  

Intersegment revenues

     372        -        372        -  
                           
     2,711        3,938        6,004        13,675 

Eliminations

     (168,343)       (1,068,149)       (540,075)       (3,272,574) 
                           

Total revenues

    $     1,129,849       $     2,206,090       $     3,911,513       $     7,498,686  
                           

Cost of products sold:

           

Intrastate transportation and storage

    $ 278,868       $ 1,150,799       $ 895,433       $ 3,965,931  

Midstream

     480,746        1,352,658        1,510,030        4,271,788  

Retail propane and other retail propane related

     85,028        195,403        393,019        761,415  

All other

     1,849        2,743        4,873        10,684  

Eliminations

     (168,343)       (1,068,149)       (540,075)       (3,272,574) 
                           

Total cost of products sold

    $ 678,148       $ 1,633,454       $ 2,263,280       $ 5,737,244  
                           

Depreciation and amortization:

           

Intrastate transportation and storage

    $ 29,256       $ 25,890       $ 84,288       $ 66,502  

Interstate transportation

     12,521        9,637        36,017        28,204  

Midstream

     19,077        17,654        54,749        46,960  

Retail propane and other retail propane related

     23,031        20,255        63,477        58,828  

All other

     853        127        1,095        428  
                           

Total depreciation and amortization

    $ 84,738       $ 73,563       $ 239,626       $ 200,922  
                           

 

35


Table of Contents
     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

Operating income (loss):

           

Intrastate transportation and storage

    $ 107,713       $ 227,851       $ 404,217       $ 547,931  

Interstate transportation

     41,610        33,698        101,755        91,414  

Midstream

     42,428        38,877        93,646        154,561  

Retail propane and other retail propane related

     (16,550)       (39,728)       152,079        61,705  

All other

     (2,768)       (311)       (4,803)       (904) 

Selling, general and administrative expenses
not allocated to segments

     1,068        (4,123)       (2,264)       (8,574) 
                           

Total operating income

    $ 173,501       $     256,264       $ 744,630       $ 846,133  
                           

Other items not allocated by segment:

           

Interest expense, net of interest capitalized

    $     (120,100)      $ (90,300)      $     (341,050)      $     (261,297) 

Equity in earnings (losses) of affiliates

     9,581        (654)       11,751        (749) 

Gains (losses) on disposal of assets

     (1,088)       2,520        (1,333)       1,584  

Gains (losses) on non-hedged interest rate derivatives

     (35,589)       (9,152)       24,373        (13,610) 

Allowance for equity funds used during construction

     30        19,727        18,618        45,275  

Other, net

     4,235        (1,163)       4,559        8,356  

Income tax benefit (expense)

     3,697        7,874        (5,773)       (6,600) 
                           
     (139,234)       (71,148)       (288,855)       (227,041) 
                           

Net income

    $ 34,267       $ 185,116       $ 455,775       $ 619,092  
                           

 

     As of
September 30,
2009
   As of
December 31,
2008

Total assets:

     

Intrastate transportation and storage

    $ 4,960,620      $ 4,911,770 

Interstate transportation

     3,158,799       2,487,078 

Midstream

     1,690,824       1,674,028 

Retail propane and other retail propane related

     1,687,870       1,810,953 

All other

     186,395       186,073 
             

Total

    $ 11,684,508      $ 11,069,902 
             
     Nine Months Ended September 30,
     2009    2008

Additions to property, plant and equipment including acquisitions, net of contributions in aid of construction costs (accrual basis):

     

Intrastate transportation and storage

    $ 362,816      $ 728,028 

Interstate transportation

     127,927       621,807 

Midstream

     76,408       204,610 

Retail propane and other retail propane related

     45,904       97,602 

All other

     29,404       1,800 
             

Total

    $ 642,459      $     1,653,847 
             

 

36


Table of Contents
19.

SUPPLEMENTAL FINANCIAL STATEMENT INFORMATION:

Following are the stand-alone financial statements of the Parent Company as of September 30, 2009 and December 31, 2008 and for the three and nine months ended September 30, 2009 and 2008, which are included to provide additional information with respect to the Parent Company's financial position, results of operations and cash flows on a stand-alone basis:

BALANCE SHEETS

(unaudited)

 

     September 30,
2009
   December 31,
2008
ASSETS      

CURRENT ASSETS:

     

Cash and cash equivalents

     $ 62        $ 62  

Accounts receivable from related companies

     276        459  

Prepaid expenses and other current assets

     1,421        163  
             

Total current assets

     1,759        684  

ADVANCES TO AND INVESTMENTS IN AFFILIATES

     1,645,702        1,662,074  

INTANGIBLES AND OTHER LONG-TERM ASSETS, net

     6,326        8,581  
             

Total assets

     $ 1,653,787        $ 1,671,339  
             
LIABILITIES AND PARTNERS’ DEFICIT      

CURRENT LIABILITIES:

     

Accounts payable

     $ 152        $ 798  

Accounts payable to affiliates

     4,897        3,034  

Interest payable

     4,707        9,222  

Accrued and other current liabilities

     207        912  

Price risk management liabilities

     64,418        47,453  
             

Total current liabilities

     74,381        61,419  

LONG-TERM DEBT, less current maturities

     1,573,923        1,571,642  

LONG-TERM PRICE RISK MANAGEMENT LIABILITIES

     89,990        121,710  

COMMITMENTS AND CONTINGENCIES

     
             
     1,738,294        1,754,771  

PARTNERS’ CAPITAL (DEFICIT):

     

General Partner

     149        155  

Limited Partner - Common Unitholders (222,898,248 and 222,829,956 units authorized, issued and outstanding at September 30, 2009 and December 31, 2008, respectively)

     (17,399)       (15,762) 

Accumulated other comprehensive loss

     (67,257)       (67,825) 
             

Total partners’ deficit

     (84,507)       (83,432) 
             

Total liabilities and partners’ deficit

     $ 1,653,787        $ 1,671,339  
             

 

37


Table of Contents

STATEMENTS OF OPERATIONS

(unaudited)

 

     Three Months Ended September 30,    Nine Months Ended September 30,
     2009    2008    2009    2008

SELLING, GENERAL AND ADMINISTRATIVE EXPENSES

     $ (786)       $ (1,188)       $       (3,608)       $ (4,523) 

OTHER INCOME (EXPENSE):

           

Interest expense

     (18,589)       (22,504)       (56,728)       (69,527) 

Equity in earnings of affiliates

     82,661        138,955        370,195        441,299  

Losses on non-hedged interest rate derivatives

     (17,348)       (9,546)       (7,954)       (13,759) 

Other, net

     957        (338)       329        (993) 
                           

INCOME BEFORE INCOME TAXES

     46,895        105,379        302,234        352,497  

Income tax (expense) benefit

     76        -        648        (19) 
                           

NET INCOME

     46,971        105,379        302,882        352,478  

GENERAL PARTNER’S INTEREST IN NET INCOME

     147        326        938        1,091  
                           

LIMITED PARTNERS’ INTEREST IN NET INCOME

     $ 46,824        $       105,053        $ 301,944        $       351,387  
                           

 

38


Table of Contents

STATEMENTS OF CASH FLOWS

(unaudited)

 

     Nine Months Ended September 30,
     2009    2008

NET CASH FLOWS PROVIDED BY OPERATING ACTIVITIES

     $ 349,402        $ 329,150  
             

CASH FLOWS FROM FINANCING ACTIVITIES:

     

Proceeds from borrowings

     50,406        163,232  

Principal payments on debt

     (48,771)       (63,847) 

Distributions to partners

     (351,037)       (328,577) 
             

Net cash used in financing activities

     (349,402)       (229,192) 
             

INCREASE IN CASH AND CASH EQUIVALENTS

     -        99,958  

CASH AND CASH EQUIVALENTS, beginning of period

     62        42  
             

CASH AND CASH EQUIVALENTS, end of period

     $ 62        $ 100,000  
             

 

39


Table of Contents

ITEM 2.  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION

AND RESULTS OF OPERATIONS

(Tabular dollar amounts, except per unit data, are in thousands)

The following is a discussion of our historical consolidated financial condition and results of operations, and should be read in conjunction with our historical consolidated financial statements and accompanying notes thereto included elsewhere in this Quarterly Report on Form 10-Q and our Annual Report on Form 10-K for the year ended December 31, 2008 filed with the SEC on March 2, 2009. Our Management’s Discussion and Analysis includes forward-looking statements that are subject to risk and uncertainties. Actual results may differ substantially from the statements we make in this section due to a number of factors that are discussed in “Item 1A. Risk Factors” included in this report and in our Annual Report for the year ended December 31, 2008.

Unless the context requires otherwise, references to “the Partnership,” “we,” “us,” “our” and “ETE” shall mean Energy Transfer Equity, L.P. and its consolidated subsidiaries, which include Energy Transfer Partners, L.P. (“ETP”), Energy Transfer Partners G.P., L.P. (“ETP GP”), the General Partner of ETP, and ETP GP’s General Partner, Energy Transfer Partners, L.L.C. (“ETP LLC”). References to “the Parent Company” shall mean Energy Transfer Equity, L.P. on a stand-alone basis.

Overview

Currently, our business operations are conducted only through ETP’s Operating Companies (collectively referred to as the “Operating Companies”), which include ETC OLP, a Texas limited partnership engaged in midstream and transportation and natural gas storage operations, Energy Transfer Interstate Holdings, LLC (“ET Interstate”), the parent company of Transwestern Pipeline Company, LLC (“Transwestern”), a Delaware limited liability company engaged in interstate transportation of natural gas, and ETC Midcontinent Express Pipeline, LLC (“ETC MEP”), a Delaware limited liability company engaged in interstate transportation of natural gas, and HOLP and Titan, both Delaware limited partnerships engaged in retail propane operations.

Parent Company – Energy Transfer Equity, L.P.

The principal sources of cash flow for the Parent Company are distributions it receives from its direct and indirect investments in limited and general partner interests of ETP. The Parent Company’s primary cash requirements are for distributions to its partners, general and administrative expenses and debt service. The Parent Company-only assets and liabilities are not available to satisfy the debts and other obligations of ETP or the Operating Companies.

In order to fully understand the financial condition and results of operations of the Parent Company on a stand-alone basis, we have included discussions of Parent Company matters apart from those of our consolidated group.

General

Our primary objective is to increase the level of our cash distributions to our partners over time by pursuing a business strategy that is currently focused on growing our natural gas midstream and transportation and storage businesses (including transportation, gathering, compression, treating, processing, storage and marketing) and our propane business through, among other things, pursuing certain construction and expansion opportunities relating to our existing infrastructure and acquiring certain additional businesses or assets. The actual amount of cash we will have available for distribution primarily depends on the amount of cash ETP generates from operations.

During the past several years, ETP has been successful in completing several acquisitions and business combinations, including the combination of the retail propane operations of Heritage Propane Partners, L.P. and the midstream and intrastate transportation and storage operations of ETC OLP in January 2004. Subsequent to this combination, we have made numerous significant acquisitions, of assets totaling $3.9 billion in our natural gas operations and $0.85 billion in our propane operations.

In addition to ETP’s acquisitions, we have grown through internal growth projects, consisting primarily of the construction of natural gas transmission pipelines, both intrastate and interstate. From September 1, 2003 through September 30, 2009, we made growth capital expenditures, excluding capital contributions made in connection with the Midcontinent Express pipeline (“MEP”) and Fayetteville Express pipeline (“FEP”) joint ventures, of approximately $5.0 billion, of which more than $4.3 billion was related to natural gas transmission pipelines. We expect our fee-based revenue to increase as a result of the completion of recent pipeline expansions to our existing natural gas system in addition to projects expected to be completed in the next twelve to eighteen months. These projects include MEP, the Texas Independence pipeline, FEP and the Tiger pipeline.

 

40


Table of Contents

In January 2008, in conjunction with the signing of transportation commitments, MEP entered into an option agreement with a subsidiary of MarkWest Energy Partners, L.P. (“MarkWest”), providing it a one-time right to purchase a 10% ownership interest in MEP. In October 2009, MarkWest provided notice that it would not exercise the option.

ETP’s Operations

Our principal operations are conducted in the following reportable segments (see Note 18 to our unaudited condensed consolidated financial statements):

 

 

Intrastate transportation and storage - Revenue is typically generated from fees charged to customers to reserve firm capacity on or move gas through the pipeline on an interruptible basis. A monetary fee and/or fuel retention are also components of the fee structure. Excess fuel retained after consumption is typically valued based on the published market prices as of the first of the month and sold at market prices. The HPL System also generates revenue from the sale of natural gas to electric utilities, independent power plants, local distribution companies, industrial end-users and other marketing companies. The use of the Bammel storage reservoir allows us to purchase physical natural gas and then sell financial contracts at a price sufficient to cover its carrying costs and provide a gross profit margin, in addition to generating revenue from fee-based contracts to reserve firm storage capacity.

 

 

Interstate transportation - The revenues of this segment consist primarily of fees earned from natural gas transportation services and operational gas sales.

 

 

Midstream - Revenue is primarily generated by the volumes of natural gas gathered, compressed, treated, processed, transported, purchased and sold through our pipelines (excluding the transportation pipelines) and gathering systems as well as the level of natural gas and NGL prices.

 

 

Retail propane - Revenue is generated from the sale of propane and propane-related products and services.

Trends and Outlook

In light of the current conditions in the capital markets, and based on our projected growth capital expenditures and capital contributions to joint venture entities, we have taken significant steps to preserve our liquidity position reducing discretionary capital expenditures and continuing to manage operating and administrative costs. During the nine months ended September 30, 2009, ETP received approximately $578.3 million in net proceeds from its January and April Common Unit offerings and $993.6 million in net proceeds from an offering of $1.0 billion of aggregate principal amount of ETP senior notes in April. As of September 30, 2009, in addition to approximately $50.1 million of cash on hand, ETP had available capacity under the ETP Credit Facility of approximately $1.45 billion. The Parent Company also has a $500.0 million revolving credit facility that expires in February 2011 with available capacity of $376.1 million as of September 30, 2009 and currently has no capital requirements. In addition, ETP received approximately $276.0 million in net proceeds from its October Common Unit offering. Based on our current estimates, we expect to utilize these resources, along with cash from ETP’s operations, to fund ETP’s announced growth capital expenditures and working capital needs without us or ETP having the need to access the capital markets until the latter half of 2010; however, we or ETP may issue debt or equity securities prior to that time as we deem prudent to provide liquidity for new capital projects or other partnership purposes.

As noted above and despite the economic challenges and volatile capital markets, ETP has successfully raised approximately $2.4 billion in proceeds from the recent debt and equity offerings since December 1, 2008 which includes approximately $595.7 million in net proceeds from ETP’s December 2008 Senior Notes offering. We believe that the size and scope of our operations, our stable asset base and cash flow profile and our investment grade status will be significant positive factors in our efforts to obtain new debt or equity funding; however, there is no assurance that we or ETP will continue to be successful in obtaining financing under any of the alternatives discussed above if the capital markets deteriorate further from current conditions. Furthermore, the terms, size and cost of any one of these financing alternatives could be less favorable and could be impacted by the timing and magnitude of our funding requirements, market conditions and other uncertainties.

Our natural gas transportation and midstream revenues are derived significantly from companies that engage in natural gas exploration and production activities. Prices for natural gas and NGLs have fallen dramatically since July 2008 and have remained at low levels due to the continued effects of the economic recession and higher than normal storage levels. Many of our customers have

 

41


Table of Contents

been negatively impacted by these recent declines in natural gas prices as well as current conditions in the capital markets. These factors have caused several of our customers to decrease drilling levels and, in some cases, to shut in or consider shutting in natural gas production from some producing wells.

In our intrastate and interstate natural gas operations, a significant portion of our revenue is derived from long-term fee-based arrangements pursuant to which our customers pay us capacity reservation charges regardless of the volume of natural gas transported; however, a portion of our revenue is derived from charges based on actual volumes transported in addition to the excess of fuel retention charged to our customers after consumption. As a result, our operating cash flows from our natural gas pipeline operations are not tied directly to natural gas and NGL prices; however, the volumes of natural gas we transport may be adversely affected by reduced drilling activity of our customers, as well as the shutting in of production from producing wells, as a result of lower natural gas prices. As a portion of our pipeline transportation revenue is based on volumes transported and fuel retention, lower volumes of natural gas transported and lower natural gas prices generally result in lower revenue from our intrastate and interstate natural gas operations. During the first nine months of 2009, natural gas spot prices have ranged from $1.925 per MMbtu to $5.25 per MMbtu, and the closing price on the NYMEX on November 6, 2009 for natural gas to be delivered in December 2009 was $4.595 per MMbtu. As a result, drilling activity in our core operating areas has declined and natural gas producers have shut in production from some wells, which in turn has resulted in lower than expected natural gas volumes transported on our intrastate and interstate pipelines. There are no assurances that commodity prices will not decline further, which could result in a further reduction in drilling activities by our customers.

Since certain of our natural gas marketing operations and substantially all of our propane operations involve the purchase and resale of natural gas and NGLs, we expect our revenues and costs of products sold to be lower than prior periods if commodity prices remain at or fall below existing levels. However, we do not expect our margins from these activities to be significantly impacted as we typically purchase the commodity at a lower price than the sales price. Since the prices of natural gas and NGLs have been volatile, there are no assurances that we will ultimately sell the commodity for a profit.

Current economic conditions also indicate that many of our customers may encounter increased credit risk in the near term. We actively monitor the credit status of our counterparties, performing both quantitative and qualitative assessments based on their credit ratings and credit default swaps where applicable, and to date have not had any significant credit losses associated with our transactions. However, given the current volatility in the financial markets, we cannot be certain that we will not experience such losses in the future.

Results of Operations

Parent Company Results

The Parent Company currently has no separate operating activities apart from those conducted by ETP and its Operating Companies. The principal sources of cash flow for the Parent Company are its direct and indirect investments in the limited and general partner interests of ETP.

The following table summarizes the key components of the stand-alone results of operations of the Parent Company for the periods indicated:

 

     Three Months Ended September 30,         Nine Months Ended September 30,     
     2009    2008    Change    2009    2008    Change

Equity in earnings of affiliates

     $ 82,661        $ 138,955        $     (56,294)       $ 370,195        $ 441,299        $     (71,104) 

Selling, general and administrative expenses

     (786)       (1,188)       402        (3,608)       (4,523)       915  

Interest expense

     (18,589)       (22,504)       3,915        (56,728)       (69,527)       12,799  

Losses on non-hedged interest rate derivatives

     (17,348)       (9,546)       (7,802)       (7,954)       (13,759)       5,805  

Other, net

     957        (338)       1,295        329        (993)       1,322  

 

42


Table of Contents

The following is a discussion of the highlights of the Parent Company’s stand-alone results of operations for the periods presented.

Equity in Earnings of Affiliates. Equity in earnings of affiliates represents earnings of the Parent Company related to its investment in limited partner units of ETP, its ownership of ETP GP and its ownership of ETP LLC. The decrease in equity in earnings of affiliates was directly related to the changes in the ETP segment income described below.

Interest Expense. For the three and nine month periods, the Parent Company interest expense decreased primarily due to a decrease in the LIBOR rate between the periods.

Gains (Losses) on Non-Hedged Interest Rate Derivatives. The Parent Company has interest swaps that are not accounted for as hedges under SFAS 133 (which is now incorporated into ASC 815). Changes in the fair value of these swaps are recorded directly in earnings. The variable portion of these swaps is based on the three month LIBOR and its corresponding forward curve. Increases or decreases in gains (losses) on non-hedged interest rate derivatives are due to changes in these rates. We recorded unrealized losses on our interest rate swaps as a result of decreases in the relevant floating index rates during the periods presented.

Consolidated Results

 

     Three Months Ended September 30,         Nine Months Ended September 30,     
     2009    2008    Change    2009    2008    Change

Revenues

     $ 1,129,849        $ 2,206,090        $ (1,076,241)       $ 3,911,513        $ 7,498,686        $ (3,587,173) 

Cost of products sold

     678,148        1,633,454        (955,306)       2,263,280        5,737,244        (3,473,964) 
                                         

Gross margin

     451,701        572,636        (120,935)       1,648,233        1,761,442        (113,209) 

Operating expenses

     158,883        197,493        (38,610)       517,337        573,606        (56,269) 

Depreciation and amortization

     84,738        73,563        11,175        239,626        200,922        38,704  

Selling, general and administrative

     34,579        45,316        (10,737)       146,640        140,781        5,859  
                                         

Operating income

     173,501        256,264        (82,763)       744,630        846,133        (101,503) 

Interest expense, net of interest capitalized

     (120,100)       (90,300)       (29,800)       (341,050)       (261,297)       (79,753) 

Equity in earnings (losses) of affiliates

     9,581        (654)       10,235        11,751        (749)       12,500  

Gains (losses) on disposal of assets

     (1,088)       2,520        (3,608)       (1,333)       1,584        (2,917) 

Gains (losses) on non-hedged interest rate derivatives

     (35,589)       (9,152)       (26,437)       24,373        (13,610)       37,983  

Allowance for equity funds used during construction

     30        19,727        (19,697)       18,618        45,275        (26,657) 

Other, net

     4,235        (1,163)       5,398        4,559        8,356        (3,797) 

Income tax expense

     3,697        7,874        (4,177)       (5,773)       (6,600)       827  
                                         

Net income

     $ 34,267        $ 185,116        $ (150,849)       $ 455,775        $ 619,092        $ (163,317) 
                                         

See the detailed discussion of revenues, cost of products sold, margin and operating expense by operating segment below.

Interest Expense. Interest expense increased principally due to higher levels of borrowings, which were used to finance growth capital expenditures primarily in our intrastate transportation and storage and interstate transportation segments, including capital contributions to our joint ventures. Interest expense is presented net of capitalized interest and allowance for debt funds used during construction, which totaled $5.7 million and $7.9 million for the three months ended September 30, 2009 and 2008, respectively, and $15.5 million and $24.3 million for the nine months ended September 30, 2009 and 2008, respectively.

Equity in Earnings (Losses) of Affiliates. The increase in equity in earnings of affiliates for both the three and nine month periods was primarily attributable to earnings of MEP during the three months ended September 30, 2009, for which we recorded $7.0 million and $1.8 million, respectively.

Gains (Losses) on Non-Hedged Interest Rate Derivatives. The Partnership has interest swaps that are not accounted for as hedges under SFAS 133 (which is now incorporated into ASC 815). Changes in the fair value of these swaps are recorded directly in earnings. The variable portion of these swaps is based on the three month LIBOR and its corresponding forward curve. Increases or decreases in gains (losses) on non-hedged interest rate derivatives are due to changes in these rates.

Allowance for Equity Funds Used During Construction. The decrease in AFUDC on equity was due to the completion of the Phoenix project in February 2009. AFUDC on equity amounts recorded in property, plant and equipment were $0.02 million and $12.1 million for the three months ended September 30, 2009 and 2008, respectively, and $11.4 million and $27.7 million for the nine months ended September 30, 2009 and 2008, respectively.

 

43


Table of Contents

Other Income, Net. The decrease between the nine month periods was primarily due to contributions in aid of construction, which exceeded our project costs during the nine months ended September 30, 2008.

Segment Operating Results

We evaluate segment performance based on operating income, which we believe is an important performance measure of the core profitability of our operations. This measure represents the basis of our internal financial reporting and is one of the performance measures used by senior management in deciding how to allocate capital resources among business segments.

Detailed descriptions of our business and segments are included in our Annual Report on Form 10-K for the year ended December 31, 2008 filed with the SEC on March 2, 2009.

Operating income by segment is as follows:

 

     Three Months Ended September 30,         Nine Months Ended September 30,     
     2009    2008    Change    2009    2008    Change

Intrastate transportation and storage

     $ 107,713        $     227,851        $     (120,138)       $ 404,217        $     547,931        $ (143,714) 

Interstate transportation

     41,610        33,698        7,912        101,755        91,414        10,341  

Midstream

     42,428        38,877        3,551        93,646        154,561        (60,915) 

Retail propane and other retail propane related

     (16,550)       (39,728)       23,178        152,079        61,705        90,374  

Other

     (2,768)       (311)       (2,457)       (4,803)       (904)       (3,899) 

Unallocated selling, general and administrative expenses

     1,068        (4,123)       5,191        (2,264)       (8,574)       6,310  
                                         

Operating income

     $ 173,501        $ 256,264        $ (82,763)       $ 744,630        $ 846,133        $ (101,503) 
                                         

Unallocated Selling, General and Administrative Expenses. Selling, general and administrative expenses are allocated monthly to the Operating Companies using the Modified Massachusetts Formula Calculation. The expenses subject to allocation are based on estimated amounts and take into consideration actual expenses from previous months and known trends. The difference between the allocation and actual costs is adjusted in the following month, which results in over or under allocation of these costs due to timing differences.

Intrastate Transportation and Storage

 

     Three Months Ended September 30,         Nine Months Ended September 30,     
     2009    2008    Change    2009    2008    Change

Natural gas MMBtu/d – transported

     11,111,011        11,613,933        (502,922)       12,769,022        10,515,132        2,253,890  

Natural gas MMBtu/d – sold

     886,463        1,409,348        (522,885)       879,861        1,556,524        (676,663) 

Revenues

     $ 466,713        $ 1,509,555        $   (1,042,842)       $ 1,589,298        $ 4,862,641        $   (3,273,343) 

Cost of products sold

     278,868        1,150,799        (871,931)       895,433        3,965,931        (3,070,498) 
                                         

Gross margin

     187,845        358,756        (170,911)       693,865        896,710        (202,845) 

Operating expenses

     45,053        86,332        (41,279)       155,461        227,026        (71,565) 

Depreciation and amortization

     29,256        25,890        3,366        84,288        66,502        17,786  

Selling, general and administrative

     5,823        18,683        (12,860)       49,899        55,251        (5,352) 
                                         

Segment operating income

     $ 107,713        $ 227,851        $ (120,138)       $ 404,217        $ 547,931        $ (143,714) 
                                         

Gross Margin.

Three Months

Intrastate transportation and storage gross margin decreased between the three month periods primarily due to the following factors:

 

   

Our fuel retention revenues are directly impacted by changes in natural gas prices and volumes. Increases in natural gas prices increase our fuel retention revenues and decreases in natural gas prices decrease our fuel retention revenues. Due to the decrease in natural gas prices, fuel retention margin decreased approximately $62.1 million compared to the prior period despite increases in volumes transported. Natural gas prices for retained fuel decreased from an average of $8.98/MMBtu during the three months ended September 30, 2008 to $3.16/MMBtu during the three months ended September 30, 2009.

 

44


Table of Contents
   

We experienced a net decrease in storage margin of $90.1 million between the periods due primarily to unfavorable changes in derivative activity. During the 2008 period, we accounted for our storage-related derivative instruments using mark to market accounting, with changes in the fair value of these derivatives being recorded directly in earnings. Due to the sharp decreases in natural gas forward prices during the three months ended September 30, 2008, we recognized unrealized gains of $47.8 million from mark to market adjustments and realized gains of $23.0 million from the settlement of these derivative contracts. During the 2009 period, we accounted for certain storage-related transactions using fair value hedge accounting. Due to changes in the spot price used to value natural gas inventory held in storage and changes in the forward natural gas prices used to value the financial derivatives, we recognized $10.0 million in realized gains from the settlement of the derivative contracts and $23.1 million in unrealized losses from fair value adjustments during the three months ended September 30, 2009. In addition, we recorded a non-cash lower of cost or market write-down of our natural gas inventory of $9.4 million related to the timing of our designation of fair value hedges during the three months ended September 30, 2009. Fee-based storage and other factors also increased our margin by $3.3 million as compared to the prior period.

 

   

Transportation fees decreased by approximately $9.6 million primarily as a result of decreases in volumes transported due to weaker price differentials between major market hubs where our assets are located.

 

   

In addition to the above factors, we experienced a reduction in margin of $9.1 million as compared to the prior period principally due to the decrease in natural gas sold as a result of lower natural gas prices, lower west to east price differentials, and lower demand from industrial end users and local distribution companies.

Nine Months

Intrastate transportation and storage gross margin decreased between the nine month periods primarily due to the following factors:

 

   

As mentioned above, our fuel retention revenues are directly impacted by changes in natural gas prices and volumes. Due to the increased transportation volumes discussed above, fuel retention margins increased approximately $32.0 million compared to the prior period. However, natural gas prices for retained fuel decreased from an average of $8.99/MMBtu during the nine months ended September 30, 2008 to $3.25/MMBtu during the nine months ended September 30, 2009 resulting in a decrease to the retention margin of $179.0 million.

 

   

We experienced a net decrease in storage margin of $87.5 million primarily due to a decrease in realized margin of $87.9 million as a result of a 24.7 Bcf decrease in natural gas sold between the periods from our Bammel Storage Facility. In addition, we experienced fluctuations related to our storage-related derivative activities that resulted in a net increase of $0.4 million. During the 2008 period and the first three months of 2009, we accounted for certain of our storage-related derivative instruments using mark to market accounting with changes in the value of these financial derivative instruments being recorded directly in earnings. During the nine months ended September 30, 2008, we recognized unrealized gains of $23.1 million from mark to market adjustments and realized losses of $5.7 million from the settlement of derivative contracts. During the three months ended March 31, 2009, we recognized $66.3 million in net gains from mark to market adjustments and the settlement of storage-related derivative contracts primarily due to expected natural gas withdrawals that were ultimately deferred. Beginning in April 2009, we elected fair value hedge accounting for certain storage-related transactions and recognized $3.5 million in realized gains from the settlement of derivative contracts and $2.1 million in unrealized gains from inventory fair value adjustments related to changes in the spot prices for natural gas and changes in value of the financial derivatives associated with storage during the nine months ended September 30, 2009. In addition, during the nine months ended September 30, 2009, we recognized $54.0 million in unrealized losses as a result of a non-cash lower of cost or market write-down of our natural gas inventory.

 

   

Transportation fees increased approximately $84.8 million primarily due to increased volumes through our transportation pipelines. Overall volumes on our transportation pipelines were higher principally due to increased capacity of our pipeline system as a result of the completion of the Paris Loop, Maypearl to Malone pipeline, Carthage Loop, Southern Shale pipeline, Cleburne to Tolar pipeline and the Katy expansion during 2008 and 2009.

 

   

In addition to the above factors, we experienced a reduction in margin of $53.1 million as compared to the prior period principally due to the decrease in natural gas sold as a result of lower natural gas prices, lower west to east price differentials, and lower demand from industrial end users and local distribution companies.

Operating Expenses.

Three Months

Intrastate transportation and storage operating expenses decreased between the three month periods primarily due to a decrease in consumption expense of $35.9 million, which was principally caused by lower natural gas prices between periods despite increases in volumes transported, and a decrease in electricity costs of approximately $4.8 million.

 

45


Table of Contents

Nine Months

Intrastate transportation and storage operating expenses decreased between the nine month periods primarily due to a decrease in consumption expense of $82.6 million, which was principally caused by lower natural gas prices between periods despite increases in volumes transported, and a decrease in electricity costs of approximately $6.6 million. Offsetting the decrease were increases in ad valorem taxes of $12.9 million resulting from increased property values, and pipeline maintenance expenses of approximately $5.0 million.

Depreciation and Amortization.

Three and Nine Months

Intrastate transportation and storage depreciation and amortization expense increased between the three and nine month periods primarily due to the completion of pipeline expansion projects as noted above.

Selling, General and Administrative.

Three Months

Intrastate transportation and storage selling, general and administrative expenses decreased between the three month periods primarily due to a decrease in employee-related expenses (including allocated overhead expenses) of approximately $14.1 million offset by an increase of approximately $1.3 million in professional fees during the period.

Nine Months

Intrastate transportation and storage selling, general and administrative expenses decreased between the nine month periods primarily due to decreased employee-related costs (including allocated overhead expenses) of approximately $8.9 million offset by an increase in professional fees of approximately $3.7 million during the period.

Interstate Transportation

 

     Three Months Ended September 30,         Nine Months Ended September 30,     
     2009    2008    Change    2009    2008    Change

Natural gas MMBtu/d - transported

     1,688,388        1,862,781        (174,393)       1,706,199        1,750,592        (44,393) 

Natural gas MMBtu/d - sold

     19,060        14,784        4,276        19,481        13,094        6,387  

Revenues

    $ 71,415       $ 62,023       $ 9,392       $ 203,349       $ 176,663       $  26,686  

Operating expenses

     13,718        13,278        440        46,427        39,128        7,299  

Depreciation and amortization

     12,521        9,637        2,884        36,017        28,204        7,813  

Selling, general and administrative

     3,566        5,410        (1,844)       19,150        17,917        1,233  
                                         

Segment operating income

    $ 41,610       $ 33,698       $ 7,912       $ 101,755       $ 91,414       $ 10,341  
                                         

Revenues.

Three Months

Interstate revenues increased between the three month periods by approximately $9.4 million primarily due to the increased transportation revenues of $14.0 million as a result of the completion of the Phoenix pipeline expansion in February 2009 partially offset by a $4.6 million decrease in operational sales primarily due to decreased natural gas prices between the periods. Transported volumes decreased as compared to the prior period primarily as a result of less favorable differentials between the San Juan and Permian Basins during the three months ended September 30, 2009.

Nine Months

Interstate revenues increased between the nine month periods by approximately $26.7 million due to a $38.5 million increase related to increased transported natural gas volumes primarily as a result of the completion of the Phoenix pipeline expansion in February 2009 partially offset by a $11.8 million decrease in operational sales primarily due to decreased natural gas prices between the periods. Transported volumes decreased as compared to the prior period primarily as a result of less favorable pricing differentials between the San Juan and Permian Basins during the period.

 

46


Table of Contents

Operating Expenses.

Three Months

Interstate operating expenses increased between the three month periods primarily due to an increase in ad valorem taxes resulting from increased property values due to the Phoenix pipeline expansion noted above.

Nine Months

Interstate operating expenses increased between the nine month periods primarily due to an increase in ad valorem taxes of approximately $4.0 million resulting from increased property values and a net increase in other operating expenses of $3.3 million primarily due to the Phoenix pipeline expansion noted above.

Depreciation and Amortization.

Three months

Interstate depreciation and amortization expense increased between the three month periods primarily due to incremental depreciation associated with the completion of the Phoenix pipeline expansion.

Nine Months

Interstate depreciation and amortization expense increased between the nine month periods primarily due to incremental depreciation associated with the completion of the San Juan Lateral and Phoenix pipeline expansion projects.

Selling, General and Administrative.

Three Months

Interstate selling, general and administrative expenses decreased between the three month periods primarily due to a decrease in employee-related costs.

Nine Months

Interstate selling, general and administrative expenses increased between the nine month periods primarily due to an increase in allocated overhead expenses and professional fees.

Midstream

 

     Three Months Ended September 30,         Nine Months Ended September 30,     
     2009    2008    Change    2009    2008    Change

Natural gas MMBtu/d - sold

     1,021,963        1,344,033        (322,070)       1,009,547        1,361,295        (351,748) 

NGLs Bbls/d - sold

     39,486        24,019        15,467        40,345        27,618        12,727  

Revenues

    $ 573,066       $ 1,435,157       $ (862,091)      $ 1,750,466       $ 4,555,340       $  (2,804,874) 

Cost of products sold

     480,746        1,352,658        (871,912)       1,510,030        4,271,788        (2,761,758) 
                                         

Gross margin

     92,320        82,499        9,821        240,436        283,552        (43,116) 

Operating expenses

     16,054        16,661        (607)       50,858        50,792        66  

Depreciation and amortization

     19,077        17,654        1,423        54,749        46,960        7,789  

Selling, general and administrative

     14,761        9,307        5,454        41,183        31,239        9,944  
                                         

Segment operating income

    $ 42,428       $ 38,877       $ 3,551       $ 93,646       $ 154,561       $ (60,915) 
                                         

Gross Margin.

Three Months

Midstream gross margin increased during the three month period primarily due to a favorable change in marketing activity between the three month periods of approximately $36.7 million. This increase was due to the cessation of our trading activities in the third quarter of 2008 offset by an unfavorable change of $8.1 million in other marketing activities resulting from unfavorable pricing differentials between asset locations during the period. In addition, we experienced a decrease in our processing margin of approximately $17.6 million principally due to less favorable processing conditions in the 2009 period. The decrease in natural gas volumes sold was due to less end user demand and the increase in NGL volumes sold was principally due to increased capacity to deliver NGL volumes at our Godley plant starting in January 2009.

 

47


Table of Contents

Nine Months

Midstream gross margin decreased between the nine month periods primarily due to a decrease in processing margin of $75.3 million offset by an increase in fee-based revenue of $8.0 million. The increase from our fee-based revenue was primarily due to our Canyon pipeline assets and the increase in NGL take-away capacity at our Godley plant, allowing us to charge additional processing fees. The decrease in processing margins was primarily due to less favorable processing conditions during the 2009 period. The decrease in the volumes of natural gas sold was primarily due to less favorable market conditions as compared to the prior period and the increase in NGL volumes sold was due to increased capacity to deliver NGL volumes at our Godley plant starting in January 2009. We also experienced a favorable change in marketing activity between the periods of approximately $28.3 million due to the cessation of trading activity noted above offset by an unfavorable change of $4.1 million in other marketing activities resulting from unfavorable market conditions during the period.

Operating Expenses.

Three Months

Midstream operating expenses decreased between the three month periods primarily due to a net decrease in other operating expenses of $1.5 million partially offset by an increase in ad valorem taxes of approximately $0.9 million.

Nine Months

Midstream operating expenses increased between the nine month periods primarily due to increases in ad valorem taxes of $2.7 million and electricity expenses of $1.0 million. These increases were offset by a decrease in plant operating expenses of $1.2 million and a net decrease of approximately $2.5 million in other operating expenses.

Depreciation and Amortization.

Three and Nine Months

Midstream depreciation and amortization expense increased between the three and nine month periods primarily due to incremental depreciation from the continued expansion of our Godley plant.

Selling, General and Administrative.

Three Months

Midstream selling, general and administrative expenses increased between the three month periods primarily due to increased professional fees of approximately $1.7 million and the increase in our accrual of $10.0 million during the period related to the FERC matter. The increase was offset by a decrease in employee-related costs (including allocated overhead expenses) of $4.5 million and a net decrease of approximately $1.7 million in other expenses.

Nine Months

Midstream selling, general and administrative expenses increased between the nine month periods primarily due to an increase in professional fees of $8.4 million and the increase in our accrual of $10.0 million related to the FERC matter during the third quarter of 2009. This increase was partially offset by a net decrease in employee related costs (including allocated overhead expenses) of approximately $8.5 million.

Retail Propane and Other Retail Propane Related

 

     Three Months Ended September 30,          Nine Months Ended September 30,     
     2009     2008     Change    2009    2008    Change

Retail propane gallons (in thousands)

     87,569          90,386          (2,817)       398,202        422,109        (23,907) 

Retail propane revenues

    $ 162,224         $ 238,830         $ (76,606)      $ 829,901       $ 1,086,417      $ (256,516) 

Other retail propane related revenues

     22,063          24,736          (2,673)       72,570        76,524        (3,954) 

Retail propane cost of products sold

     80,232          187,799          (107,567)       378,524        744,316        (365,792) 

Other retail propane related cost of products sold

     4,796          7,604          (2,808)       14,495        17,099        (2,604) 
                                           

Gross margin

     99,259          68,163          31,096        509,452        401,526        107,926  

Operating expenses

     81,298          79,843          1,455        259,768        253,193        6,575  

Depreciation and amortization

     23,031          20,255          2,776        63,477        58,828        4,649  

Selling, general and administrative

     11,480          7,793          3,687        34,128        27,800        6,328  
                                           

Segment operating income

    $ (16,550 )      $ (39,728 )      $ 23,178       $ 152,079       $ 61,705       $ 90,374  
                                           

 

48


Table of Contents

Volumes.

Retail propane volumes decreased primarily due to the continued effects of customer conservation, the impact of the economic recession and, to a lesser extent, the decline in new home construction. These decreases were partially offset by the volume increases from acquisitions that are not included in the comparative periods. We use information gathered on temperatures based on heating degree days to also analyze our volume sales. Weather conditions can have a significant impact to the demand for propane volumes sales during the heating season, but temperatures during the nine months ended September 30, 2009 were only slightly colder than normal and were slightly warmer than the same period in 2008.

Gross Margin.

Three Months

Total gross margin increased between the three month periods primarily due to our ability to maintain a slower pace of decreasing selling prices despite a significant decrease in the wholesale market price of propane between the periods and due to changes in fair value of our non-hedged financial instruments. Our average cost per gallon of propane was approximately 50.0% lower during the three months ended September 30, 2009 as compared to the three months ended September 30, 2008. Unrealized gains recorded during the three months ended September 30, 2009 that related to the mark-to-market contracts were $1.5 million compared to $21.7 million of unrealized losses for the three months ended September 30, 2008, which affected the comparability in the gross margins between the three month periods.

Nine Months

Total gross margin increased between the nine month periods primarily due to our ability to maintain a slower pace of decreasing selling prices despite a significant decrease in the wholesale market price of propane and the impact of mark-to-market accounting of our financial instruments. Our average cost per gallon of propane was approximately 45.0% lower during the nine months ended September 30, 2009 as compared to the nine months ended September 30, 2008. To hedge a significant portion of our propane sales commitments, we utilize financial instruments as purchase commitments to lock in the margins. Prior to April 2009, these financial instruments were not designated as hedges for accounting purposes, and changes in market value were recorded in cost of products sold in the condensed consolidated statements of operations. During the nine months ended September 30, 2009, our propane margins were positively impacted by sales made to retail customers with whom we had previously entered into sales commitments, while the settlement of financial instruments related to those sales resulted in the realization of $42.6 million of losses that had previously been recognized in 2008.

Operating Expenses.

Three Months

The primary factors that affected our operating expenses for the three months ended September 30, 2009 were an increase in our benefit costs provided to employees of $2.1 million and an increase of $2.6 million in our business insurance reserves and claims. These increases are due to an increase in insurance claims during the three months ended September 30, 2009 coupled with rising insurance costs. Our operational employee incentive program costs were $1.1 million higher for the three months ended September 30, 2009 as compared to the three months ended September 30, 2008 due to favorable results achieved in comparison to the prior quarter. Propane operating expenses also increased slightly due to the additional operating expenses from acquisitions made since September 30, 2008; however, these increases were offset by cost control initiatives from our operations and by a decrease of $2.8 million in the vehicle fuel used for delivery to customers due to the significant decline in fuel prices between the periods.

Nine Months

The primary factors that affected our operating expenses for the nine months ended September 30, 2009 were an increase in our operational employee incentive program of $9.2 million due to more favorable results achieved during the nine months ended September 30, 2009 as compared to the prior period and an increase in employee wages and benefits of $6.4 million due to an increase related to additional employees from acquisitions completed after September 30, 2008, fiscal year merit increases given

 

49


Table of Contents

October 2008, and an increase in medical costs. Our business insurance reserves and claims also increased $2.9 million for the nine months ended September 20, 2009 as compared to the prior period. These increases are primarily due to increases in insurance claims coupled with rising insurance costs. Other propane operating expenses also increased slightly due to the additional operating expenses from acquisitions made since September 30, 2008; however, these increases were largely offset by cost control initiatives from our operations and by a decrease of $9.1 million in the vehicle fuel used for delivery to customers due to the significant decline in fuel prices between the periods.

Depreciation and Amortization.

The increase in depreciation and amortization expense for both the three and nine month periods was primarily related to assets added through acquisitions made after September 30, 2008.

Selling, General and Administrative.

The increase in selling, general and administrative expenses between comparable periods was primarily due to increased administrative expense allocations of $1.8 million and $5.3 million for the three and nine month periods, respectively, offset by a reduction in other non-recurring expenses incurred during the prior periods.

LIQUIDITY AND CAPITAL RESOURCES

Parent Company Only

The Parent Company currently has no separate operating activities apart from those conducted by ETP and its Operating Companies. The principal sources of cash flow for the Parent Company are its direct and indirect investments in the limited and general partner interests of ETP. The amount of cash that ETP can distribute to its partners, including the Parent Company, each quarter is based on earnings from ETP’s business activities and the amount of available cash, as discussed below. The Parent Company also has a $500.0 million revolving credit facility that expires in February 2011 with available capacity of $376.1 million as of September 30, 2009 and currently has no capital requirements.

The Parent Company’s primary cash requirements are for general and administrative expenses, debt service requirements and distributions to its general and limited partners. The Parent Company currently expects to fund its short-term needs for such items with its distributions from ETP.

ETP

ETP’s ability to satisfy its obligations and pay distributions to its Unitholders will depend on its future performance, which will be subject to prevailing economic, financial, business and weather conditions, and other factors, many of which are beyond management’s control.

ETP currently believes that its business has the following future capital requirements:

 

 

growth capital expenditures for our midstream and intrastate transportation and storage segments primarily for the construction of new pipelines and compression, for which we expect to spend between $30 million and $40 million during the last three months of 2009 and between $60 million and $80 million in 2010;

 

 

growth capital expenditures for our interstate transportation segment, excluding capital contributions to the MEP and FEP projects as discussed below, for the construction of new pipelines and pipeline expansions for our interstate operations, for which we expect to spend between $80 million and $100 million during the last three months of 2009 and between $880 million and $900 million in 2010;

 

 

capital contributions to MEP and FEP as follows:

 

  o

With respect to MEP, capital expenditures have been funded under a revolving credit facility at MEP and through capital contributions from us and KMP. In September 2009, MEP issued $800 million of senior unsecured notes and used the proceeds to reduce amounts outstanding under its credit facility. We made a contribution of $200 million to MEP during October 2009 and do not expect any additional capital contributions during the remainder of 2009. The October 2009 contribution was used to further reduce amounts outstanding under MEP’s credit facility. Subsequent to these repayments, the commitment amount under the MEP Facility was reduced from $1.4 billion to $275 million. Availability on MEP’s credit facility will be used to fund capital expenditures associated with MEP’s expansion projects that are expected to be completed by December 2010. For 2010, we expect our capital contributions to MEP to be between $80 million and $90 million.

 

50


Table of Contents
  o

With respect to FEP, it is in the process of finalizing the terms of a senior unsecured revolving credit facility of up to $1.1 billion, which will be severally guaranteed by ETP and KMP. If the credit facility closes in November 2009 as currently anticipated, we would not expect making additional capital contributions to FEP and would be reimbursed for our prior capital contributions, which totaled $70.0 million through September 30, 2009. If the credit facility does not close, we expect that we would need to make additional capital contributions of $140 million during the remainder of 2009 and between $300 million and $320 million in 2010 to fund FEP’s capital expenditures.

 

 

growth capital expenditures for our retail propane segment of between $10 million and $20 million during the last three months of 2009 and between $30 million and $40 million in 2010;

 

 

maintenance capital expenditures of between $35 million and $45 million during the last three months of 2009 and between $120 million and $130 million in 2010; and

 

 

acquisitions, including the potential acquisition of new pipeline systems and propane operations.

We generally fund our capital requirements with cash flows from operating activities and, to the extent that they exceed cash flows from operating activities, with proceeds of borrowings under existing credit facilities, long-term debt, the issuance of additional Common Units or a combination thereof.

In light of the current conditions in the capital markets, and based on our projected growth capital expenditures and capital contributions to joint venture entities, we and ETP have taken significant steps to preserve our liquidity position including, but not limited to, reducing discretionary capital expenditures and continuing to manage operating and administrative costs. During the nine months ended September 30, 2009, ETP received approximately $578.3 million in net proceeds from its January and April Common Unit offerings and $993.6 million in net proceeds from an offering of $1.0 billion of aggregate principal amount of ETP senior notes in April. As of September 30, 2009, in addition to approximately $50.1 million of cash on hand, ETP had available capacity under the ETP Credit Facility of approximately $1.45 billion. In addition, ETP received approximately $276.0 million in net proceeds from its October Common Unit offering. Based on our current estimates, we expect to utilize these resources, along with cash from ETP’s operations, to fund ETP’s announced growth capital expenditures and working capital needs without us or ETP having the need to access the capital markets until the latter half of 2010; however, we or ETP may issue debt or equity securities prior to that time as we deem prudent to provide liquidity for new capital projects or other partnership purposes.

The assets used in ETP’s natural gas operations, including pipelines, gathering systems and related facilities, are generally long-lived assets and do not require significant maintenance capital expenditures. The assets utilized in ETP’s propane operations do not typically require lengthy manufacturing process time or complicated, high technology components. Accordingly, ETP does not have any significant financial commitments for maintenance capital expenditures in its businesses. From time to time ETP experiences increases in pipe costs due to a number of reasons, including but not limited to, replacing pipe caused by delays from mills, limited selection of mills capable of producing large diameter pipe timely, higher steel prices and other factors beyond our control. However, ETP includes these factors into its anticipated growth capital expenditures for each year.

Cash Flows

Our internally generated cash flows may change in the future due to a number of factors, some of which we cannot control. These factors include regulatory changes, the price for our products and services, the demand for such products and services, margin requirements resulting from significant changes in commodity prices, operational risks, the successful integration of our acquisitions and other factors.

Operating Activities – Nine months ended September 30, 2009 compared to nine months ended September 30, 2008. Cash provided by operating activities during 2009 was $721.4 million as compared to $908.8 million for 2008. Net income was $455.8 million and $619.1 million for 2009 and 2008, respectively. The difference between net income and the net cash provided by operating activities consisted of changes in operating assets and liabilities of $10.2 million and $110.4 million and non-cash activity of $255.4 million and $179.4 million for 2009 and 2008, respectively.

The non-cash activity in 2009 and 2008 consisted primarily of depreciation and amortization of $239.6 million and $200.9 million, amortization of finance costs charged to interest of $11.6 million and $6.5 million and non-cash compensation expense of $22.3 million and $15.3 million for 2009 and 2008, respectively. These amounts are partially offset by the allowance for equity funds used during construction was $18.6 million and $45.3 million for 2009 and 2008, respectively.

 

51


Table of Contents

Various factors affect the changes in operating assets and liabilities such as the timing of accounts receivable collections, payments on accounts payable, the timing of the purchase and sale of propane and natural gas inventories, and the timing of advances and deposits received from customers.

Investing Activities – Nine months ended September 30, 2009 compared to nine months ended September 30, 2008. Cash used in investing activities during 2009 was $1.23 billion as compared to $1.44 billion for 2008. Total capital expenditures (excluding the allowance for equity funds used during construction) for 2009 were $703.5 million, including changes in accruals of $98.3 million. This compares to total capital expenditures (excluding the allowance for equity funds used during construction) for 2008 of $1.51 billion, including changes in accruals of $119.2 million. In addition, in 2009 we made advances to our joint ventures of $534.5 million. In 2008, we paid $62.0 million in cash for acquisitions. These amounts were offset by a $63.5 million net reimbursement during the first quarter of 2008 from M