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Mail Stop 3561
September 30, 2005
John W. McReynolds
General Partner
Energy Transfer Equity, L.P.
2828 Woodside Street
Dallas, Texas 75204
Re: Energy Transfer Equity, L.P.
Registration Statement on Form S-1
Filed September 2, 2005
File No. 333-128097
Dear Mr. McReynolds:
We have reviewed your filing and have the following comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Cover Page
1. We note a number of blank spaces throughout your registration
statement for information that you are not entitled to omit under
Rule 430A, such as the anticipated price range on the cover page
and
the dilution amounts on page 47. We note, however, that you have
stated the midpoint of the price range elsewhere in the document.
Therefore, it is unclear why you have not disclosed the price
range.
If the included information changes, we may have additional
comments.
Please allow us sufficient time to review your complete disclosure
prior to any distribution of preliminary prospectuses.
2. Please indicate that a portion of the proceeds will be used to
repay indebtedness to an affiliate of one of your underwriters.
Also, please clarify that the net proceeds of the $600 million
term
loan were used to make a distribution to your current equity
holders.
Disclose the purpose of the indebtedness throughout the
prospectus,
including in the Use of Proceeds section.
3. Please delete the word "rapidly-growing" from the second
paragraph.
4. You have included underwriters in addition to the managing
underwriters you identified on page 212. Please identify only the
lead or managing underwriters. Refer to Item 501(b)(8) of
Regulation
S-K.
5. Provide us in a timely manner copies of any artwork that you
intend to use. Please be advised that we may have comments on
these
materials and you should consider waiting for our comments before
printing and circulating any artwork.
Prospectus Summary, page 1
6. We remind you that the summary should provide a brief overview
of
the key aspects of the offering and you. As currently drafted,
your
22-page summary is too long and some of the disclosure is repeated
in
the body of the prospectus. Please revise to eliminate
redundancies
and reduce the detail provided in the summary. Also, the forward-
looking statements should follow the risk factors.
7. We note several claims you make, for example, your statement on
page 1 that ETP is the third largest publicly traded master
limited
partnership in equity market capitalization and your statement on
page 78 that ETP is the fourth largest retail manufacturer of
propane
in the United States. For these and similar claims elsewhere,
please
provide us annotated documentary evidence substantiating them. In
addition, for each use of industry data and statistics, tell us
whether this source is publicly available. If it was prepared
especially for you, file a consent for that industry source.
Additionally, provide us with annotated copies of the cited
materials
as support.
8. Please state in this section that you will make an initial
quarterly distribution of $0.175 per common unit. In addition,
state
the approximate date when you expect to pay the initial quarterly
distribution.
9. Please clarify throughout that you will purchase the additional
units directly from ETP and not from the equity holders.
Our Management, page 7
10. You state here and on page 13 that your general partner, LE
GP,
LLC, will manage your operations and activities. Please clarify
here
and in the cash distributions sub-section on page 12 whether LE
GP,
LLC will establish the quarterly cash distribution levels for your
common units and establish the cash reserves and payment of fees
and
expenses, including payments to LE GP, LLC and ETP.
Comparison of Rights of Holders of Our Common Units and ETP`s
Common
Units, page 8
11. In the table on page 9, where you discuss the respective
sources
of cash flow, please clarify briefly that ETP may be your
potential
competitor in the process of conducting its business and
operations,
as you discuss on page 25.
12. Here or in an appropriate location discuss the rights of the
holders of the Class D and E unitholders.
The Offering, page 12
13. Where you generally discuss your distribution policy, as in
this
section, please revise to state what you "will" pay instead of
what
you "intend" or "expect" to pay.
14. With respect to the limited call right, please disclose the
amount of your ownership that will be held by affiliates at the
offering date.
Risk Factors, page 23
In the future, we may not have sufficient cash to pay
distributions..., page 23
15. We note on page 13 that you will have sufficient cash from
operations to make the initial quarterly distribution on all units
for each quarter through August 31, 2006. Please disclose in this
location the dollar amount of available cash you need for this
stated
purpose.
Our general partner only has one executive officer..., page 26
16. Please clarify whether Mr. McReynolds will continue to serve
as
your chief financial officer following the offering. We note that
Mr. McReynolds was a partner at a law firm prior to becoming your
president and chief financial officer. We further note that you
cite
risks regarding compliance with section 404 of the Sarbanes-Oxley
Act. To the extent that Mr. McReynolds does not have an
accounting
or finance background, disclose any risks related to him serving
as
your chief financial officer.
Although we control ETP through our ownership of its general
partner..., page 39
17. You state on page 8 that ETP`s cash distributions to its
common
unitholders have a priority over your incentive distribution
rights
in ETP. Please discuss briefly, if appropriate, how ETP`s
inability
to meet its minimum quarterly distribution to its own unitholders
may
result in decreased distributions to you.
Potential conflicts of interest may arise among our general
partner,
its affiliates and us..., page 40
18. In the fourth bullet point you state that your general partner
determines which costs incurred by it and its affiliates are
reimbursable by you. Please expand the risk factor caption and
disclosure to include a brief discussion of the risk that if you
are
unable or unwilling to fully reimburse or indemnify your general
partner for obligations and liabilities it incurs in managing your
business, the value of your general partner, and therefore the
value
of your common units, may decline.
Our Cash Distribution Policy and Restrictions on Distributions,
page
48
19. Please change the caption entitled Restrictions on Our Ability
to
Change Our Cash Distribution Policy to reflect accurately the fact
that you also discuss in the sub-section the various limitations
on
your ability to make quarterly distributions. Also, please
include
any limitations on your ability to make distributions that will be
imposed by the new term loan that you refer to on page 110.
Our Initial Distribution Rate, page 49
20. Please disclose the factors based on which you have determined
the minimum quarterly distribution. To the extent applicable,
provide specific detail for each factor, for example, expected
cash
requirements or amount and due date of any material debt payment,
and
so on.
21. You state on page 50 that you will distribute all your
available
cash to common unitholders of record on a quarterly basis, and as
part of calculating available cash, you subtract the amount of
cash
reserves that your "general partner determines is necessary or
appropriate." Please make clear wherever you discuss available
cash
whether your general partner has absolute discretion to determine
the
amount or is limited by standards of reasonableness or other
restraints. In addition, clarify whether your general partner has
the right to modify or repeal your distribution policy at any time
and for or without any reason.
Unaudited Pro-Forma Consolidated Available Cash, page 53
22. Please add a footnote which shows your calculation of your
proceeds from the issuances of ETP common units or add a cross
reference to show specifically where this information can be
found.
Additionally, please disclose to whom the common units were
issued.
23. Your table on page 53 shows additional expenses of being a
public
company of $1.7 million for the year ended August 31, 2004 and
$1.3
million for the nine months ended May 31, 2005. Footnote (c)
discloses $2.5 million in incremental expenses. Please advise or
revise.
Estimated Cash Available to Pay Distributions Based Upon Estimated
Consolidated Adjusted EBITDA, page 58
24. Please explain the significant fluctuations in expected sales
of
natural gas and NGLs in the midstream segment for fiscal year end
August 31, 2006 as compared to fiscal year end August 31, 2004 pro
forma amounts.
25. Please explain the significant increase in EBITDA for the
transportation segment from $63.7 million for the year ended
August
31, 2004 to the $275 million estimate for the 12 months ended
August
31, 2006. We assume the increase is due primarily to acquisition
activity and the completion of construction of certain projects.
Please clarify the extent to which acquisitions and new
construction
contributed to the increase in EBITDA. Please also clarify your
growth assumptions to the extent that any of the increase reflects
assumed organic growth.
26. Please explain why you include the $131 million proceeds from
the
equity offering in this table. Based on disclosure in note (h) we
assume you are referring to the common units that you plan to
purchase from Energy Transfer Partners, L.P. noted in the Use of
Proceeds section on page 45. If our assumption is correct, please
explain why this adjustment is necessary since you consolidate
Energy
Transfer Partners, L.P. and there would be no consolidated net
impact
on cash. Notwithstanding the preceding, please explain whether
you
expect to depend on equity issuances in future periods to support
the
payment of cash distributions to existing unit holders.
Distributions of Cash upon Liquidation, page 66
27. If the general partner has a priority on distribution to the
common unitholders in the event of a liquidation, please describe
their different rights.
Management`s Discussion and Analysis, page 72
28. Please note that Item 303(a)(3)(ii) of Regulation S-K
requires,
as applicable, a discussion of any known trends or uncertainties
that
may materially affect your business or operations. Please expand
this section to discuss in reasonable detail any known material
trends and uncertainties that will have or are reasonably likely
to
have a material impact on your revenues or income or result in
your
liquidity decreasing or increasing in any material way. For
example,
if relevant, you may discuss the evolving trends in the midstream,
transportation and storage of natural gas, the natural gas and
propane prices, the nature of your competition, the consumer
demands
for natural gas and propane in the geographical markets where you
operate, and so on. In doing so, provide additional information
about the quality and variability of your earnings and cash flows
so
that investors can ascertain the likelihood of the extent past
performance is indicative of future performance. Also, please
discuss whether the recent hurricanes had a material effect on
your
business or operations. In addition, discuss in reasonable
detail:
* the economic or industry-wide factors relevant to your company,
and
* the material opportunities, challenges and risks in short and
long
term and the actions you are taking to address them.
Please refer to SEC Release No. 33-8350.
Financial Presentation, page 74
29. Your disclosure here suggests that you record the gains
resulting
from the issuances of Energy Transfer Partners, L.P. common units;
however, on page F-38, Gains on Issuances of Subsidiary Units, you
disclose that you elected not to record such gains. Please advise
or
revise.
Debt Obligations, page 109
30. Please identify the institution with which you have a $600
million senior secured term loan agreement and the institution
with
which you expect to enter into a credit facility of up to $100
million. Please explain the reason for entering into the new term
loan facility.
Legal Proceedings, page 146
31. Please describe the nature of the SCANA litigation. See Item
103
of Regulation S-K.
Management, page 148
32. In this table on page 148, please clarify which director will
resign from the board of directors of your general partner upon
closing. Also, update the ETP table to identify the directors
that
will not stand for re-election.
33. Please provide dates to account for the business experience of
Messrs. Rioux and Collins for the past five years. See Item
401(e)(1) of Regulation S-K.
Security Ownership of Certain Beneficial Owners and Management,
page
163
34. Please identify the persons who exercise voting and investment
control over the securities held of record by the non-public
entities
listed on pages 163 and 164. Also, please include the addresses
for
each of the beneficial holders. For example, we note that you
have
not included Mr. Hersh`s and Natural Gas Partners VI, L.P.`s
addresses on page 163 and Ms. Hicks`s address on page 164.
35. We note on pages 45 and 212 that the net proceeds from any
exercise of the underwriters` over-allotment option will be used
to
redeem an equal number of units from affiliates of your current
equity partners. It appears that doing so would render those
affiliates selling security holders in this offering. Please
advise.
With respect to any beneficial owner whose common units are
subject
to the over-allotment option, include the selling security holder
information in the Security Ownership of Certain Beneficial Owners
and Management section on page 163. In that table, please list
the
unit amounts those persons might have redeemed if identical units
are
sold for the over-allotment option and identify each beneficial
owner
who is a selling security holder as an underwriter in the event
the
over-allotment option is exercised.
Conflicts of Interest and Fiduciary Duties, page 168
Conflicts of Interests, page 168
36. It appears that your general partner may make certain
decisions
without others` approval. Please specify all decisions or types
of
decisions your general partner is entitled to make in its sole
discretion. In addition, if there is any appreciable likelihood
that
your general partner would exercise its power to withhold its
consent
to an assignee requesting admission as a substituted limited
partner,
as described on page 173, please include an appropriate risk
factor
discussing the negative impact on liquidity of that a power of
your
general partner.
Fiduciary Duties, page 170
37. On page 172 you state that in order to become one of your
limited
partners, "a common unitholder is required to agree to be bound by
the provisions in the partnership agreement..." Please clarify
that
the limited partners agree to be bound by the partnership
agreement
by purchasing common units.
Underwriting, page 212
38. We note your disclosure regarding electronic distribution.
Please identify specifically any members of the underwriting
syndicate that will engage in any electronic offer, sale or
distribution of the units and describe their procedures to us. If
you become aware of any additional members of the underwriting
syndicate that may engage in electronic offers, sales or
distributions after you respond to this comment, promptly
supplement
your response to identify those members and provide us with a
description of their procedures.
In your discussion of your procedures, tell us how your procedures
ensure that the distribution complies with Section 5 of the
Securities Act. In particular, describe:
* the communications used;
* the availability of the preliminary prospectus;
* the manner of conducting the distribution and sale, such as the
use
of indications of interest or conditional offers; and
* the manner and timing of funding of an account and payment of
the
purchase price.
In addition, please tell us whether you or the underwriters have
any
arrangements with a third party to host or access your preliminary
prospectus on the Internet. If so, identify the party and the
website, describe the material terms of your agreement, and
provide
us with a copy of any written agreement. Also provide us with
copies
of all information concerning your company or prospectus that has
appeared on that website. Again, if you subsequently enter into
any
of these arrangements, promptly supplement your response.
No Sales of Similar Securities, page 213
39. With respect to the lock-up agreements to which you refer,
please
disclose whether the underwriters may allow, on certain
circumstances, a transaction prohibited by those agreements, and
if
so, discuss all factors it will consider before granting its
consent.
Directed Unit Program, page 215
40. We note that you intend to engage in a directed unit offering.
Please state whether all common units thus purchased will be
subjected to lock-up restrictions, and whether any reserved units
not
so purchased will be offered by the underwriters to the general
public on the same terms as the other units.
41. Please provide us with all materials given to potential
purchasers in the directed unit offering. In addition, describe
to
us the mechanics of how and when the common units under the
directed
share program are offered and sold to investors. For example,
tell
us how the prospective recipients, particularly the "certain other
persons" and the number of reserved units are determined. Tell us
how and when the issuer and underwriter notified the directed unit
investors, including the types of communications used. Discuss
the
procedures these investors must follow in order to purchase the
offered securities. Tell us whether directed unit purchasers are
required to establish accounts before the effective time, and, if
so,
whether any funds are put in newly established brokerage accounts
before the effective date. Tell us how the procedures for the
directed unit program differ from the procedures for the general
offering to the public. Finally, tell us how you will assure that
this offer will meet the requirements of Section 5 of the
Securities
Act and Rule 134.
Affiliations, page 215
42. Please identify the affiliate of Wachovia Capital Markets LLC
that is your lender.
Energy Transfer Equity, L.P. and Subsidiaries
Audited Consolidated Financial Statements, page F-19
Notes to Consolidated Financial Statements, page F-27
General
43. Please provide us with the following information regarding
each
issuance of common units, warrants, options, or debt that is
convertible into common units. Providing the requested
information
in a tabular format for the period from September 1, 2004 to the
present would help expedite our review. Tell us in detail the
date
of each issuance, what was issued, all of the terms associated
with
each issuance (number of shares, stock price paid, exercise price
and
terms, and conversion price and terms), the fair value of a share
of
your common units on each issuance date, how you determined the
fair
value on each date, and the amount of any compensation expense,
interest expense, or other charges recorded in your financial
statements associated with each issuance, including how you
calculated any amount recorded. If any amounts are being
amortized
rather than expensed immediately, also tell us how you determined
the
amortization period. If the fair value you indicate for your
stock
on any of these issuance dates is less than the anticipated IPO
price, also describe the intervening events which occurred between
the issuance date and the date you filed your registration
statement
that significantly increased the fair value of your stock. Also,
reconcile the amounts of compensation expense and other expenses
recorded in your financial statements to the analysis you provide
us.
We may have further comments after we review your response.
Note 1. Operations and Organization, page F-27
44. Please tell us how you recorded the June 20, 2005 transactions
which resulted in you receiving 1,638,692 Common Units of Energy
Transfer Partners, L.P., 4.6662% limited partner interest in ETP
GP
and the 5% member interest of ETP LLC for the 5% limited partner
interest in Energy Transfer Equity, L.P. In this regard, an
overview
of all the entries giving rise to these items may be helpful to
our
understanding. In your response please cite the appropriate GAAP
literature you followed in recording amounts.
Note 3. Summary of Significant Accounting Policies and Balance
Sheet
Detail, page F-12
Gain on Issuances of Subsidiary Units, page F-38
45. Please clarify whether or not you have purchased a pro rata
share
of Energy Transfer Partners, L.P. related equity issuances to
maintain your ownership percentage in the Company. Please note
that
SAB 51 requires companies to recognize gains and losses on the
issuance of a subsidiary`s stock in the income statement or as
equity
transactions. Please advise or revise. See Questions 1 and 5 of
SAB
51.
Employee Incentive Interest, page F-40
46. Please tell us in detail how you determined that the estimated
fair value of the Employee Incentive Units on the date of grant
was
insignificant due to the preferred distributions the other
partners
would receive prior to vesting of the Employee Incentive
Interests.
In your response be sure to specify the fair value of the Employee
Incentive Units on the date of grant and the significant
assumptions
you used to determine the fair value of the units and preferred
distributions.
Energy Transfer Equity, L.P. and Subsidiaries
Notes to Consolidated Financial Statements, page F-27
Note 15. Summarized Condensed Consolidating Financial Statements,
page F-65
47. Please revise your disclosure to indicate, if true, that the
guarantor subsidiaries are 100% owned and that the guarantees are
joint and several. Otherwise, please tell us why you believe that
you qualify for the reduced disclosure requirements of Rule 3-10
of
Regulation S-X.
Unaudited Consolidated Interim Financial Statements, page F-75
Notes to Consolidated Financial Statements, page F-82
Note 12. Employee Incentive Interest, page F-96
48. Please identify for us the other party in the exchange
transaction that occurred in May 2005, in which you exchanged
631,320
common units of Energy Transfer Partners, L.P. and $1 million in
cash
for the redemption of 4,858,300 limited partner units. Tell us
your
basis of accounting for the assets transferred and any gains or
losses recognized on transfer. In your response please cite the
appropriate GAAP literature you followed in recording amounts.
Refer
to paragraph 18 of APB 29.
Item 16. Exhibits and Financial Statement Schedules, page II-3
49. Please revise to include your ratio of earning to fixed
charges
related to the debt registered by your subsidiary, Energy Transfer
Partners, L.P. Refer to Items 601(12) and 503(d) of Regulation S-
K.
Exhibits
50. Please file all required exhibits, including the underwriting
agreement, the legal and tax opinions and the organizational
documents for the limited partnerships, in a timely manner so that
we
may have time to review them before you request effectiveness of
your
registration statement.
* * * * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that the filing includes all information required under
the
Securities Act of 1933 and they have provided all information
investors require for an informed investment decision. Since the
company and its management are in possession of all facts relating
to
a company`s disclosure, they are responsible for the accuracy and
adequacy of the disclosures they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
? should the Commission or the staff, acting pursuant to
delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
? the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
? the company may not assert staff comments and the declaration
of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Anthony Watson, Staff Accountant, at (202)
551-
3318, or George Ohsiek, Accounting Branch Chief, at (202) 551-3843
if
you have questions regarding comments on the financial statements
and
related matters. Please contact Pradip Bhaumik, Attorney-Advisor,
at
(202) 551-3333, Ellie Quarles, Special Counsel, at (202) 551-3238,
or
me at (202) 551-3720 with any other questions.
Sincerely,
H. Christopher Owings
Assistant Director
cc: Thomas P. Mason, Esq.
Vinson & Elkins L.L.P.
Fax: (713) 615-5320
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John W. McReynolds
Energy Transfer Equity, L.P.
September 30, 2005
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