e8vk
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 1, 2007
DCP MIDSTREAM PARTNERS, LP
(Exact name of registrant as specified in its charter)
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Delaware
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001-32678
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03-0567133 |
(State or other jurisdiction of
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(Commission
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(IRS Employer |
incorporation)
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File Number)
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Identification No.) |
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370 17th Street, Suite 2775 |
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Denver, Colorado
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80202 |
(Address of principal executive offices)
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(Zip Code) |
Registrants telephone number, including area code: (303) 633-2900
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement.
On July 1, 2007, DCP Midstream Partners, LP (the Partnership) acquired from DCP Midstream,
LLC (DCP LLC), and two of its wholly-owned subsidiaries, DCP LP Holdings, LP (Holdings) and DCP
Midstream GP, LP (the General Partner and together with DCP LLC and Holdings referred to as
DCP) the following interests (the Transaction): (i) a 40% limited liability company interest in
Discovery Producer Services LLC, and (ii) a 25% limited liability company interest in DCP East
Texas Holdings, LLC (East Texas). The Transaction was completed in accordance with the Contribution Agreement,
dated May 23, 2007 (the Contribution Agreement), between the Partnership and DCP, previously
reported on the Partnerships Current Report on Form 8-K dated May 25, 2007. The description of the
Contribution Agreement contained in the Form 8-K filed on May 25, 2007 is incorporated herein by
reference and the Contribution Agreement filed in such Form 8-K as Exhibit 10.1 is incorporated
herein by reference.
In connection with the Transaction, the Partnership or wholly-owned subsidiaries of the
Partnership, entered into the material definitive agreements described below in this item.
Omnibus Agreement Amendment
On July 1, 2007, in connection with the Transaction, DCP LLC, the Partnership, the General
Partner, DCP Midstream GP, LLC, and DCP Midstream Operating, LP, amended the Third Amendment to
Omnibus Agreement between the parties by entering into the Fourth Amendment to Omnibus Agreement
(the Fourth Amendment). The Fourth Amendment increases the annual fee the Partnership pays to DCP
LLC by $158,000 for incremental general and administrative expenses DCP LLC provides to the
Partnership.
The Fourth Amendment is attached as Exhibit 10.2 to this report and is incorporated by
reference into this report in its entirety.
East Texas LLC Agreement
In connection with the Transaction, as of July 1, 2007, DCP Assets Holding, LP, a wholly-owned
subsidiary of the Partnership, and DCP LLC, entered into the Amended and Restated Limited Liability
Company Agreement for East Texas (the East Texas LLC Agreement). This agreement governs the
ownership and management of East Texas.
The East Texas LLC Agreement provides for the management of East Texas by a management
committee consisting of representatives of the members. The representatives to the management
committee will have voting power that corresponds to the ownership interest of the owner they
represent. Except for certain significant matters that are specified in the East Texas LLC
Agreement, all actions and decisions relating to East Texas require the approval of the management
committee representatives that represent a majority interest. East Texas is required under the East
Texas LLC Agreement to make distributions of available cash at least quarterly to its owners. The
management committee, by majority approval, will determine the amount of such distributions. DCP
LLC will be the operator of East Texas in accordance with the East Texas LLC Agreement. Under the
East Texas LLC Agreement, East Texas will be required to reimburse DCP LLC as the operator for all
direct and indirect expenses it incurs or payments its makes on behalf of East Texas and all other
expenses allocable to East Texas or otherwise incurred by East Texas in connection with operating
East Texas business.
Both members of East Texas will be subject to reciprocal rights of first offer under the East
Texas LLC Agreement. Accordingly, prior to selling all or a portion of its respective interest in
East Texas, that member will be required to first offer its membership interest to the other
member.
The East Texas LLC Agreement is attached as Exhibit 10.3 to this report and is incorporated by
reference into this report in its entirety.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On July 1, 2007, the Partnership completed the Transaction, as described in Item 1.01 and
3.02 of this report which are incorporated by reference into this item in their entirety. The total
purchase price paid by the Partnership in the Transaction was approximately $272.3 million
consisting of (i) $27.0 million worth of the Partnerships common units representing 620,404 common
units, (ii) $0.6 million worth of the Partnerships general partner equivalent units representing
12,661 general partner equivalent units, and (iii) $244.7 million in cash. The Partnership financed
the cash portion of the purchase price with the Partnerships existing credit facility and intends
to ultimately fund the Transaction with a combination of debt and equity. The purchase price is
subject to standard closing adjustments.
DCP LLC and its affiliates own directly or indirectly approximately 37.4% of the limited
partner units of the Partnership, and own 100% of the General Partner of the Partnership. These
affiliations create a conflict of interest in the General Partner. As a result of this conflict,
the board of directors of DCP Midstream GP, LLC, the general partner of the General Partner,
submitted the Transaction for resolution of the conflict to the conflicts committee of the board of
directors, a committee consisting entirely of independent directors. Acting pursuant to the
provisions of the partnership agreement of the Partnership, the conflicts committee reviewed the
Transaction and, with the assistance of independent financial and legal advisors, determined that
the Transaction was fair to the Partnership, approved the Transaction and recommended approval of
the Transaction to the full board of directors. After receiving the approval and recommendation of
the conflicts committee, the board of directors approved the Transaction.
The description of the Contribution Agreement contained in the Form 8-K filed on May 25, 2007
is incorporated herein by reference and the Contribution Agreement filed in such Form 8-K as
Exhibit 10.1 is incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
On July 1, 2007, the Partnership issued approximately $27.0 million of the Transaction
consideration to Holdings in the form of 620,404 common units representing limited partner
interests in the Partnership. The private placement of these common units with Holdings pursuant to
the Contribution Agreement is being made in reliance upon an exemption from the registration
requirements of the Securities Act of 1933, as amended, pursuant to Section 4(2) thereof.
Item 7.01. Regulation FD Disclosure.
On July 2, 2007, the Partnership issued a press release announcing the Transaction. A
copy of the press release is furnished and attached as Exhibit 99.2 hereto and is incorporated
herein by reference.
A copy of the press release is being furnished and is attached as Exhibit 99.2 hereto and
incorporated into this Item 7.01 by reference. In accordance with General Instruction B.2 of Form
8-K, the press release shall not be deemed filed for the purpose of Section 18 of the Exchange
Act of 1934, as amended, or otherwise subject to the liabilities of that section, nor shall such
information and Exhibit be deemed incorporated by reference into any filing under the Securities
Act of 1933 or Exchange Act of 1934, each as amended, except as shall be expressly set forth by
specific reference in such filing.
Item 9.01 Financial Statements and Exhibits.
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Financial statements of businesses acquired. |
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Audited consolidated financial statements of Discovery
Producer Services LLC as of December 31, 2006 and 2005, and
for the years ended December 31, 2006, 2005 and 2004, and
unaudited consolidated financial statements of Discovery
Producer Services LLC as of March 31, 2007, and for the
three months ended March 31, 2007 and 2006, are attached
hereto as Exhibit 99.3, and are incorporated herein by
reference. |
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Audited combined financial statements of The East Texas
Midstream Business as of December 31, 2006 and 2005, and
for the years ended December 31, 2006, 2005 and 2004, and
unaudited combined financial statements of the East Texas
Midstream Business as of March 31, 2007, and for the three
months ended March 31, 2007 and 2006, are attached hereto
as Exhibit 99.4, and are incorporated herein by reference. |
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(b) |
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Pro forma financial information. |
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The unaudited pro forma condensed consolidated financial
statements of the Partnership as of March 31, 2007, and for the
three months ended March 31, 2007, and for the years ended
December 31, 2006, 2005 and 2004, are attached hereto as
Exhibit 99.5, and are incorporated herein by reference. |
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(c) |
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Not applicable. |
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(d) |
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Exhibits. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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DCP Midstream Partners, LP |
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By: |
DCP Midstream GP, LP its General Partner |
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By: |
DCP Midstream GP, LLC its General Partner |
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Date: July 2, 2007 |
/s/ Thomas E. Long
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Name: |
Thomas E. Long |
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Title: |
Vice President and Chief Financial Officer |
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EXHIBIT INDEX
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Exhibit Number |
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Description |
+ Exhibit 10.1
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Contribution Agreement, dated May 23, 2007, between DCP LP Holdings, LP, DCP Midstream, LLC, DCP
Midstream GP, LP and DCP Midstream Partners, LP (incorporated by reference to Exhibit 10.1 to DCP
Midstream Partners, LPs Current Report on Form 8-K filed with the SEC on May 25, 2007). |
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Exhibit 10.2
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Fourth Amendment to Omnibus Agreement, dated July 1, 2007, among DCP Midstream, LLC, DCP Midstream
Partners, LP, DCP Midstream GP, LP, DCP Midstream GP, LLC, and DCP Midstream Operating, LP. |
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Exhibit 10.3
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Amended and Restated Limited Liability Company Agreement of DCP East Texas Holdings, LLC, dated July
1, 2007, between DCP Midstream, LLC and DCP Assets Holding, LP. |
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Exhibit 23.1
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Consent of Ernst & Young LLP on Discovery Producer Services LLCs Consolidated Financial Statements
as of December 31, 2006 and 2005 and for the years ended December 31, 2006, 2005 and 2004. |
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Exhibit 23.2
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Consent of Deloitte & Touche LLP on East Texas Midstream Business Combined Financial Statements as
of December 31, 2006 and 2005 and for the years ended December 31, 2006, 2005 and 2004. |
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+ Exhibit 99.1
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Press release of DCP Midstream Partners, LP dated May 23, 2007 (incorporated by reference to Exhibit
99.1 to DCP Midstream Partners, LPs Current Report on Form 8-K filed with the SEC on May 25, 2007). |
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Exhibit 99.2
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Press release of DCP Midstream Partners, LP dated July 2, 2007. |
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Exhibit 99.3
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Audited and unaudited historical consolidated financial statements of Discovery Producer Services LLC. |
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Exhibit 99.4
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Audited and unaudited historical combined financial statements of the East Texas Midstream Business. |
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Exhibit 99.5
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Unaudited pro forma condensed consolidated financial statements of DCP Midstream Partners, LP. |
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Incorporated by reference. |
exv10w2
Exhibit 10.2
FOURTH AMENDMENT
TO
OMNIBUS AGREEMENT
This Fourth Amendment to Omnibus Agreement (this Amendment) is dated as of July 1,
2007 and entered into by and among DCP Midstream, LLC, a Delaware limited liability Company,
formerly known as Duke Energy Field Services, LLC (DCP Midstream), DCP Midstream GP, LLC,
a Delaware limited liability company (DCP GP), DCP Midstream GP, LP, a Delaware limited
partnership (the General Partner), DCP Midstream Partners, LP, a Delaware limited
partnership (the MLP), and DCP Midstream Operating, LP (the OLP). The
above-named entities are sometimes referred to in this Amendment each as a Party and
collectively as the Parties.
RECITALS
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The Parties entered into that certain Omnibus Agreement dated as of December 7,
2005, as amended by that certain First Amendment to Omnibus Agreement dated April 1,
2006, as further amended by that certain Second Amendment to Omnibus Agreement dated
November 1, 2006, and as further amended by that certain Third Amendment to Omnibus
Agreement dated May 9, 2007 (together referred to as the Omnibus Agreement)
(capitalized terms used but not defined herein shall have the meaning given thereto in
the Omnibus Agreement). |
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The Parties desire to amend Section 3.3 of the Omnibus Agreement to adjust the
fixed general and administrative expenses to take into account the ownership interest
in Discovery Producer Services LLC acquired by the MLP in the transaction set forth in
that certain Contribution Agreement among DCP LP Holdings, LP, DCP Midstream, the
General Partner and the MLP dated as of May 23, 2007 (the Discovery Contribution
Agreement). |
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledge, the Parties hereby agree as follows:
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Omnibus Agreement Amendment. The Omnibus Agreement is hereby amended by
replacing Section 3.3(a) in its entirety with the following: |
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The amount for which DEFS shall be entitled to reimbursement from the Partnership
Group pursuant to Section 3.1(b) for general and administrative expenses associated
with the original assets that were part of the MLPs initial public offering shall
be a fixed fee equal to $4.8 million through calendar year 2006 (the IPO G&A
Expenses Limit). After calendar year 2006, the IPO G&A Expenses Limit shall be
increased annually by the percentage increase in the Consumer Price Index All
Urban Consumers, U.S. City Average, Not Seasonally Adjusted for the applicable year
(the CPI Adjustment). The amount for which DEFS shall be entitled to
reimbursement from the Partnership Group pursuant to
Section 3.1(b) for general and administrative expenses associated with the
contribution of the GSR assets to the MLP in the Contribution Agreement shall be a |
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fixed fee equal to $2.0 million for calendar years 2006 and 2007 (the GSR G&A
Expenses Limit), but shall be prorated for calendar year 2006 based on the number
of days remaining in calendar year 2006 following the Closing Date (as that term is
defined in the Contribution Agreement). The amount for which DEFS shall be entitled
to reimbursement from the Partnership Group pursuant to Section 3.1(b) for general
and administrative expenses associated with the acquisition of the Anadarko assets
by the MLP in the Anadarko Purchase and Sale Agreement shall be a fixed fee equal to
$200,000 for calendar year 2007 (the Anadarko G&A Expenses Limit), but shall be
prorated for calendar year 2007 based on the number of days remaining in calendar
year 2007 following the Closing Date (as that term is defined in the Anadarko
Purchase and Sale Agreement). The amount for which DEFS shall be entitled to
reimbursement from the Partnership Group pursuant to Section 3.1(b) for general and
administrative expenses associated with the acquisition of the Discovery interests
by the MLP in the Discovery Contribution Agreement shall be a fixed fee equal to
$158,000 for calendar year 2007 (the Discovery G&A Expenses Limit), but shall be
prorated for calendar year 2007 based on the number of days remaining in calendar
year 2007 following the Closing Date (as that term is defined in the Discovery
Contribution Agreement). After calendar year 2007, the GSR G&A Expenses Limit, the
Anadarko G&A Expenses Limit, and the Discovery G&A Expenses Limit shall be increased
by the CPI Adjustment. In the event that the Partnership Group makes any additional
acquisitions of assets or businesses or the business of the Partnership Group
otherwise expands following the date of this Agreement, then the IPO G&A Expenses
Limit, the GSR G&A Expenses Limit, the Anadarko G&A Expenses Limit and/or the
Discovery G&A Expenses Limit shall be appropriately increased in order to account
for adjustments in the nature and extent of the general and administrative services
by DEFS to the Partnership Group, with any such increase subject to the approval of
both the Special Committee of DCP GPs Board of Directors and DEFS. For time
periods after calendar year 2008, DEFS and the General Partner will determine the
amount of general and administrative expenses that will be properly allocated to the
Partnership in accordance with the terms of the Partnership Agreement.
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Acknowledgement. Except as amended hereby, the Omnibus Agreement shall remain
in full force and effect as previously executed, and the Parties hereby ratify the
Omnibus Agreement as amended hereby. |
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3. |
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Counterparts. This Amendment may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the Parties hereto and
delivered (including by facsimile) to the other Parties. |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EACH OF THE UNDERSIGNED, intending to be legally bound, has caused this Amendment to be duly
executed and delivered to be effective as of the date first above written, regardless of the actual
date of execution of this Amendment.
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DCP MIDSTREAM, LLC |
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By:
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/s/ Brian S. Frederick
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Name: Brian S. Frederick |
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Title: Vice President, Planning and Corporate
Development |
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DCP MIDSTREAM GP, LLC |
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By:
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/s/ Michael S. Richards |
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Name: Michael S. Richards |
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Title: Vice President, General Counsel and Secretary |
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DCP MIDSTREAM GP, LP |
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By: DCP MIDSTREAM GP, LLC, its general partner |
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By:
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/s/ Michael S. Richards |
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Name: Michael S. Richards |
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Title: Vice President, General Counsel and Secretary |
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DCP MIDSTREAM PARTNERS, LP |
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By: DCP MIDSTREAM GP, LP, its general partner |
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By: DCP MIDSTREAM GP, LLC, its general partner |
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By:
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/s/ Michael S. Richards |
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Name: Michael S. Richards |
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Title: Vice President, General Counsel and Secretary |
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DCP MIDSTREAM OPERATING, LP |
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By:
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/s/ Michael S. Richards |
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Name: Michael S. Richards |
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Title: Vice President, General Counsel and Secretary |
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3
exv10w3
Exhibit 10.3
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF DCP EAST TEXAS HOLDINGS, LLC
DATED JULY 1, 2007
BETWEEN
DCP MIDSTREAM, LLC
AND
DCP ASSETS HOLDING, LP
TABLE OF CONTENTS
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ARTICLE 1 |
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1 |
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SUBJECT MATTER, DEFINITIONS AND RULES OF CONSTRUCTION |
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1 |
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1.1 |
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Subject Matter |
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1 |
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1.2 |
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Definitions |
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1 |
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1.3 |
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Rules of Construction |
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1.4 |
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MLP Partnership Agreement |
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ARTICLE 2 |
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10 |
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ORGANIZATION AND CONDUCT OF BUSINESS |
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10 |
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2.1 |
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Company |
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10 |
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2.2 |
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Continuation of Company |
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10 |
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2.3 |
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Purpose |
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2.4 |
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Place of Business |
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2.5 |
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Term |
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10 |
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2.6 |
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Business Opportunities; No Implied Duty |
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11 |
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ARTICLE 3 |
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11 |
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CAPITAL STRUCTURE |
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11 |
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3.1 |
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Percentage Interests |
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11 |
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3.2 |
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Capital Contributions |
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3.3 |
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No Voluntary Contributions; Interest |
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11 |
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3.4 |
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Capital Accounts |
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3.5 |
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Return of Capital |
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ARTICLE 4 |
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14 |
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ALLOCATIONS AND DISTRIBUTIONS |
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4.1 |
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Allocations for Capital Account Purposes |
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4.2 |
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Allocations for Tax Purposes |
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4.3 |
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Distributions |
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ARTICLE 5 |
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MANAGEMENT |
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5.1 |
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The Management Committee |
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5.2 |
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Composition; Removal and Replacement of Representative |
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5.3 |
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Officers |
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5.4 |
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Voting |
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5.5 |
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Meetings of Management Committee |
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5.6 |
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Remuneration |
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5.7 |
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Individual Action by Members |
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ARTICLE 6 |
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INDEMNIFICATION; LIMITATIONS ON LIABILITY |
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6.1 |
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Indemnification by the Company |
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6.2 |
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Indemnification by the Members |
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6.3 |
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Defense of Action |
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6.4 |
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Limited Liability of Members |
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ARTICLE 7 |
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OPERATION OF COMPANY |
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7.1 |
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Operator |
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7.2 |
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Expenses |
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7.3 |
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Reimbursement for Insurance |
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7.4 |
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Accounts |
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ARTICLE 8 |
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TRANSFER OF INTERESTS |
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8.1 |
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Restrictions on Transfer |
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8.2 |
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Possible Additional Restrictions on Transfer |
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8.3 |
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Right of First Offer |
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8.4 |
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Substituted Members |
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8.5 |
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Documentation; Validity of Transfer |
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8.6 |
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Covenant Not to Withdraw or Dissolve |
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ARTICLE 9 |
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DEFAULT |
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9.1 |
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Events of Default |
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9.2 |
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Consequence of a Default |
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ARTICLE 10 |
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DISSOLUTION AND LIQUIDATION |
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10.1 |
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Dissolution |
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10.2 |
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Liquidation |
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ARTICLE 11 |
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FINANCIAL MATTERS |
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11.1 |
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Books and Records |
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11.2 |
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Financial Reports; Budget |
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11.3 |
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Accounts |
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11.4 |
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Tax Matters |
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ARTICLE 12 |
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MISCELLANEOUS |
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12.1 |
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Notices |
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12.2 |
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Amendment |
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12.3 |
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Governing Law |
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12.4 |
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Binding Effect |
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12.5 |
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No Third Party Rights |
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12.6 |
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Counterparts |
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12.7 |
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Invalidity |
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12.8 |
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Entire Agreement |
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35 |
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12.9 |
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Expenses |
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12.10 |
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Waiver |
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12.11 |
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Dispute Resolution |
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12.12 |
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Disclosure |
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38 |
|
12.13 |
|
Brokers and Finder |
|
|
38 |
|
12.14 |
|
Further Assurances |
|
|
38 |
|
12.15 |
|
Section Headings |
|
|
38 |
|
12.16 |
|
Waiver of Certain Damages |
|
|
38 |
|
12.17 |
|
Certificates of Interest |
|
|
39 |
|
Exhibits
None
ii
Schedules
Schedule 3.1 Members Percentage Interest
Schedule 5.4 Unanimous Consent Matters
iii
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF DCP EAST TEXAS HOLDINGS, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the Agreement), dated
as of July 1, 2007, by and between DCP MIDSTREAM, LLC (the Midstream Member), a Delaware
limited liability company, and DCP ASSETS HOLDING, LP (the MLP Member), a Delaware
limited liability company.
ARTICLE 1
SUBJECT MATTER, DEFINITIONS AND RULES OF CONSTRUCTION
1.1 Subject Matter. This Agreement amends and restates the Limited Liability Company
Agreement of DCP East Texas Holdings, LLC, a Delaware limited liability company (the
Company) dated as of March 23, 2007 (the Initial Agreement), by the Midstream
Member, as sole member.
1.2 Definitions. For purposes of this Agreement, including the Schedules hereto, the
meanings herein assigned to them and the capitalized terms defined elsewhere in this Agreement, by
inclusion in quotation marks and parentheses, shall have the meanings so ascribed to them.
Adjusted Capital Account means the Capital Account maintained for each Member as of
the end of each taxable year of the Company, a) increased by any amount that such Member is
obligated to restore under the standards set by Regulations section 1.704-1(b)(2)(ii)(c) or is
deemed obligated to restore pursuant to the penultimate sentences of Regulations sections
1.704-2(g)(1) and 1.704-2(i)(5), and b) decreased by (i) the amount of all losses and deductions
that, as of the end of such taxable year, are reasonably expected to be allocated to such Member in
subsequent years under sections 704(e)(2) and 706(d) of the Code and Regulations section
1.751-1(b)(2)(ii), and (ii) the amount of all distributions that, as of the end of such taxable
year, are reasonably expected to be made to such Member in subsequent years in accordance with the
terms of this Agreement or otherwise to the extent they exceed offsetting increases to such
Members Capital Account that are reasonably expected to occur during (or prior to) the year in
which such distributions are reasonably expected to be made (other than increases as a result of a
minimum chargeback pursuant to Section 4.1(d) or 4.1(e)). The foregoing definition
of Adjusted Capital Account is intended to comply with the provisions of the Regulations section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
Adjusted Property means any property of the Company, the Carrying Value of which has
been adjusted pursuant to Section 3.4(d).
Affiliate means with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with
such specified Person or, in the case of a Person that is a limited partnership, an
Affiliate shall include any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the general partner of such limited partnership. For
the purposes of this definition, control means the ownership, directly or indirectly, of more
than 50% of the Voting Stock, of such Person; and the terms controlling and controlled have
meanings correlative to the foregoing.
Agreed Rate means the lesser of (a) the rate publicly announced by Wachovia Bank,
National Association, New York, New York (or any successor bank) from time to time as its prime
rate, plus one percent (1%) and (b) the maximum rate permitted by applicable law.
Agreed Value of any Contributed Property or Adjusted Property means the fair market
value of such property or other considerations at the time of contribution as determined by the
Company (but only in the absence of a negotiated determination of fair market value between the
Members, in which case such negotiated value shall be accepted as the Agreed Value) using such
reasonable methods of valuation as it may adopt. In the absence of a negotiated value between the
Members (if such negotiated allocation exists, the negotiated allocation will be conclusive), the
Company shall, in its sole discretion, use such method as it deems reasonable and appropriate to
allocate the aggregate Agreed Value of Contributed Properties or Adjusted Property in a single or
integrated transaction among such properties on a basis proportional to their fair market value.
Agreement has the meaning ascribed to such term in the preamble.
Arbitral Dispute means any dispute, claim, counterclaim, demand, cause of action,
controversy and other matters in question arising out of or relating to this Agreement or the
alleged breach hereof, or in any way relating to the subject matter of this Agreement or the
relationship between the Members created by this Agreement, regardless of whether (a) allegedly
extra-contractual in nature, (b) sounding in contract, tort, or otherwise, (c) provided for by
applicable Law or otherwise, or (d) seeking damages or any other relief, whether at Law, in equity,
or otherwise.
Available Cash means, with respect to any Distribution Period ending prior to the
dissolution or liquidation of the Company, and without duplication:
(a) the sum of (i) all cash and cash equivalents of the Company on hand at the end of
such Distribution Period, determined in the reasonable discretion of the Management
Committee, and (ii) all additional cash and cash equivalents of the Company on hand on the
date of determination of Available Cash with respect to such Distribution Period, less
(b) the amount of any cash reserves that is necessary or appropriate in the reasonable
discretion of the Management Committee to (i) provide for the proper conduct of the
business of the Company (including reserves for future
2
capital expenditures and for anticipated future credit needs of the Company)
subsequent to such Distribution Period or (ii) comply with applicable Law or any loan
agreement, security agreement, mortgage, debt instrument or other agreement or obligation
to which the Company is a party or by which it is bound or its assets are subject;
provided, however, that distributions made by the Company or cash reserves established,
increased or reduced after the end of such Distribution Period but on or before the date of
determination of Available Cash with respect to such Distribution Period shall be deemed to
have been made, established, increased or reduced, for purposes of determining Available
Cash, within such Distribution Period if the Management Committee so determines.
Notwithstanding the foregoing, Available Cash with respect to the Distribution Period in
which a liquidation or dissolution of the Company occurs and any subsequent Distribution
Period shall equal zero.
Bankruptcy means (i) the filing of any petition or the commencement of any suit or
proceeding by an individual or entity pursuant to Bankruptcy Law seeking an order for relief,
liquidation, reorganization or protection from creditors, (ii) the entry of an order for relief
against an individual or entity pursuant to Bankruptcy Law, or (iii) the appointment of a receiver,
trustee or custodian for a substantial portion individuals or entitys assets or property,
provided such order for relief, liquidation, reorganization or protection from creditors is not
dismissed within sixty (60) days after such appointment of a receiver, trustee or custodian.
Bankruptcy Law means Title 11, U.S. Code or any similar Federal or state Law for the
relief of debtors.
Book-Tax Disparity means with respect to any item of Contributed Property or
Adjusted Property, as of the date of any determination, the difference between the Carrying Value
of such Contributed Property or Adjusted Property, and the adjusted basis thereof for federal
income tax purposes as of such date. A Members share of the Companys Book Tax Disparities in all
Contributed Property or Adjusted Property will be reflected by the difference between such Members
Capital Account balance as maintained pursuant to Section 3.4 and the hypothetical balance
of such Members Capital Account computed as if it had been maintained strictly in accordance with
federal income tax accounting principles. The determination of Book Tax Disparity and a Members
share thereof shall be determined consistently with Regulations section 1.704-3(d).
Business Day means any day other than a Saturday, Sunday or other day on which banks
in the State of Colorado are permitted or required to close.
Capital Account means the capital account maintained for each Member for the
purposes of section 704(b) of the Code as described in Section 3.4.
3
Capital Contribution means, with respect to any Member, the amount of capital
contributed by such Member to the Company in accordance with Article 3 of this Agreement.
Carrying Value means (a) with respect to Contributed Property, the Agreed Value of
such property reduced (but not below zero) by all depreciation, amortization and cost recovery
deductions relating to such property changed to the Members Capital Accounts, and (b) with respect
to any other Company property, the adjusted basis of such property for federal income tax purposes,
all as of the time of determination. The Carrying Value of any property shall be adjusted from
time to time in accordance with Section 3.4(d) and to reflect changes, additions or other
adjustments to the Carrying Value for dispositions and acquisitions of Company properties, as
deemed appropriate by the Company.
Certificates have the meaning ascribed to such term in Section 12.17.
Certificate of Formation means the certificate of formation of the Company, as
amended or restated from time to time, filed in the Office of the Secretary of State of the State
of Delaware in accordance with the Delaware Act.
Code means the Internal Revenue Code of 1986, as amended.
Company has the meaning ascribed to such term in Section 1.1.
Company Assets means the assets and properties owned, leased or used by the Company
in its business, including without limitation, all of the partnership interests in FCV, ELP and
DETG, which collectively own and operate certain midstream gathering, compression, dehydrating,
processing and fractionating assets located in Panola, Harrison, Shelby, and Rusk Counties, Texas,
and Caddo and DeSoto Parishes, Louisiana.
Company Indemnitee has the meaning ascribed to such term in Section 6.1.
Company Minimum Gain means the amount determined pursuant to Treasury Regulations
section 1.704-2(d).
Contributed Property means each property or other asset, in such form as may be
permitted by the Delaware Act, but excluding cash or cash equivalents, contributed to the Company
by a Member. Once the Carrying Value of a Contributed Property is adjusted pursuant to Section
3.4(d), such property shall no longer constitute a Contributed Property for the purposes of
Section 4.2, but shall be deemed an Adjusted Property for such purposes.
Default has the meaning ascribed to such term in Section 9.1.
Defaulting Member has the meaning ascribed to such term in Section 9.1.
4
Delaware Act means the Delaware Limited Liability Company Act, 6 Del. Code §§
18-101, et seq., as amended from time to time.
DETG shall mean DCP East Texas Gathering, LP, a Delaware limited partnership.
Distribution Period means a period equal to a fiscal quarter of the Company or such
shorter portion thereof, as determined from time to time by majority vote of the Management
Committee.
Economic Risk of Loss has the meaning set forth in Regulations section 1.752-2(a).
ELP shall mean EasTrans Limited Partnership, a Texas limited partnership.
Equity means common stock in the case of a corporation, membership interest in the
case of a limited liability company, a partnership interest in the case of a partnership or other
similar interest in the case of another Person.
FCV means Fuels Cotton Valley Gathering, LP, a Delaware limited partnership.
Fiscal Year means (i)the period of time commencing on the effective date of the
Initial Agreement and ending on December 31, 2007, in the case of the first Fiscal Year of the
Company or (ii) in the case of subsequent Fiscal Years of the Company, any subsequent twelve (12)
month period commencing January 1 and ending on December 31.
GAAP means generally accepted accounting principles in the United States of America.
GAAP Capital Account means the capital account maintained in accordance with GAAP
for purposes of the annual financial statements referred to in Section 11.2.
Governmental Body means a government organization, subdivision, court, agency or
authority thereof, whether foreign or domestic.
Indemnified Party has the meaning ascribed to such term in Section 6.3.
Indemnifying Party has the meaning ascribed to such term in Section 6.3.
Initial Agreement has the meaning ascribed to such term in Section 1.1.
Interest means the ownership interest of a Member in the Company (which shall be
considered intangible personal property for all purposes) consisting of (i) such Members right to
receive its Percentage Interest of the Companys profits, losses,
5
allocations and distributions, (ii) such Members right to vote or grant or withhold consents
with respect to matters related to the Company as provided herein or in the Delaware Act and (iii)
such Members other rights and privileges as herein provided.
Internal Transfer has the meaning ascribed to such term in Section 8.1.
Internal Transferee has the meaning ascribed to such term in Section 8.1.
Laws means all applicable statutes, laws, rules, regulations, orders, ordinances,
judgments and decrees of any Governmental Body, including the common or civil law of any Government
Body.
Liabilities has the meaning ascribed to such term in Section 6.1.
Majority means one or more Members having between them more than 50% of the
Interests of all Members entitled to vote.
Make-Whole Amount has the meaning ascribed to such term in Section 8.6(b).
Management Committee means the committee comprised of the individuals designated by
the Members pursuant to Section 5.2 hereof and all other individuals who may from time to
time by duly appointed by the Members to serve as representatives of such committee in accordance
with the provisions hereof, in each case so long as such individual shall continue in such capacity
in accordance with the terms hereof. References herein to the Management Committee shall refer to
such individuals collectively in their capacity as representatives on such committee.
Marketed Interest has the meaning ascribed to such term in Section 8.3.
Member Indemnitee has the meaning ascribed to such term in Section 6.2.
Members means the Midstream Member, the MLP Member and any other Persons who are
admitted as Members in the Company pursuant to this Agreement, but does not include any Person who
has ceased to be a Member in the Company.
Midstream Member has the meaning ascribed to such term in the preamble.
Minimum Gain Attributable to a Member Nonrecourse Debt means the amount determined
in accordance with the principles of Regulations section 1.704-2(i)(3).
MLP means DCP Midstream Partners, LP, a Delaware limited partnership.
MLP Member has the meaning ascribed to such term in the preamble.
6
MLP Partnership Agreement means the Second Amended and Restated Agreement of the
Limited Partnership of the MLP, dated November 1, 2006, as it may be amended and restated from time
to time.
Monetary Default has the meaning ascribed to such term in Section 9.1.
Negotiation Period has the meaning ascribed to such term in Section 8.3.
Net Agreed Value means (i) in the case of any Contributed Property, the fair market
value of such property reduced by any liabilities either assumed by the Company upon such
contribution or to which such property is subject when contributed, and (ii) in the case of any
property distributed to a Member by the Company, the Companys Carrying Value of such property at
the time such property is distributed, reduced by any indebtedness either assumed by such Member
upon such distribution or to which such property is subject at the time of distribution as
determined under section 752 of the Code.
Net Income means, for any taxable period, the excess, if any, of the Companys items
of income and gain for such taxable period over the Companys items of loss and deduction for such
taxable period. The items included in the calculation of Net Income shall be determine in
accordance with Section 3.4(b) and shall not include any items specifically allocated under
Section 4.1(d) through 4.1(j). For purposes of Section 4.1(a) and
(b), in determining whether Net Loss has been allocated to any member for any previous
taxable period, any Unrealized Gain or Unrealized Loss allocated pursuant to Section 3.4(d)
shall be treated as an item of gain or loss to be allocated pursuant to Section 4.1.
Net Loss means, for any taxable period, the excess, if any, of the Companys items
of loss and deduction for such taxable period over the Companys items of income and gain for such
taxable period. The items included in the calculation of Net Loss shall be determined in accordance
with Section 3.4(b) and shall not include any items specifically allocated under
Sections 4.1(d) through 4.1(j). For purposes of Sections 4.1(a) and
(b), in determining whether Net Loss has been allocated to any Member for any previous
taxable period, any Unrealized Gain or Unrealized Loss allocated pursuant to Section 3.4(d)
shall be treated as an item of gain or loss to be allocated pursuant to Section 4.1.
Nonrecourse Built-in Gain means with respect to any Contributed Properties or
Adjusted Properties that are subject to a mortgage or negative hedge securing a Nonrecourse
Liability, the amount of any taxable gain that would be allocated to the Members pursuant to
Section 4.2(b)(i)(A) or 4.2(b)(ii)(A) if such properties were disposed of in a
taxable transaction in full satisfaction of such liabilities and for no other consideration.
Nonrecourse Debt has the meaning set forth in Regulations section 1.704-2(b)(4).
7
Nonrecourse Deductions means any and all items of loss, deduction, or expenditure
(described in section 705(a)(2)(B) of the Code) that, in accordance with the principles of
Regulations section 1.704-2(b)(i) are attributable to a Nonrecourse Liability.
Nondefaulting Member has the meaning ascribed to such term in Section 9.1.
Non-selling Member has the meaning ascribed to such term in Section 8.3.
Notice of Dispute has the meaning ascribed to such term in Section 12.11.
Operator has the meaning ascribed to such term in Section 7.1.
Parent means (a) with respect to the Midstream Member, DCP Midstream, LLC, a
Delaware limited liability company, (b) with respect to the MLP Member, the MLP.
Percentage Interest means, with respect to a Member, the percentage set forth
opposite such Members name on Schedule 3.1, subject to adjustment pursuant to a transfer
of an Interest by a Member or the issuance of new Interests by the Company, in either case, in
compliance with the terms of this Agreement.
Person means any individual, corporation, partnership, joint venture, association,
joint stock company, limited liability company, trust, estate, unincorporated organization or
Governmental Body.
Purchase Notice has the meaning ascribed to such term in Section 8.3.
Recapture Income means any gain recognized by the Company (computed without regard
to any adjustment required by section 734 or 743 of the Code) upon the disposition of any property
or asset of the Company, which gain is characterized as ordinary income because it represents the
recapture of deductions previously taken with respect to such property or asset.
Record Date means the dated established by the Members from time to time for
determining the identity of Members entitled to receive any distribution pursuant to Section
4.3.
Regulations means the U.S. Treasury Regulations promulgated under the Code, as in
effect from time to time.
Residual Gain or Residual Loss means any item of gain or loss, as the case
may be, of the Company recognized for federal income tax purposes resulting from a sale, exchange
or other disposition of a Contributed Property or Adjusted Property, to the extent such item of
gain or loss is not allocated to Section 4.2(b)(i)(A) or 4.2(b)(ii)(A), to
eliminate Book Tax Disparities.
8
Sale Offer has the meaning ascribed to such term in Section 8.3.
Section 708 Termination has the meaning ascribed to such term in Section
8.6(b).
Selling Member has the meaning ascribed to such term in Section 8.3.
Tax Matters Partner has the meaning ascribed to such term in Section 11.4.
Third Party Action has the meaning ascribed to such term in Section 6.3.
Unrealized Gain attributable to any item of Company property means, as of any date
of determination, the excess, if any, of (a) the fair market value of such property as of such date
over (b) the Carrying Value of such property as of such date (prior to any adjustment to be made
pursuant to Section 3.4(d) or 3.4(e) as of such date). In determining such
Unrealized Gain, the aggregate cash amount and fair market value of a Company asset (including cash
or cash equivalents) shall be determined by the Company and agreed to by the Members using such
reasonable method of valuation as it may adopt.
Unrealized Loss attributable to any item of Company property means, as of any date
of determination, the excess, if any, of (a) the Carrying Value of such property as of such date
(prior to any adjustment to be made pursuant to Section 3.4(d) or 3.4(e) as of such
date) over (b) the fair market value of such property as of such date. In determining such
Unrealized Loss, the aggregate cash amount and fair market value of a Company asset (including cash
or cash equivalents) shall be determined by the Company and agreed to by the Members using such
reasonable method of valuation as it may adopt.
Voting Stock means the securities or other ownership interest in any Person which
have ordinary voting power under ordinary circumstances or the election of directors (or the
equivalent) of such Person.
1.3 Rules of Construction. For purposes of this Agreement, including the Exhibits and
Schedules hereto:
(a) General. Unless the context otherwise requires, (i) or is not
exclusive; (ii) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP; (iii) words in the singular include the plural and words in the
plural include the singular; (iv) words in the masculine include the feminine and words in
the feminine include the masculine; (v) any date specified for any action that is not a
Business Day shall be deemed to mean the first Business Day after such date; (vi) a
reference to a Member includes its successors and permitted assigns; and (vii) any
reference to $ or dollars shall be a reference to U.S. dollars.
9
(b) Articles and Sections. Reference to Articles and Sections are, unless
otherwise specified, to Articles and Sections of this Agreement.
1.4 MLP Partnership Agreement. Notwithstanding any other provision of this Agreement,
the Members agree that to the extent any provision of this Agreement contradicts with or is in
conflict with any provision of the MLP Partnership Agreement, the provisions of the MLP Partnership
Agreement shall control.
ARTICLE 2
ORGANIZATION AND CONDUCT OF BUSINESS
2.1 Company. Subject to the terms and conditions of this Agreement, the Members
hereby agree to operate and manage the Company, a limited liability company organized pursuant to
the Delaware Act, which shall engage in the business described herein.
2.2 Continuation of Company. The parties hereto hereby continue the Company, which is
that certain limited liability company formed on March 23, 2007, upon the filing of a Certificate
of Formation in the Office of Secretary of State of the State of Delaware in accordance with the
requirements of the Delaware Act. From time to time, the Company shall file such further
certificates of formation, qualifications to do business, fictitious name certificates or make
filings in such jurisdictions as may be necessary or appropriate in connection with the conduct of
the Companys business or to provide notification of the limitation of liability of the Members
under applicable law.
2.3 Purpose. The business and purposes of the Company shall be (i) to own and operate
the Company Assets and (ii) to engage in such other business activities that may be undertaken by a
limited liability company under the Delaware Act as the Members may from time to time determine;
provided, however, that the Members determine, as of the date of the acquisition or commencement of
such other business activity, that such activity (a) generates qualifying income (as such term is
defined pursuant to section 7704 of the Code) or (b) enhances the operations of an activity of the
Company that generates qualifying income.
2.4 Place of Business. The principal place of business of the Company shall be 370
17th Street, Suite 2500, Denver, Colorado 80202 or such other place as the Members may
from time to time determine. The registered office of the Company in the State of Delaware shall
be 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the registered agent for
service of process on the Company shall be The Corporation Trust Company, whose business address is
the same as the Companys registered office (or such other registered office and registered agent
as the Members may from time to time select).
2.5 Term. The Company shall continue indefinitely unless dissolved in accordance with
Section 10.1.
10
2.6 Business Opportunities; No Implied Duty. Except as may be provided in the MLP
Partnership Agreement, the Members and their respective Affiliates may engage, directly or
indirectly, without the consent of the other Members or the Company, in other business
opportunities, transactions, ventures or other arrangements of any nature or description,
independently or with others, including without limitation business of a nature which may be
competitive with or the same as or similar to the business of the Company, regardless of the
geographic location of such business, and without any duty or obligation to account to the other
Members or the Company in connection therewith.
ARTICLE 3
CAPITAL STRUCTURE
3.1 Percentage Interests. The Percentage Interests of the Members on the date hereof
are set forth on Schedule 3.1 hereto. Upon the transfer by a Member of all or a portion of
such Members Interest pursuant to Article 8 or the issuance of new Interests by the
Company in compliance with this Agreement, Schedule 3.1 shall be updated to reflect the
Percentage Interests of the Members effective upon such transfer or issuance.
3.2 Capital Contributions. The Members shall make Capital Contributions of cash,
property or services as they determine and approve pursuant to Section 5.4. If the Members
determine and approve pursuant to Section 5.4 that cash Capital Contributions should be
made for any purpose, the Members shall make such cash Capital Contributions in proportion to their
respective Percentage Interests in such amounts and on such dates as the Members may determine.
The Management Committee shall issue a written request to each Member for payment of such cash
Capital Contributions on such due dates and in such amounts; provided, that the due date for any
such cash Capital Contribution shall be no less that 5 days after the date such written request is
issued to the Members. All Capital Contributions received by the Company after the due date
specified in such written request shall be accompanied by interest on such overdue amounts, which
interest shall be payable to the Company and shall accrue from and after such specified dates until
paid at the Agreed Rate.
3.3 No Voluntary Contributions; Interest. No Member shall make any Capital
Contributions to the Company except pursuant to this Article 3. No Member shall be
entitled to interest on its Capital Contribution.
3.4 Capital Accounts. A separate Capital Account shall be established and maintained
for each Member in accordance with Regulations section 1.704(b)(2)(iv), Section 4.1 and
following terms and conditions:
(a) Increases and Decreases. Each Members Capital Account shall be (i)
increased by (A) the amount of cash or cash equivalent Capital Contributions made by such
Member, (B) the Net Agreed Value of non-cash assets contributed as Capital Contributions by
such Member, and (C) allocations to such Member of Company income and gain (or items
thereof), including, without limitation, income and gain exempt from tax and income and
gain described in Regulations
11
section 1.704-1(b)(2)(iv)(g), but excluding income and gain described in Regulations
section 1.704-1(b)(4)(i); and (ii) shall be decreased by (A) the amount of cash or cash
equivalents distributed to such Member by the Company, (B) the Net Agreed Value of any
non-cash assets or other property distributed to such Member by the Company, and (C)
allocations to such Member of Company losses and deductions (or items thereof), including
losses and deductions described in Regulations section 1.704-1(b)(2)(iv)(g) (but excluding
losses or deductions described in Regulations section 1.704-1(b)(4)(i) or (iii)).
(b) Computation of Amounts. For purposes of computing the amount of any item
of income, gain, loss or deduction to be reflected in the Members Capital Accounts, the
determination, recognition and classification of any such item shall be the same as its
determination, recognition and classification for federal income tax purposes (including,
without limitation, any method of depreciation, cost recovery or amortization used for that
purpose), provided that:
(i) All fees and other expenses incurred by the Company to promote the sale of (or to
sell) any interest that can neither be deducted nor amortized under section 709 of the
Code, if any, shall, for purposes of Capital Account maintenance, but treated as an item of
deduction at the time such fees and other expenses are required and shall be allocated
between the Members pursuant to Sections 4.1 and 4.2.
(ii) Except as otherwise provided in Regulations section 1.704-1(b)(2)(iv)(m), the
computation of all items of income, gain, loss and deduction shall be made without regard
to any election under section 754 of the Code which may be made by the Company and, as to
those items described in section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard
to the fact that such items are not includable in gross income or are neither currently
deductible nor capitalized for federal income tax purposes.
(iii) Any income, gain or loss attributable to the taxable disposition of any Company
property shall be determined as if the adjusted basis of such property as of such date of
disposition were equal in amount to the Companys Carrying Value with respect to such
property as of such date.
(iv) In accordance with the requirements of section 704(b) of the Code, any deductions
for depreciation, cost recovery or amortization attributable to any Contributed Property
shall be determined as if the adjusted basis of such property of the date it was acquired
by the Company was equal to the Agreed Value of such property on the date if was acquired
by the Company. Upon an adjustment pursuant to Section 3.4(d) or 3.4(e) to
the Carrying Value of any Company property subject to depreciation, cost recovery or
amortization, any further deductions for such depreciation, cost recovery or amortization
attributable to such property shall be determined (A) as if the adjusted basis of such
property were equal to the Carrying Value of such property immediately
12
following such adjustment and (B) using a rate of depreciation, cost recovery or
amortization derived from the same method or useful life (or, if applicable, the meaning
useful life) as is applied for federal income tax purposes; provided, however, that if the
asset has a zero adjusted basis for federal income tax purposes, depreciation, cost
recovery or amortization deductions shall be determined using any reasonable method that
the Company may adopt.
(c) Transferees. A transferee of all or a part of a Members Interest shall
succeed to all or the transferred part of the Capital Account of the transferring Member.
(d) Contributed Unrealized Gains and Losses. Consistent with the provisions
of the Regulations section 1.704-1(b)(2)(iv)(f), on an issuance of additional Interests for
cash or Contributed Property, the Capital Accounts of all Members and the Carrying Value of
each Company property immediately prior to such issuance shall be adjusted upward or
downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Company
property, as if such Unrealized Gain or Unrealized Loss had been recognized on an actual
sale of each such property immediately prior to such issuance and had been allocated to the
Members at such time pursuant to Section 4.1.
(e) Distributed Unrealized Gains and Losses. In accordance with Regulations
section 1.704-1(b)(2)(iv)(f), immediately prior to any distribution to a Member of any
Company property (other than a distribution of cash or cash equivalents that are not in
redemption or retirement of a Members Interest), the Capital Accounts of all Members and
the Carrying Value of each Company property shall be adjusted upward or downward to reflect
any Unrealized Gain or Unrealized Loss attributable to such Company property, as if such
Unrealized Gain or Unrealized Loss had been recognized in a sale of such property
immediately prior to such distribution for an amount equal to its fair market value (which
shall be determined by the Company using any valuation method it deems reasonable under the
circumstances), and had been allocated to the Members at such time, pursuant to Section
4.1.
(f) Code Compliance. Notwithstanding any provision in this Agreement to the
contrary, each Members Capital Account shall be maintained and adjusted in accordance with
the Code and the Regulations thereunder, including without limitation (i) the adjustments
permitted or required by Code section 704(b) and, to the extent applicable, the principles
expressed on Code section 704(c) and (ii) the adjustments required to maintain capital
accounts in accordance with the substantial economic effect test set forth in the
Regulations under Code section 704(b).
3.5 Return of Capital. No Member shall have the right to demand a return of such
Members Capital Contributions (or the balance of such Members Capital Account). Further, no
Member has the right (i) to demand and receive any distribution from the
13
Company in any form other than cash or (ii) to bring an action of partition against the
Company or its property. Neither the Members nor the Management Committee shall have any personal
liability for the repayment of the Capital Contributions from Members. No Member is required to
contribute or to lend any cash or property to the Company to enable the Company to return any other
Members Capital Contribution.
ARTICLE 4
ALLOCATIONS AND DISTRIBUTIONS
4.1 Allocations for Capital Account Purposes. For purposes of maintaining the Capital
Accounts and in determining the rights of the Members between themselves, the Companys items of
income, gain, loss and deduction (computed in accordance with Section 3.4(b)) shall be allocated
between the Members in each taxable year or portion thereof (an allocation period) as provided
herein below.
(a) Net Income. All items of income, gain, loss and deduction taken into
account in computing Net Income for such allocation period shall be allocated to each of
the Members in accordance with its respective Percentage Interest.
(b) Net Losses. All items of income, gain, loss and deduction taken into
account in computing Net Losses for such allocation period shall be allocated to each
Member in accordance with its respective Percentage Interest; provided, however, that Net
Losses shall not be allocated pursuant to this Section 4.1(b) to the extent that
such allocation would cause a Member to have a deficit balance in its Adjusted Capital
Account at the end of such taxable year (or increase any existing deficit balance in its
Adjusted Capital Account).
(c) Nonrecourse Liabilities. For the purposes of Regulations section
1.752-3(a)(3), the Members agree that Nonrecourse Liabilities of the Company in excess of
the sum of (A) the amount of Company Minimum Gain and (B) the total amount of Nonrecourse
Built-in Gain shall be allocated between the Members in accordance with their respective
Percentage Interests.
(d) Company Minimum Gain Chargeback. Notwithstanding the other provisions of
this Section 4.1, except as provided in Regulations section 1.704-2(f)(2)
through(5), if there is a net decrease in Company Minimum Gain during any Company taxable
year, each Member shall be allocated items of Company income and gain for such period (and,
if necessary, subsequent periods) in the manner and amounts provided in Regulations
sections 1.704-2(f)(6) and (g)(2) and section 1.704(j)(2)(i), or any successor provisions.
For purposes of this Section 4.1(d), each Members Adjusted Capital Account balance
shall be determined, and the allocation of income or gain required hereunder shall be
effected, prior to the application of any other allocations pursuant to this Section
4.1 with respect to such taxable year (other than an allocation pursuant to Section
4.1(h) or (i)).
14
(e) Chargeback of Minimum Gain Attributable to Member Nonrecourse Debt.
Notwithstanding the other provisions of this Section 4.1 (other than Section
4.1(d), except as provided in Regulations section 1.704-2(i)(4)), if there is a net
decrease in Minimum Gain Attributable to Member Nonrecourse Debt during any Company taxable
period, any Member with a share of Minimum Gain Attributable to Member Nonrecourse Debt at
the beginning of such taxable period shall be allocated items of Company income and gain
for such period (and, if necessary, subsequent periods) in the manner and amounts provided
in Regulations sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor provisions.
For purposes of this Section 4.1, such Members Adjusted Capital Account balance
shall be determined and the allocation of income or gain required hereunder shall be
effected, prior to the application of any other allocations pursuant to this Section 4.1,
other than Sections 4.1(d), (h) and (i), with respect to such
taxable period.
(f) Qualified Income Offset. If any Member unexpectedly receives adjustments,
allocations or distributions described in Regulations section 1.704-1(b)(2)(ii)(d)(4)
through (6) (or any successor provisions), items of Company income and gain shall be
specifically allocated to such Member in an amount and manner sufficient to eliminate, to
the extent required by the Regulations promulgated under section 704(b) of the Code; the
deficit balance, if any, in its Adjusted Capital Account created by such adjustments,
allocations or distributions as quickly as possible unless such deficit balance is
otherwise eliminated pursuant to Section 4.1(d) or 4.1(e).
(g) Gross Income Offset. If any Member has a deficit balance in its Adjusted
Capital Account at the end of any Company taxable period which is in excess of the sum of
(i) the amount such Member is obligated to restore pursuant to any provisions of this
Agreement and (ii) the amount such Member is deemed obligated to restore pursuant to the
penultimate sentences of Regulations sections 1.704-2(g)(1) and 1.704-2(i)(5), such Member
shall be specifically allocated items of Company gross income and gain in the amount of
such excess as quickly as possible; provided that an allocation pursuant to this
Section 4.1(g) shall be made only if and to the extent that such Member would have
a deficit balance in its Adjusted Capital Account after all other allocations provided in
this Section 4.1 have been tentatively made as if this Section 4.1(g) was
not in the Agreement.
(h) Nonrecourse Deductions. Nonrecourse Deductions for any taxable year shall
be allocated to the Members in accordance with their respective Percentage Interests. If
the Company determines in its good faith discretion that the Companys Nonrecourse
Deductions must be allocated in a different ration to satisfy the safe harbor requirements
of the Regulations promulgated under section 704(b) of the Code, the Company is authorized,
upon notice to the Members, to revise the prescribed ration to the numerically closest
ration which does satisfy the requirements.
15
(i) Member Nonrecourse Deductions. Member Nonrecourse Deductions for any
taxable year shall be allocated 100% to the Member that bears the Economic Risk of Loss for
such Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable
in accordance with Regulations section 1.704-2(i) (or any successor provision). If more
than one Member bears the Economic Risk of Loss of respect to a Member Nonrecourse Debt,
such Member Nonrecourse Deductions attributable thereto shall be allocated between such
Members ratably in proportion to their respective shares of such Economic Risk of Loss.
(j) Code Section 754 Adjustments. To the extent an adjustment tax basis of
any Company asset pursuant to section 734(b) or 743(b) of the Code is required, pursuant to
Regulations section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital
Accounts, the amount of such adjustments to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis), and such item gain or loss shall be specially allocated
to the Members in a manner consistent with the manner in which their Capital Accounts are
required to be adjusted pursuant to such section of the Regulations.
4.2 Allocations for Tax Purposes. The Members agree as follows:
(a) Allocations of Gain, Loss, etc. Except as otherwise provided herein, for
federal income tax purposes, each item of income, gain loss and deduction which is
recognized by the Company for federal income tax purposes shall be allocated between the
Members in the same manner as its correlative item of book income, gain, loss or
deduction is allocated pursuant to Section 4.1 hereof.
(b) Book-Tax Disparities. In an attempt to eliminate Book-Tax Disparities
attributable to a Contributed Property or Adjusted Property, items of income, gain, loss
depreciation, amortization and cost recovery deductions shall be allocated for federal
income tax purposes between the Members as follows:
(i) In the case of a Contributed Property, (A) such items of income, gain, loss,
depreciation, amortization and cost recovery deductions attributable thereto shall be
allocated between the Members in the manner provided under section 704(c) of the Code and
section 1.704-3(d) of the Regulations (i.e. the remedial method) that takes into account
the variation between the Agreed Value of such property and its adjusted basis at the time
of contribution; and (B) any item of Residual Gain or Residual Loss attributable thereto
shall be allocated between the Members in the same manner as its correlative of book gain
or loss is allocated pursuant to Section 4.1.
16
(ii) In the case of an Adjusted Property, (A) such items of shall be allocated between
the Members in a manner consistent with the principles of section 704(c) of the Code and
section 1.704-3(d) of the Regulations (i.e. the remedial method) to take into account the
Unrealized Gain or Unrealized Loss attributable to such property and the allocations
thereof pursuant to Section 3.4(d) or (e), unless such property was
originally a Contributed Property, in which case such items shall be allocated between the
Members in a manner consistent with Section 4.2(b)(i); and (B) any item of Residual
Gain or Residual Loss attributable to an Adjusted Property shall be allocated between the
Members in the same manner as its correlative item book gain or loss is allocated
pursuant to Section 4.1.
(c) Conventions/Allocations. For the proper administration of the Company,
the Company shall (i) adopt such conventions as it deems appropriate in determining the
amount of depreciation, amortization and cost recovery deductions; and (ii) amend the
provisions of this Agreement as appropriate to reflect the proposal or promulgation of
Regulations under section 704(b) or section 704(c) of the Code. The Company may adopt such
conventions, make such allocations and make such amendments to this Agreement as provided
in Section 4.2(c) only if such conventions, allocations or amendments are
consistent with section 704 of the Code.
(d) Section 743(b). The Company may determine to depreciate the portion of an
adjustment under section 743(b) of the Code attributable to unrealized appreciation in any
Adjusted Property (to the extent of the unamortized Book-Tax Disparity) using a
predetermined rate derived from the depreciation method and useful life applied to the
Companys common basis of such property, despite the inconsistency of such method with
Regulations section 1.167(c)-1(a)(6), or any successor provisions. If the Company
determines that such reporting position cannot reasonably be taken, the Company may adopt
any reasonable depreciation convention that would not have a material adverse effect on the
Members.
(e) Recapture Income. Any gain allocated to the Members upon the sale or
other taxable disposition of any Company asset shall, to the extent possible, after taking
into account other required allocations of gain pursuant to this Section 4.2 be
characterized as Recapture Income in the same proportions and the same extent as such
Members (or their predecessors in interest) have been allocated any deductions directly or
indirectly giving rise to the treatment of such gains as Recapture Income.
(f) Section 754. All items of income, gain, loss, deduction and credit
recognized by the Company for federal income tax purposes and allocated by the Members in
accordance with the provisions hereof shall be determined without regard to any election
under section 754 of the Code which may be made by the Company; provided, however, that
such allocations, once made, shall be adjusted
17
as necessary or appropriate to take into account those adjustments permitted or
required by sections 734 and 743 of the Code.
4.3 Distributions. Within 30 days following the end of each Distribution Period, an
amount equal to 100% of Available Cash with respect to such Distribution Period shall, subject to
section 18-607 of the Delaware Act, be distributed in accordance with this Article 4 by the
Company to the Members in accordance with their respective Percentage Interests.
ARTICLE 5
MANAGEMENT
5.1 The Management Committee. The business and affairs of the Company shall be
managed by or under the direction of the Members acting through the Management Committee, subject
to the delegation of powers and duties to officers of the Company and other Persons as provided for
by resolution of the Management Committee.
5.2 Composition; Removal and Replacement of Representative. The Management Committee
shall be comprised of one or more representatives designated by each Member. Each Member shall
designate by written notice to the other Members its representatives to serve on the Management
Committee and alternates to serve in such representatives absences. Each representative and
alternate shall serve at the pleasure of such Member and shall represent and bind such Member with
respect to any matter. Alternates may attend all Management Committee meetings but shall have no
vote at such meetings except in the absence of the representative for whom he is the alternate.
Upon the death, resignation or removal for any reason of any representative or alternate of a
Member, the appointing Member shall promptly appoint a successor.
5.3 Officers. The Management Committee may appoint employees of Members or their
Affiliates to serve as officers of the Company, and such officers may include but not be limited to
a president, one or more vice presidents, a treasurer and a secretary.
5.4 Voting. All decisions, approvals and other actions of any Member under this
Agreement shall be effected by vote of its representative on the Management Committee. The
Management Committee representative of each Member shall have one vote equal to the Percentage
Interest of the Member appointing such representative and shall exercise such vote on behalf of
such appointing Member in connection with all matters under this Agreement.
(a) All decisions and actions with respect to the Company and its business shall be
made and taken by the affirmative vote of the Member or Members holding a Majority acting
through their representative on the Management Committee, except as provided in clauses
(b) and (c) of this Section 5.4.
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(b) In the case of those matters set forth on Schedule 5.4, any decision
or action with respect to such matters shall be made and taken by unanimous affirmative
vote of Members acting through their representatives on the Management Committee; provided,
that the approval of any such matter set forth on Schedule 5.4 by the MLP Member
shall not require, and shall not be inferred to require, that such matter be referred to,
considered or approved by the conflicts committee of the board of directors of the general
partner of the MLP Member, it being understood that conflicts of interest, if any, shall be
addressed in the manner provided in the MLP Partnership Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 5.4,
if (i) a material breach or default under a material agreement of the Company, (ii) a
default or failure to make payment of an obligation of the Company or a failure to take
other action is likely to result in the imposition of a lien upon or a seizure or other
collection action against a material asset or assets of the Company or (iii) a failure to
comply with an order of a Governmental Body having jurisdiction directed to the Company, in
each case, would be reasonably likely to have a material adverse effect on the business,
operations or financial condition of the Company, any Member may require all of the Members
to make a Capital Contribution pursuant to Section 3.2 hereof to cure such default,
pay such obligation, comply with such order or take other action in connection therewith by
delivering written notice of the other Member of its intent to require a Capital
Contribution pursuant to this Section 5.4(c); provided, the aggregate amount of
such required Capital Contribution may be no more than the minimum amount necessary to
prevent a default, seizure or noncompliance of the type described in clauses (i), (ii) and
(iii) of this paragraph.
5.5 Meetings of Management Committee. The Members agree as follows:
(a) Scheduling. Meetings of the Management Committee shall occur when called
by any member of the Management Committee. The member calling the meeting shall provide
notice of and an agenda for the Management Committee meeting to all representatives at
least 10 Business Days prior to the dates of such meetings, provided that the business
matters to be acted upon at any such meeting shall not be limited to the matters included
on such agenda.
(b) Conduct of Business. The Management Committee shall conduct its meetings
in accordance with such rules as it may from time to time establish and the secretary shall
keep minutes of its meetings and issue resolutions evidencing the actions taken by it.
Upon the request of any Member, the secretary shall provide such Member with copies of such
minutes and resolutions. Management Committee representatives may attend meetings and vote
either in person or through duly authorized written proxies. Unless otherwise agreed, all
meetings of the Management Committee shall be held at the principal office of the Company
or by conference telephone or similar means of communication by
19
which all representatives can participate in the meeting. Any action of the
Management Committee may be taken without a meeting by unanimous written consent of the
representatives.
(c) Quorum. At meetings of the Management Committee representatives of (i)
Members holding a Majority present in person, by conference telephone or by written proxy
and entitled to vote, shall constitute a quorum for the transaction of business for
purposes for considering matters under Section 5.4(a) and (ii) all of the Members
present in person, by conference telephone or by written proxy and entitled to vote, shall
constitute a quorum for the transaction of business for purposes of considering matters
under Section 5.4(b).
5.6 Remuneration. The Management Committee representative and alternate employed by
each Member shall receive no compensation from the Company for performing services in such
capacity. Each Member shall be responsible for the payment of the salaries, benefits, retirement
allowances and travel and lodging expenses for its Management Committee representatives or
alternates.
5.7 Individual Action by Members. No individual Member, solely by reason of its
status as such, has any right to transact any business for the Company or any authority of power to
sign for or bind the Company unless such power or authority has been expressly delegated to such
Member in accordance with this Agreement; provided, however, that with respect to the enforcement
of the Companys rights under any contract between the Company and a Member or an Affiliate of a
Member, any and all actions necessary to enforce the Companys rights thereunder shall be taken
exclusively by the Members who are not, or whose Affiliate is not, party to such contract.
Further, each individual Member shall have the right to participate in audits by the Company of the
Affiliates of another Member which audits are made pursuant to contracts between the Company and
such Affiliates.
ARTICLE 6
INDEMNIFICATION; LIMITATIONS ON LIABILITY
6.1 Indemnification by the Company. The Company shall indemnify and hold harmless
each Member, the Management Committee representatives and alternates of each Member and the
officers of the Company (each individually, a Company Indemnitee) from and against any
and all losses, claims, demands, costs, damages, liabilities, expenses of any nature (including
reasonable attorneys fees and disbursements), judgments, fines, settlements, and other amounts
actually and reasonably incurred by such Company Indemnitee and arising from any threatened,
pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative or other, including any appeals to which a Company Indemnitee was
or is a party or is threatened to be made a party (collectively, Liabilities), arising
out of or incidental to the business of the Company or such Company Indemnitees status as a
Member, Management Committee representative or
20
alternate of a Member or an officer of the Company; provided, however, that the Company shall
not indemnify and hold harmless any Company Indemnitee for any Liabilities which are due to actual
fraud or willful misconduct of such Company Indemnitee.
(a) Rights of Company Indemnitee. Reasonable expenses incurred by a Company
Indemnitee in defending any claim, demand, action, suit or proceeding subject to this
Section 6.1 shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by the Company
of an undertaking by the Company by or on behalf of such Company Indemnitee to repay such
amounts if ultimately determined that such Company Indemnitee is not entitled to be
indemnified as authorized in this Section 6.1. The indemnification provided by
this Section 6.1 shall inure solely to the benefit of the Company Indemnitee and
his heirs, successors, assigns and administrators and shall be deemed to create any rights
for the benefit of any other Persons.
6.2 Indemnification by the Members. Each Member shall indemnify and hold harmless the
Company, the other Members and their respective Management Committee representatives and alternates
and the officers of the Company (each individually, a Member Indemnitee) for any and all
Liabilities that result solely from the actual fraud or willful misconduct of such Member, its
Management Committee representatives and alternates or any officer of the Company employed by such
Member or its Affiliates.
6.3 Defense of Action. Promptly after receipt by a Company Indemnitee or a Member
Indemnitee (either an Indemnified Party) of a notice of any pending or threatened claim,
demand action, suit, proceeding or investigation made or instituted by a Person other than another
Indemnified Party (a Third Party Action), such Indemnified Party shall, if a claim in
respect thereof is to be made by such Indemnified Party against a Person providing indemnification
pursuant to Sections 6.1 or 6.2 (Indemnifying Party), give notice thereof
to the Indemnifying Party. The Indemnifying Party, at its own expense may elect to assume the
defense of any such Third Party Action through its own counsel on behalf of the Indemnified Party
(with full right of subrogation to the Indemnified Partys rights and defenses). The Indemnified
Party may employ separate counsel in any such Third Party Action and participate in the defense
thereof; but the fees and expenses of such counsel shall be at the expense of the Indemnified Party
unless the Indemnified Party shall have been advised by its counsel that there may be one or more
legal defenses available to it which are different from or additional to those available to this
Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the
defense of such Third Party Action on behalf of the Indemnified Party), it being understood,
however, that the Indemnifying Party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for the Indemnified Parties, and such
fees shall be designated in writing by the Indemnified Parties. All fees and expenses for any such
separate counsel shall be paid
21
periodically as incurred. The Indemnifying Party shall not be liable for any settlement of
any such Third Party Action effected without its consent unless the Indemnifying Party shall elect
in writing not to assume the defense thereof or fails to prosecute diligently such defense and
fails after written notice from the Indemnified Party to promptly remedy the same, in which case,
the Indemnified Party without waiving any rights to indemnification hereunder may defend such Third
Party Action and enter into any good faith settlement thereof without prior written consent from
the Indemnifying Party. The Indemnifying Party shall not, without the prior written consent of the
Indemnified Party, effect any settlement of any such Third Party Action unless such settlement
includes an unconditional release of the Indemnified Party from all Liabilities that are the
subject of such Third Party Action. The Members agree to cooperate in any defense or settlement of
any such Third Party Action and to give each other reasonable access to all information relevant
thereto. The Members will similarly cooperate in the prosecution of any claim or lawsuit against
any third party. If, after the Indemnifying Party elects to assume the defense of a Third Party
Action, it is determined pursuant to the Dispute Resolution procedures described in Section
12.11 that the Indemnified Party is not entitled to indemnification with respect thereto, the
Indemnifying Party shall discontinue the defense thereof, and if any fees or expenses for separate
counsel to represent the Indemnified Party were paid by the Indemnifying Party, the Indemnified
Party shall promptly reimburse the Indemnifying Party for the full amount thereof.
6.4 Limited Liability of Members. No Member shall be personally liable for any debts,
liabilities or obligations of the Company, provided that each Member shall be responsible (i) for
the making of any Capital Contribution required to be made to the Company by such Member pursuant
to the terms hereof and (ii) for the amount of any distribution made to such Member that must be
returned to the Company pursuant to the Delaware Act.
ARTICLE 7
OPERATION OF COMPANY
7.1 Operator. Subject to this Article 7, the Members agree to appoint the
Midstream Member as the initial operator of the Company (the Operator) and Midstream
Member accepts such appointment and agrees to act in such capacity. From time to time, the
Management Committee may appoint a successor operator of the Company. The Operator shall be
responsible for the day-to-day operation, maintenance and repair of the Company Assets and the
managerial and administrative duties relating thereto. Subject to Section 5.4 and item
10 on Schedule 5.4, the Operator, in its sole discretion, may subcontract with another
Person, including an Affiliate, to perform the activities required to comply with the
responsibilities as operator hereunder; provided any such subcontract shall not relieve the
Operator of such responsibilities.
7.2 Expenses. The Operator shall be reimbursed on a monthly basis, or such other
basis as the Operator may determine, for (a) all direct and indirect costs and expenses it incurs
or payments it makes on behalf of the Company (including salary, bonus, incentive compensation and
other amounts paid to any Person including Affiliates
22
of the Operator to perform services for the Company or for the Operator in the discharge of
its duties in such capacity), and (b) all other costs and expenses allocable to the Company or
otherwise incurred by the Operator in connection with operating the Companys business (including
the Companys allocable share of general and administrative costs and expenses (G&A) borne by the
Operator and its Affiliates). The Operator shall maintain or cause to be maintained accurate
records of such costs and expenses, and upon written request, the Operator shall permit a Member to
inspect, or shall provide such requesting Member with a copy of such records. The amount for which
the Operator shall be entitled to reimbursement from the Company for G&A shall be as follows: (a)
for calendar year 2007, $8,012,000 (prorated for calendar year 2007 based on the number of days
remaining in calendar year 2007 following the date hereof), (b) for calendar year 2008, $8,012,000,
increased by the applicable annual percentage increase in the Consumer Price Index All Urban
Consumers, U.S. City Average, Not Seasonally Adjusted for the applicable year, and (c) for periods
after calendar year 2008, an amount mutually agreed upon. If the Company makes any acquisitions of
assets or businesses or the business of the Company otherwise expands prior to December 31, 2008,
then G&A shall be reasonably increased in order to account for adjustments in the nature and extent
of the general and administrative services provided by the Operator to the Company. Reimbursements
pursuant to this Section 7.2 shall be in addition to any reimbursement due the Operator as
a result of indemnification pursuant to Section 6.1.
7.3 Reimbursement for Insurance. The Company shall reimburse the Operator for all
expenses it incurs or payment it makes on behalf of the Company for insurance, including (a)
insurance coverage with respect to the Company; (b) insurance coverage with respect to claims
related to fiduciary obligations of officers, directors, and control persons of the Company as and
if applicable; and (c) insurance coverage with respect to claims under federal and state securities
laws.
7.4 Accounts. The Management Committee shall establish and maintain one or more
separate bank and investment accounts and arrangements for Company funds in the Companys name with
such financial institutions and firms it may determine. The Company may not commingle the
Companys funds with the funds of any other Person. All such accounts shall be and remain the
property of the Company and all funds shall be received, held and disbursed for the purposes
specified in this Agreement.
ARTICLE 8
TRANSFER OF INTERESTS
8.1 Restrictions on Transfer. The Members agree as follows:
(a) Consent. Subject to Sections 8.1(b) and 8.1(c) and except
as provided in Section 8.3(c), no Member may at any time sell, assign, transfer,
convey, merge, consolidate, reorganize or otherwise dispose of all or any part of such
Members interest without the express written consent of the other Members, which consent
may be granted or withheld by any such other Members in its absolute discretion; provided,
however, that subject to Sections 8.1(b) and 8.1(c),
23
and upon notice to the other Members, any Member may transfer its respective Interest
to one or more Persons (an Internal Transferee) wholly owned directly or
indirectly by the ultimate parent of such Member (an Internal Transfer) without
the consent of the other Members, and such Internal Transferee shall be admitted as a
Member.
(b) Certain Prohibited Transfers. No Member shall transfer all or any part of
its Interest if such transfer (i) (either considered alone or in the aggregate with
prior transfers by the same Member or any other Members) would result in the termination of
the Company for federal income tax purposes; (ii) would result in violation of the
Delaware Act or any other applicable Laws; or (iii) would result in a default under or
termination of an existing financial agreement to which the Company is a party or
acceleration of debt thereunder.
(c) Defaulting Members. No Defaulting Member may transfer its Interest except
(i) as expressly provided under Article 8, and (ii) with the consent of the
Nondefaulting Members.
(d) Effect of Prohibited Transfers. Any offer or purported transfer of a
Members Interest in violation of the terms of this Agreement shall be void.
8.2 Possible Additional Restrictions on Transfer. Notwithstanding anything to the
contrary contained in this Agreement, in the event of (i) the enactment (or imminent enactment) of
any legislation, (ii) the publication of any temporary or final Regulations, (iii) any ruling by
the Internal Revenue Service or (iv) any judicial decision that in any such case, in the opinion of
counsel, would result in the taxation of the Company for federal income tax purposes as a
corporation or would otherwise subject the Company to being taxed as an entity for federal income
tax purposes, this Agreement shall be deemed to impose such restrictions on the transfer of a
Members Interest as may be required, in the opinion of counsel to the Company, to prevent the
Company from being taxed as a corporation or otherwise being taxed as an entity for federal income
tax purposes, and the Members thereafter shall amend this Agreement as necessary or appropriate to
impose such restrictions.
8.3 Right of First Offer. The Members agree as follows:
(a) Initial Offer to Members. If a Member (the Selling Member)
desires to sell or otherwise transfer all or a portion of its Interest (the Marketed
Interest) other than pursuant to an Internal Transfer, such Selling Member shall
submit to each of the other Members (the Non-Selling Members) a good faith offer
(a Sale Offer), which Sale Offer shall include a form of acquisition agreement
that specifies the form and amount of consideration to be received and the other material
terms on which the Selling Member proposes to sell the Marketed Interest. Upon receipt of
a Sale Offer, a Non-Selling Member interested in purchasing all of such Marketed Interest
shall deliver written notice (a Purchase Notice) to the Selling Member within 20
days of receipt of such
24
Sale Offer (the Notice Period). Upon the expiration of such Notice Period,
the Selling Member and any Non-Selling Members that have timely delivered a Purchase Notice
to the Selling Member shall have 45 days (the Negotiation Period) to negotiate
and enter into a definitive agreement pursuant to which such Non-Selling Member(s) will
acquire the Marketed Interest. If the parties enter into a definitive agreement within
such Negotiation Period, the Non-Selling Member shall acquire the Marketed Interest
pursuant to the terms of such definitive agreement. The closing under any such definitive
agreement may occur after the expiration of such Negotiation Period. If more than one
Non-Selling Member delivers a Purchase Notice to the Selling Member, each such Non-Selling
Member shall be entitled to acquire a pro rata portion of the Marketed Interest determined
by dividing such Non-Selling Members Percentage Interest by the aggregate Percentage
Interests of all of the Non-Selling Members that delivered a Purchase Notice.
(b) Negotiation with Third Party. If (i) no Non-Selling Member delivers a
Purchase Notice to the Selling Member prior to the expiration of the Notice Period, (ii)
the Non-Selling Member(s) and the Selling Member are unable to enter into a definitive
agreement prior to the expiration of the Negotiation Period, or (iii) a definitive
agreement is timely entered into but is subsequently terminated prior to closing, then the
Selling Member shall have 120 days to market, offer, negotiate and consummate the sale of
the Marketed Interest to a third party; provided, however, the Selling Member may not
consummate any such sale to a third party unless (i) the acquisition consideration to be
paid by such third party is at least equal in value to the consideration set forth in the
Sale Offer and (ii) the other terms and provisions of such sale are not materially more
favorable to such third party than the terms and provisions contained in the Sale Offer.
If the Selling Member is unable to consummate the sale of the Marketed Interest to a third
party within in the 120-day period referred to in the immediately preceding sentence, such
Selling Member must make another Sale Offer to each of the Non-Selling Members, as provided
in Section 8.3(a), and otherwise comply with the provisions of this Section
8.3 in order to sell such Marketed Interest.
(c) Applicability of Transfer Restrictions. All transfers pursuant to this
Section 8.3 must comply with the restrictions on transfers set forth in Sections
8.1 and 8.2, except that a transfer to a third party after compliance with this
Section 8.3 shall not require the consent of the Non-Selling Members and the
restriction in Section 8.1(b)(i) shall not apply.
8.4 Substituted Members. As of the effectiveness of any transfer of an Interest
permitted under this Agreement, (i) any transferee acquiring the Interest of a Member shall be
deemed admitted as a substituted Member with respect to the Interest transferred, and (ii) such
substituted Member shall be entitled to the rights and powers and subject to the restrictions and
liabilities of the transferring Member with respect to the Interest so acquired. No purported
transfer of an Interest in violation of the terms of this Agreement (including any transfer
occurring by operation of Law) shall vest the
25
purported transferee with any rights, powers or privileges hereunder, and no such purported
transferee shall be deemed a Member hereunder for any purposes or have any right to vote or consent
with respect to Company matters, to inspect Company records, to maintain derivative proceedings, to
maintain any action for an accounting or to exercise any other rights of a Member hereunder or
under the Delaware Act.
8.5 Documentation; Validity of Transfer. No purported transfer of a Members Interest
shall be effective as to the Company or the other Members unless and until the applicable
provisions of Sections 8.1, 8.2 and 8.3 have been satisfied and such other
Members have received a document in a form acceptable to such other Members executed by both the
transferring Member (or its legal representative) and the transferee. Such document shall include:
(i) the notice address of the transferee and such transferees express agreement to be bound by all
the terms and conditions of this Agreement with respect to the Interest being transferred; (ii) the
Interests of the transferring Member and the transferee after the transfer; and (iii)
representations and warranties from both the transferring Member and the transferee that the
transfer was made in accordance with all applicable Laws (including state and federal securities
Laws) and the terms and conditions of this Agreement. Each transfer shall be effective against the
Company and the other Members as of the first Business Day of the calendar month immediately
succeeding the Companys receipt of the document required by this Section 8.5, and the
applicable requirements of Section 8.1, 8.2 and 8.3 have been met.
8.6 Covenant Not to Withdraw or Dissolve.
(a) Notwithstanding any provision of the Delaware Act, each Member hereby agrees that
it has entered into this Agreement based on the expectation that all Members will continue
as Members and carry out the duties and obligations undertaken by them hereunder. Except
as otherwise expressly required or permitted hereby, each Member hereunder covenants and
agrees not (i) to take any action to file a certificate of dissolution or its equivalent
with respect to itself, (ii) take any action that would cause a Bankruptcy of such Member,
(iii) withdraw or attempt to withdraw from the Company, expect as otherwise expressly
permitted by this Agreement or the Delaware Act, (iv) exercise any power under the Delaware
Act to dissolve the Company, (v) transfer all or any portion of its Interest, except as
expressly provided herein, or (vi) demand a return of such Members contributions or
profits (or a bond or other security for the return of such contribution or profits), in
each case without the consent of the other Members.
(b) Prior to any Member causing or permitting an interest in itself to be transferred
such that, after the transfer, the Company would be considered to have terminated within
the meaning of section 708 of the Code Section 708 Termination, the transferring
Member or its designee must provide written notice and offer to pay to each other Member
prior to the transfer in cash the amount (the Make-Whole Amount) necessary to
hold that other Member harmless against any deferral of state or federal income tax
depreciation or other increase in
26
liability for such tax (including any change in the present value of such liability)
that such Section 708 Termination would cause. Any such payment shall be due and payable
immediately upon the consummation of such transfer. For purposes of calculating the
Make-Whole Amount, such other Member(s) will be treated as if they are corporations for
federal and state income tax purposes. In the case of any transfer to which this
Section 8.6(b) applies, the Make-Whole Amount for each Member entitled to be paid
that amount will be computed on a net present value basis using: (i) the Agreed Rate in
effect on the date of payment and (ii) the highest marginal applicable state and federal
corporate income tax rates for the year of payment. Using those same highest marginal
rates, the amount that is determined pursuant to the preceding sentence will be grossed up
such that the increased amount reduced by the state and federal income tax that are deemed
paid by reason of the receipt thereof is equal to the amount that is determined pursuant to
the preceding sentence. If the applicable state income tax is deductible for federal
income tax purposes, effect will be given to that deduction in calculating the Make-Whole
Amounts.
ARTICLE 9
DEFAULT
9.1 Events of Default. If any of the following events occur:
(a) the Bankruptcy, insolvency, dissolution, liquidation, death, retirement,
resignation, termination, expulsion of a Member or the occurrence of any other event under
the Delaware Act which terminates the continued membership of a Member in the Company;
(b) all or any part of the Interest of Member is seized by a creditor of such Member,
and the same is not released from seizure or bonded out within 30 days from the date of the
notice of seizure;
(c) a Member (i) fails to provide any Capital Contribution request by a Member
pursuant to Section 5.4(c) or as otherwise required by Article 3, (ii)
fails to indemnify or reimburse the other Members for the liabilities and obligations as
set forth in this Agreement, or (iii) fails to perform or fulfill when due any other
material financial or monetary obligation imposed on such Member in this Agreement and, in
each case, such failure continues for 15 days or such shorter period as may be specified
for a Default under such agreement relating to borrowed money (each of the foregoing, a
Monetary Default);
(d) a Member Defaults or otherwise fails to perform or fulfill any material covenant,
provision or obligation (other than financial or monetary obligations, which are covered in
Section 9.1(c)) under this Agreement or any agreement relating to borrowed money to
which the Company is a party and such failure continues for 30 days or such shorter period
as may be specified for a Default under such agreement relating to borrowed money; or
27
(e) a Member transfers or attempts to transfer all or any portion of its Interest in
the Company other than in accordance with the terms of this Agreement;
then a Default hereunder shall be deemed to have occurred. The Member with respect to
which one or more events of Default has occurred shall be referred to as the Defaulting
Member, and the other Member shall be referred to as the Nondefaulting Member.
9.2 Consequence of a Default. The Members agree that upon the occurrence of a
Default, the rights of the Nondefaulting Member and Defaulting Member shall be as follows:
(a) Suspension of Certain Rights Upon Monetary Default. Notwithstanding
anything in this Agreement to the contrary, no distribution shall be made to any Defaulting
Member who is in Monetary Default, and the voting rights under this Agreement of any
Defaulting Member who is in Monetary Default shall be transferred to the Nondefaulting
Member. So long as any Monetary Default is continuing, the Defaulting Member assigns to
the Nondefaulting Member (i) its rights to receive any and all distributions under this
Agreement, and such distributions shall be payable to the Nondefaulting Member as
reimbursements for losses, damages, costs and expense resulting directly or indirectly from
such Monetary Default and (ii) its voting rights under this Agreement. If the Defaulting
Member shall dispute whether an event of Default has occurred, or the amount of the loss,
damage, cost or expense incurred by the Nondefaulting Member as a consequence of a Monetary
Default, the matter shall be submitted promptly to the dispute resolution procedure
provided for in Section 12.11 hereof.
(b) Options of Nondefaulting Member Upon Any Event of Default. The
Nondefaulting Member may, but is not obligated to, take one or more of the following
actions upon the occurrence of a Default:
(i) cure the Default (including, if applicable, by making a cover payment) and cause
the cost of such cure to be charged against a special loan account established for the
Defaulting Member until the entire amount of such costs plus interest on the unpaid balance
in accordance with Section 3.2 shall have been paid or reimbursed to the
Nondefaulting Member from any subsequent distributions made pursuant to this Agreement to
which the Defaulting Member would otherwise have been entitled, which amounts shall be paid
first as interest and then principal, until the cost is paid in full; or
(ii) exercise any other rights and remedies available at law or in equity, subject to
Section 12.11.
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ARTICLE 10
DISSOLUTION AND LIQUIDATION
10.1 Dissolution. The Company shall be dissolved upon the earliest to occur of the
following:
(a) all or substantially all of the Companys assets and properties have been sold and
reduced to cash;
(b) the written consent of each Member; or
(c) entry of a decree of judicial dissolution of the Company under Section 18-802 of
the Delaware Act.
The Members expressly recognize the right of the Company to continue in existence upon the
occurrence of a Default specified in Section 9.1(a) unless the Nondefaulting Members elect
to dissolve the Company pursuant to this Section 10.1.
10.2 Liquidation. The Members agree as follows:
(a) Procedures. Upon dissolution of the Company, the Management Committee, or
if there are no remaining Management Committee representatives, such Person as is
designated by the Members (the remaining Management Committee or such Person being herein
refereed to as the Liquidator) shall proceed to wind up the business and affairs
of the Company in accordance with the terms hereof and the requirements of the Delaware
Act. A reasonable amount of time shall be allowed for the period of winding up in light of
prevailing market conditions and so as to avoid undue loss in connection with any sale of
Company assets. This Agreement shall remain in full force and effect during the period of
winding up.
(b) Distributions. In connection with the winding up of the Company, the
Company Assets or proceeds thereof shall be distributed as follows:
(i) To creditors, including Members who are creditors, to the extent otherwise
permitted by Law, in satisfaction of the liabilities of the Company (whether by payment or
the making of reasonable provision for the payment thereof) other than liabilities for
which reasonable provision for payment has been make and liabilities to Members and former
Members under sections 18-601 and 18-604 of the Delaware Act;
(ii) To Members and former Members in satisfaction of liabilities for distributions
under sections 18-601 and 18-604 of the Delaware Act; and
29
(iii) all remaining Company Assets shall be distributed to the Members as follows:
(A) the Liquidator may sell any or all Company Assets to any Person, including
to one or more Members (other than any Member in Default at the time of
dissolution), and any resulting gain or loss from each sale shall be computed and
allocated to the Capital Accounts of the Members in accordance with Article
4;
(B) with respect to all Company Assets that have not been sold, the fair
market value of such Company Assets (as determined by the Liquidator using any
method of valuation as it, using its best judgment, deems reasonable) shall be
determined and the Capital Accounts of the Members shall be adjusted in accordance
with Article 4 to reflect the manner in which the unrealized income, gain,
loss, and deduction inherent in such Company Assets that have not been reflected in
the Capital Accounts previously would be allocated between the Members if there
were a taxable disposition of such Company Assets for their fair market value on
the date of distribution;
(C) Company Assets shall be distributed between the Members ratably in
proportion to each Members positive Capital Account balances, as determined after
taking into account all Capital Account adjustments for the taxable year of the
Company during which the liquidation of the Company occurs (other than those made
by reason of this clause (C)); and in each case, those distributions shall be made
by the end of the taxable year of the Company during which the liquidation of the
Company occurs (or, if later, 90 days after the date of the liquidation); and
(D) All distributions in kind to the Members shall be made subject to the
liability of each distributee for costs, expenses and liabilities theretofore
incurred or for which the Company has committed prior to the date of termination
and those costs, expenses and liabilities shall be allocated to the distributee
pursuant to this Section 10.2(b)(iii). This distribution of Company Assets
to a Member in accordance with the provisions of this Section 10.2(b)(iii)
constitutes a complete return to the Member of its Capital Contributions and a
complete distribution to the Member of its Interest in and to all the Company
Assets.
(c) Capital Account Deficits; Termination. To the extent that any Member has
a deficit in its Capital Account, upon dissolution of the Company, such deficit shall not
be an asset of the Company and such Members shall not be obligated to contribute any
amounts to the Company to bring the balance of such Members Capital Account to zero.
Following the completion of the winding up of the affairs of the Company and the
distribution of Company Assets, the Company shall be deemed terminated and the Liquidator
shall file a certificate of
30
cancellation in the Office of the Secretary of State of Delaware as required by the
Delaware Act.
ARTICLE 11
FINANCIAL MATTERS
11.1 Books and Records. The Company shall maintain or cause to be maintained accurate
and complete books and records, on the accrual basis, in accordance with GAAP (which, having been
adopted, shall not be changed without the prior written consent of the Members), showing all costs,
expenditures, sales, receipts, assets, liabilities, profits and losses and all other records
necessary, convenient or incidental to recording the Companys business and affairs; provided,
however, that the Members Capital Accounts shall be maintained in accordance with Article
3, and the books and records will include sufficient information to identify capital
expenditures split between growth and maintenance capital (maintenance capital defined as cash
expenditures which add to or improve capital assets owned or acquired or construct new capital
assets if such expenditures are made to maintain, including over the long term, the operating
capacity or revenues). All of such books and records of the Company shall be open to inspection by
each Member or its designated representative at the inspecting Members expense at a reasonable
time during business hours and shall be audited every year by a joint audit team consisting of
representatives from each Member. Each Member shall be responsible for all costs incurred by or
associated with its respective representatives on such joint audit team.
11.2 Financial Reports; Budget.
(a) No later than 25 days following the last day of each month, the Company shall
cause each Member to be furnished with an unaudited balance sheet and income statement as
of the end of such month, prepared in accordance with normal month-end closing procedures.
No later than 25 days following the last day of each calendar quarter, the Company shall
cause each Member to be furnished with a balance sheet, an income statement and a statement
of cash flows for, or as of the end of such calendar quarter. The Management Committee
shall cause each Member to be furnished with audited financial statements no later than 60
days following the last day of each fiscal year, including a balance sheet, an income
statement, a statement of cash flows, and a statement of changes in each Members GAAP
Capital Account as of the end of the immediately preceding Fiscal Year. The Management
Committee also may cause to be prepared or delivered such other reports as it may deem in
its sole judgment, appropriate. The Company shall bear the costs of the preparation of the
reports and financial statements referred to in this Section 11.2(a).
(b) Upon request of a Member, the Company will prepare and deliver to any such Member
or its Parent all of such additional financial statements, notes thereto and additional
financial information not prepared pursuant to Section 11.2(a) above as may be
required in order for such Member or Parent to comply
31
with its reporting requirements under (i) the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, (ii) the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder and (iii) any national
securities exchange or automated quotation system, in each case, on a timely basis. All of
such financial statements must be prepared in accordance with GAAP and, upon the request of
a Member, be audited or reviewed by independent public accountants. The requesting Member
shall bear the incremental costs of the preparation of the reports and financial statements
for and by the independent public accountants.
(c) Prior to the beginning of each fiscal year, the Company shall prepare and submit
to the Management Committee for approval by unanimous vote a business plan for the upcoming
fiscal year, including capital and operating expense budgets and operating income
projections; provided, that the unanimous vote of the Management Committee shall not be
required for the Company with respect to items not covered by such business plan unless
otherwise required by Schedule 5.4.
11.3 Accounts. The Company shall establish and maintain one or more separate bank and
investment accounts and arrangements for Company funds in the Companys name with such financial
institutions and firms as the Management Committee may determine. The Company may not commingle
the Companys funds with the funds of any other Person. All such accounts shall be and remain the
property of the Company and all funds received, held and disbursed for the purposes specified in
this Agreement.
11.4 Tax Matters. The Members agree as follows:
(a) Tax Matters Partner. The Midstream Member shall be designated as the
Tax Matters Partner pursuant to section 6231(a)(7) of the Code and the
Regulations promulgated thereunder. The Tax Matters Partner shall be responsible for all
tax compliance and audit functions related to federal, state and local tax returns of the
Company. The Tax Matters Partner is specifically directed and authorized to take whatever
steps such Member, in its discretion, deems necessary or desirable to perfect such
designation, including filing any forms or documents with the Internal Revenue Service and
taking such other action as may be from time to time required. The Tax Matters Partner
shall not be liable to the Company or the Members for act or omission taken or suffered by
it in its capacity as Tax Matters Partner in good faith in the belief that such act or
omission is in accordance with the directions of the Management Committee; provided that
such act or omission is not in willful violation of this Agreement and does not constitute
fraud or a willful violation of law.
(b) Tax Information. Upon written request of the Tax Matters Partner, the
Company and each Member shall furnish to the Tax Matters Partner, all pertinent information
in its possession relating to the Company operations that is
32
necessary to enable the Tax Matters Partner to file all federal, state and local tax
returns of the Company in a manner to meet all applicable tax filing deadlines.
(c) Tax Elections. The Company shall make the following elections on the
appropriate tax returns:
|
(i) |
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to adopt the accrual method of accounting; |
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(ii) |
|
an election pursuant to section 754 of the Code; and |
|
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(iii) |
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any other election that a Majority may deem appropriate. |
It is the expressed intention of the Members hereunder to be treated as a partnership for
federal and state tax purposes. Neither the Company nor any Member may make an election
for the Company to be excluded from the application of the provisions of subchapter K of
chapter 1 of the subtitle A of the Code or any similar provisions of applicable state law,
and no provision of this Agreement shall be construed to sanction or approve such an
election.
(d) Notices. The Tax Matters Partner shall take such action as may be
necessary to cause each Member to become a notice partner within the meaning of section
6223 of the Code and shall inform each Member of all significant matters that may come to
its attention in its capacity as Tax Matters Partner by giving notice thereof on or before
the tenth Business Day after becoming aware thereof and, within that time, shall forward to
each Member copies of all significant written communications it may receive in that
capacity. The Tax Matters Partner may not take any action contemplated by sections 6222
and 6232 of the Code without the consent of a Majority.
(e) Filing of Returns. The Tax Matters Partner shall file all tax returns in
a timely manner, provide all Members, upon request, access to accounting and tax
information and schedules as shall be necessary for the preparation of such Member of its
income tax returns and such Members tax information reporting requirements, provide all
Members with a draft of the return for their review and comment and provide all Members
with a final return for the preparation for their federal and state returns in a manner to
meet all applicable tax filing deadlines.
ARTICLE 12
MISCELLANEOUS
12.1 Notices. All notices, consents, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or delivered on the date
of receipt if (a) delivered personally; (b) telecopied or telexed with transmission confirmation;
(c) mailed by registered or certified mail return receipt request; or (d) delivered by a recognized
commercial courier to the Member as
33
follows (or such other address as any Member shall have last designated by written notice to
the other Members):
If to the Company, notices shall be made to Midstream Member so long as it remains the
Operator (and then to the successor Operator):
DCP East Texas Holdings, LLC
370 17th Street, Suite 2500
Denver, Colorado 80202
Fax: 303-605-2226
Phone: 303-595-1630
Attention: Group Vice President and General Counsel
If to the Midstream Member:
DCP East Texas Holdings, LLC
370 17th Street, Suite 2500
Denver, Colorado 80202
Fax: 303-605-2226
Phone: 303-595-1630
Attention: Group Vice President and General Counsel
If to the MLP Member:
DCP Midstream Partners, LP
370 17th Street, Suite 2775
Denver, Colorado 80202
Telephone: (303) 633-2900
Facsimile: (303) 633-2921
Attention: President; and with a copy to General Counsel
12.2 Amendment. This Agreement, including this Section 12.2 and the Schedules
hereto, shall not be amended or modified except by an instrument in writing signed by or on behalf
of all of the Members.
12.3 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the Laws of the State of Delaware as applied to contracts made and performed within
the State of Delaware, without regard to principles of conflict of Laws.
12.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Members and their respective successors and permitted assigns.
12.5 No Third Party Rights. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights in any Person or entity not party to this Agreement,
except (i) the Company Indemnitees and Member Indemnitees are third
34
party beneficiaries to Article 6 of this Agreement and their rights are subject to the
terms of such Article 6 and (ii) as provided in Section 11.2(b).
12.6 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument.
12.7 Invalidity. If any of the provisions of this Agreement, including the Schedules,
is held invalid or unenforceable, such invalidity or unenforceability shall not affect in any way
the validity or enforceability of any other provision of this Agreement. If any provision of this
Agreement is held invalid or unenforceable, the Members shall attempt to agree on a valid or
enforceable provision which shall be a reasonable substitute for such invalid or unenforceable
provision in light of the tenor of this Agreement and, on so agreeing, shall incorporate such
substitute provision in this Agreement.
12.8 Entire Agreement. This Agreement, including the Schedules, contains the entire
agreement between the Members hereto with respect to the subject matter hereof and all prior or
contemporaneous understandings and agreements shall merge herein. There are no additional terms,
whether consistent or inconsistent, oral or written, which are intended to be part of the Members
understandings which have not been incorporated into this Agreement or the Schedules.
12.9 Expenses. Except as the Members may otherwise agree or as otherwise provided
herein, each Member shall bear its respective fees, costs and expenses in connection with this
Agreement and the transactions contemplated hereby.
12.10 Waiver. No waiver by any Member, whether express or implied, of any right under
any provision of this Agreement shall constitute a waiver of such Members right at any other time
or a waiver of such Members rights under any other provision of this Agreement unless it is made
in writing and signed by the President or a Vice President of the Member waiving the condition. No
failure by any Member hereto to take any action with respect to any breach of this Agreement or
Default by another Member shall constitute a waiver for the former Members right to enforce any
provision of this Agreement or to take action with respect to such breach or Default or any
subsequent breach or Default by such later Member.
12.11 Dispute Resolution and Arbitration.
(a) Negotiation. In the event of any Arbitral Dispute, the Members shall promptly
seek to resolve any such Arbitral Dispute by negotiations between senior executives of the Members
who have authority to settle the Arbitral Dispute. When a Member believes there is an Arbitral
Dispute under this Agreement that Member will give the other Member written notice of the Arbitral
Dispute. Within 15 days after receipt of such notice, the receiving Member shall submit a written
response. Both the notice and response shall include (i) a statement of each Members position and
a summary of the evidence and arguments supporting such position, and (ii) the name, title,
35
fax number, and telephone number of the executive or executives who will represent that
Member. If the Arbitral Dispute involves a claim arising out of the actions of any Person not a
Member or an Affiliate, or an employee or agent of a Member or an Affiliate for purposes of this
Agreement, the receiving Member shall have such additional time as necessary, not to exceed an
additional 30 days, to investigate the Arbitral Dispute before submitting a written response. The
executives shall meet at a mutually acceptable time and place within 15 days after the date of the
response and thereafter as often as they reasonably deem necessary to exchange relevant information
and to attempt to resolve the Arbitral Dispute. If one of the executives intends to be accompanied
at a meeting by an attorney, the other executives shall be given at least 5 Business Days notice
of such intention and may also be accompanied by an attorney.
(b) Failure to Resolve. If the Arbitral Dispute has not been resolved within 60 days
after the date of the response given pursuant to Section 12.11(a) above, or such additional
time, if any, that the Members mutually agree to in writing, or if a Member receiving such notice
denies the applicability of the provisions of Section 12.11(a) or otherwise refuses to
participate under the provisions of Section 12.11(a), either Member may initiate binding
arbitration pursuant to the provisions of Section 12.11(c) below.
(c) Arbitration. Any Arbitral Disputes not settled pursuant to the foregoing
provisions shall be resolved through the use of binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (Arbitration Rules),
as supplemented to the extent necessary to determine any procedural appeal questions by the Federal
Arbitration Act (Title 9 of the United States Code) and in accordance with the following
provisions:
(i) If there is any inconsistency between this Section 12.11(c) and the Arbitration
Rules or the Federal Arbitration Act, the terms of this Section 12.11(c) will control the
rights and obligations of the Members.
(ii) Arbitration shall be initiated by a Member serving written notice, via certified mail, on
the other Member that the first Member elects to refer the Arbitral Dispute to binding arbitration
before a neutral panel of 3 arbitrators having expertise in the matters in controversy, along with
a statement of the matter in controversy. Within 15 days after receipt of such demand for
arbitration, the receiving Member shall submit its response to the other Member along with a
statement of any further matters in controversy. The Members will then have 15 days to submit
responses concerning any additional matters in controversy identified by the receiving Member. If
the Members are not able to agree on three arbitrators within 30 days of such 15 day period, either
Member may request the Chief U.S. District Court Judge for the District of Colorado, or such other
person designated by such judge, to select one or more arbitrators as soon as possible. If the
Judge declines to appoint an arbitrator, appointment shall be made, upon application of either
Member, pursuant to the Commercial Arbitration Rules of the American Arbitration Association. If
any arbitrator refuses or fails to fulfill his or her duties hereunder, such arbitrator shall be
replaced through the foregoing procedures.
36
(iii) The Members each agree to submit to the arbitrators its respective desired outcome and
request for award, together with any supporting data that was used in developing its outcome and
request, no later than 30 days following the selection of the arbitrators. The arbitrators shall
be required to select one Members desired outcome and requested award and the arbitrators shall
have no right or authority to alter the desired outcome and requested award selected.
(iv) The hearing will be conducted in Denver, Colorado, no later than 30 days after the
Members have submitted their desired outcomes and requests for award to the arbitrators. At the
hearing the Members shall present such evidence and witnesses as they may choose, with or without
counsel. The Members and the arbitrators should proceed diligently and in good faith in order that
the award may be made as promptly as possible.
(v) Except as provided in the Federal Arbitration Act, the decision of the arbitrators will be
binding on and non-appealable by the Members. Any such decision may be filed in any court of
competent jurisdiction and may be enforced by any Member as a final judgment in such court.
(vi) The arbitrators shall have no right or authority to grant or award exemplary, punitive,
remote, speculative, consequential, special or incidental damages.
(vii) Pre-hearing discovery shall be limited to a reasonable exchange of documents between the
Members, within the maximum number of documents specified by the arbitrators, and shall not include
depositions of any Person nor the use of subpoenas to compel testimony. The arbitrators may take a
Members cooperation or lack of cooperation in furnishing information to the arbitrators and the
other Member into account in reaching their decision. Except as provided within this subsection,
the Federal Rules of Civil Procedure, as modified or supplemented by the local rules of civil
procedure for the U.S. District Court of Colorado, shall apply in the arbitration.
(viii) Adherence to formal rules of evidence shall not be required. The arbitrators shall
consider any evidence and testimony that they determine to be relevant.
(ix) The Members hereby request that the arbitrators render their decision within 15 days
following conclusion of the hearing.
(x) The defenses of statute of limitations and laches shall be tolled from and after the date
a Member gives the other Member written notice of an Arbitral Dispute as provided in Section
12.11(a) above until such time as the Arbitral Dispute has been resolved pursuant to
Section 12.11(a), or an arbitration award has been entered pursuant to this Section
12.11(c).
37
(d) Recovery of Costs and Attorneys Fees. If arbitration arising out of this
Agreement is initiated by either Member, the decision of the arbitrators may include the award of
court costs, fees and expenses of such arbitration (including reasonable attorneys fees).
(e) Choice of Forum. If, despite the Members agreement to submit any Arbitral
Disputes to binding arbitration, there are any court proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby, such proceedings shall be brought and tried in,
and the Members hereby consent to the jurisdiction of, the federal or state courts situated in the
City and County of Denver, State of Colorado.
(f) Jury Waivers. THE PARTIES HEREBY WAIVE ANY AND ALL RIGHTS TO DEMAND A TRIAL BY
JURY.
(g) Settlement Proceedings. All aspects of any settlement proceedings, including
discovery, testimony and other evidence, negotiations and communications pursuant to this
Section 12.11, briefs and the award shall be held confidential by each Member and the
arbitrators, and shall be treated as compromise and settlement negotiations for the purposes of the
Federal and State Rules of Evidence.
12.12 Disclosure. Each Member is acquiring its Interest in the Company based upon its
own independent investigation, and the exercise by such Member of its rights and the performance of
its obligations under this Agreement are based upon its own investigation, analysis and expertise.
Each Members acquisition of its Interest in the Company is being made for its own account for
investment, and not with a view to the sale or distribution thereof.
12.13 Brokers and Finder. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention of any Person acting
on behalf of any Member in such manner as to give rise to any valid claim against any Member for
any brokerage or finders commission, fee or similar compensation.
12.14 Further Assurances. The Members shall provide to each other such information
with respect to the transactions contemplated hereby as may be reasonably requested and shall
execute and deliver to each other such further documents and take such further action as may be
reasonably contemplated herein.
12.15 Section Headings. The section headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect the interpretation of any provision
hereof.
12.16 Waiver of Certain Damages. Each of the Members (individually, and on behalf of
the Company) waives any right to recover any damages, including
38
consequential or punitive damages, in excess of actual damages from any other Member or the
Company in connection with a default under this Agreement.
12.17 Certificates of Interest. Upon the request of either Member, the Interests of
the Members in the Company shall be represented by Certificates (Certificates), which
shall certify the Percentage Interest held by such Member. Subject to the laws of Delaware and the
terms of this Agreement, Interests in the Company shall be transferable only upon the books of the
Company by the holders thereof, upon surrender and cancellation of certificates for such Interest
transferred, with a duly execute assignment and power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signature to such assignment and power of
transfer as the Company or its agents may reasonably require. All transfers and assignments shall
be subject to the provisions of Article 8 and the other provisions of this Agreement. The
Company may issue a new certificate in place of any certificate previously issued by it and alleged
to have been lost, stolen or destroyed.
39
IN WITNESS WHEREOF, the Members hereto have executed this Agreement to be effective as of the date
first written herein.
|
|
|
|
|
|
DCP MIDSTREAM, LLC
|
|
|
By: |
/s/ Brian S. Frederick
|
|
|
|
Name: |
Brian S. Frederick |
|
|
|
Title: |
Vice President, Planning and Corporate
Development |
|
|
|
DCP ASSETS HOLDING, LP
|
|
|
By: |
/s/ Greg K. Smith
|
|
|
|
Name: |
Greg K. Smith |
|
|
|
Title: |
Vice President, Business Development and
Director |
|
Amended and Restated Limited Liability Company Agreement
of DCP East Texas Holdings, LLC
40
SCHEDULE 3.1
to that
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF DCP EAST TEXAS HOLDINGS, LLC
DATED JULY 1, 2007
BETWEEN
DCP MIDSTREAM, LLC
AND
DCP ASSETS HOLDING, LP
|
|
|
Member |
|
Percentage Interest |
DCP Midstream, LLC |
|
75% |
DCP Assets Holding, LP |
|
25% |
Schedule 3.1-Page 1
SCHEDULE 5.4
to that
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF DCP EAST TEXAS HOLDINGS, LLC
DATED JULY 1, 2007
BETWEEN
DCP MIDSTREAM, LLC
AND
DCP ASSETS HOLDING, LP
Pursuant to Section 5.4(b), the following is a list of matters requiring unanimous
vote of the Management Committee for approval:
1. |
|
The sale, assignment, transfer, lease or other disposition of all or any portion of the
Company Assets for consideration in excess of $20,000,000 in the aggregate. |
|
2. |
|
The purchase or other acquisition of any asset or business of, any equity interest in, or any
investment in, any Person for consideration in excess of $20,000,000 in the aggregate. |
|
3. |
|
The Company canceling, compromising, waiving, releasing or settling of any right, claim or
lawsuit for an amount in excess of $20,000,000. |
|
4. |
|
The undertaking by the Company of any capital project in excess of $20,000,000, other than
(a) reasonable capital expenditures in connection with any emergency or force majeure events
or (b) as contemplated by the capital budget prepared and approved in accordance with the
provisions of Section 11.2. |
|
5. |
|
The issuance, incurrence, guarantee or assumption of any indebtedness or letter of credit by
the Company except guaranties and letters of credit of ordinary course of business contracts,
and indebtedness and letters of credit necessary for the day-to-day operation, maintenance and
repair of the Company Assets. |
|
6. |
|
The issuance or sale of any equity interest of the Company or any option, warrant or other
security convertible into or exercisable for any equity interests of the Company. |
|
7. |
|
The redemption, repurchase or other acquisition of any equity interest of the Company. |
|
8. |
|
The Company making any distributions (whether in cash or otherwise) with respect to the
Membership Interests (except as provided in Section 4.3). |
|
9. |
|
The Company entering into, amending, terminated, canceling or renewing any material contracts
outside the ordinary course of business. |
Schedule 5.4-Page 1
10. |
|
The Company engaging in any transaction with an Affiliate of the Company; provided, that the
foregoing shall not apply to transactions or contracts in effect on the date of this
Agreement, or ordinary course of business transactions on commercially reasonable terms for
the provision of natural gas or natural gas liquids gathering, processing, treating,
compressing, storing, transporting, terminaling, trading or marketing services or for the
purchase of power, natural gas or natural gas liquids for fuel or system requirements. |
|
11. |
|
The Company merging or consolidating with another Person. |
|
12. |
|
The Company making any loan to any Person (other than extensions of credit to customers in
the ordinary course of business and inter-company loans under DCP Midstream, LLCs cash
management system). |
|
13. |
|
A call for capital contributions by the Members, except as provided in Section 5.4(c)
of the Agreement. |
|
14. |
|
Any amendment to this Agreement or the Certificate of Formation of the Company. |
|
15. |
|
Any liquidation, dissolution, recapitalization or other winding up of the Company. |
|
16. |
|
The Company making any material change in any method of accounting or accounting principles,
practices or policies, other than those required by GAAP or applicable law. |
|
17. |
|
The Company making, amending or revoking any material election with respect to taxes. |
|
18. |
|
Acquiring, commencing or conducting any activity or business that may generate income for
federal income tax purposes that may not be qualifying income (as such term is defined
pursuant to section 7704 of the Code.) |
Schedule 5.4-Page 2
exv23w1
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the registration statement on Form S-3
(No. 333-142278) and related Prospectus of DCP Midstream Partners, LP, and Form S-8 (No.
333-142271) of DCP Midstream Partners, LP of our report dated March 5, 2007, with respect to the
consolidated financial statements of Discovery Producer Services LLC, included in the Current
Report (Form 8-K) dated July 2, 2007, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Tulsa, Oklahoma
June 29, 2007
exv23w2
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Registration Statement No. 333-142278 on Form
S-3 and Registration Statement No. 333-142271 on Form S-8 of DCP Midstream Partners, LP of our
report dated June 29, 2007, (which report expresses an unqualified opinion and includes an
explanatory paragraph relating to the preparation of the combined financial statements of the East
Texas Midstream Business from the separate records maintained by DCP Midstream, LLC) relating to
the combined financial statements of the East Texas Midstream Business as of December 31, 2006 and
2005 and for the three years in the period ended December 31, 2006 appearing in this Current Report
on Form 8-K under the Securities and Exchange Act of 1934.
/s/ Deloitte & Touche LLP
Denver, Colorado
June 29, 2007
exv99w2
Exhibit 99.2
|
|
|
|
|
July 2, 2007
|
|
MEDIA AND |
|
|
|
|
INVESTOR
|
|
Karen L. |
|
|
RELATIONS
|
|
Taylor |
|
|
CONTACT: |
|
|
|
|
Phone:
|
|
303/633-2913 |
|
|
24-Hour:
|
|
303/809-9160 |
DCP MIDSTREAM PARTNERS COMPLETES $270 MILLION
ACQUISITION FROM GENERAL PARTNER
DENVER DCP Midstream Partners, LP (NYSE: DPM), or the Partnership, has completed its previously
announced acquisition of partial ownership interests in DCP East Texas Holdings, LLC and Discovery
Producer Services LLC from DCP Midstream, LLC, the owner of the Partnerships general partner, for
consideration of $270 million prior to customary purchase price adjustments. The acquisition was
effective July 1, 2007 and will be immediately accretive to the Partnerships unitholders on a
per-unit basis. The Partnership will finance the transaction with a combination of debt and
equity.
The transaction includes a 25 percent non-operated ownership interest in DCP East Texas Holdings,
LLC (East Texas). East Texas is an integrated gas gathering and processing complex located
primarily in Panola County, Texas, and is comprised of the following assets:
|
|
|
a natural gas processing complex with total processing capacity of 780 million cubic
feet per day (MMcf/d); |
|
|
|
|
approximately 900 miles of gas gathering pipelines with over 1,500 receipt points and
over 25,000 horsepower of compression; and |
|
|
|
|
the Carthage Hub, with an aggregate delivery capacity of 1.5 billion cubic feet per day,
which delivers residue gas to multiple interstate and intrastate pipelines. |
East Texas will continue to be operated by DCP Midstream, LLC.
The transaction also includes DCP Midstream, LLCs 40 percent non-operated ownership interest in
Discovery Producer Services LLC (Discovery Partnership). The Discovery Partnership, operated by
the Williams Companies (NYSE: WMB), offers a full
-2-
range of wellhead to market services to both onshore and offshore natural gas producers. The
assets are primarily located in the eastern Gulf of Mexico and Lafourche Parish, La., and consist
of the following:
|
|
|
270 miles of deepwater Gulf of Mexico gathering and FERC-regulated transmission
pipelines; |
|
|
|
|
the 600 MMcf/d LaRose gas processing plant; and |
|
|
|
|
the 32,000 barrel per day Paradis fractionator. |
We are excited about the continued growth of the Partnership and the opportunities that we believe
will accompany the Partnerships increasing operating footprint, said Mark Borer, president and
CEO of the Partnership. Weve closed strategic acquisitions valued in excess of $500 million
within the last eight months. We continue to execute on all aspects of our Optimize-Build-Acquire
growth strategy.
DCP Midstream Partners, LP (NYSE: DPM) is a midstream master limited partnership that gathers,
processes, transports and markets natural gas and natural gas liquids and is a leading wholesale
distributor of propane. DCP Midstream Partners, LP is managed by its general partner, DCP Midstream
GP, LLC, which is wholly owned by DCP Midstream, LLC, a joint venture between Spectra Energy and
ConocoPhillips. For more information, visit the DCP Midstream Partners, LP Web site at
http://www.dcppartners.com.
This press release may contain or incorporate by reference forward-looking statements as defined
under the federal securities laws regarding DCP Midstream Partners, LP, including projections,
estimates, forecasts, plans and objectives. Although management believes that expectations
reflected in such forward-looking statements are reasonable, no assurance can be given that such
expectations will prove to be correct. In addition, these statements are subject to certain risks,
uncertainties and other assumptions that are difficult to predict and may be beyond our control.
If one or
-more-
-3-
more of these risks or uncertainties materialize, or if underlying assumptions prove incorrect, the
Partnerships actual results may vary materially from what management anticipated, estimated,
projected or expected. Among the key risk factors that may have a direct bearing on the
Partnerships results of operations and financial condition are:
|
|
|
the level and success of natural gas drilling around our assets and our ability to
connect supplies to our gathering and processing systems in light of competition; |
|
|
|
|
our ability to grow through acquisitions, asset contributions from our parents, or
organic growth projects, and the successful integration and future performance of such
assets; |
|
|
|
|
our ability to access the debt and equity markets; |
|
|
|
|
fluctuations in oil, natural gas, propane and other NGL prices; |
|
|
|
|
our ability to purchase propane from our principal suppliers for our wholesale propane
logistics business; and |
|
|
|
|
the credit worthiness of counterparties to our transactions. |
Investors are encouraged to closely consider the disclosures and risk factors contained in the
Partnerships annual and quarterly reports filed from time to time with the Securities and Exchange
Commission. The Partnership undertakes no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future events or otherwise.
Information contained in this press release is unaudited, and is subject to change.
###
exv99w3
Exhibit 99.3
DISCOVERY PRODUCER SERVICES LLC
CONSOLIDATED FINANCIAL STATEMENTS
AS OF MARCH 31, 2007 AND DECEMBER 31, 2006 AND 2005 AND
FOR THE PERIODS ENDED MARCH 31, 2007 AND 2006 AND DECEMBER 31, 2006, 2005 AND 2004
Report of Independent Auditors
To the Management Committee of
Discovery Producer Services LLC
We have audited the accompanying consolidated balance sheets of Discovery Producer Services LLC as
of December 31, 2006 and 2005, and the related consolidated statements of income, members capital,
and cash flows for each of the three years in the period ended December 31, 2006. These financial
statements are the responsibility of the Companys management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United
States. Those standards require that we plan and perform the audit to obtain reasonable assurance
about whether the financial statements are free of material misstatement. We were not engaged to
perform an audit of the Companys internal control over financial reporting. Our audits included
consideration of internal control over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not for the purpose of expressing an
opinion on the effectiveness of the Companys internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in all material
respects, the consolidated financial position of Discovery Producer Services LLC at December 31,
2006 and 2005, and the consolidated results of its operations and its cash flows for each of the
three years in the period ended December 31, 2006, in conformity with U.S. generally accepted
accounting principles.
/s/ Ernst & Young LLP
Tulsa, Oklahoma
March 5, 2007
1
DISCOVERY PRODUCER SERVICES LLC
CONSOLIDATED BALANCE SHEETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands) |
|
|
|
March 31, |
|
|
December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2005 |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
30,934 |
|
|
$ |
37,583 |
|
|
$ |
21,378 |
|
Trade accounts receivable: |
|
|
|
|
|
|
|
|
|
|
|
|
Affiliate |
|
|
12,102 |
|
|
|
11,986 |
|
|
|
31,448 |
|
Other |
|
|
8,353 |
|
|
|
6,838 |
|
|
|
13,975 |
|
Insurance receivable |
|
|
13,161 |
|
|
|
12,623 |
|
|
|
476 |
|
Inventory |
|
|
445 |
|
|
|
576 |
|
|
|
924 |
|
Other current assets |
|
|
2,633 |
|
|
|
4,235 |
|
|
|
2,324 |
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
67,628 |
|
|
|
73,841 |
|
|
|
70,525 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted cash |
|
|
19,865 |
|
|
|
28,773 |
|
|
|
44,559 |
|
Property, plant, and equipment, net |
|
|
375,970 |
|
|
|
355,304 |
|
|
|
344,743 |
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
463,463 |
|
|
$ |
457,918 |
|
|
$ |
459,827 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND MEMBERS CAPITAL |
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable: |
|
|
|
|
|
|
|
|
|
|
|
|
Affiliate |
|
$ |
4,574 |
|
|
$ |
7,017 |
|
|
$ |
12,970 |
|
Other |
|
|
30,170 |
|
|
|
23,618 |
|
|
|
23,160 |
|
Accrued liabilities |
|
|
5,913 |
|
|
|
5,119 |
|
|
|
6,205 |
|
Other current liabilities |
|
|
5,415 |
|
|
|
4,805 |
|
|
|
2,735 |
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
46,072 |
|
|
|
40,559 |
|
|
|
45,070 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Noncurrent accrued liabilities |
|
|
3,810 |
|
|
|
3,728 |
|
|
|
1,121 |
|
Commitments and contingent liabilites (Note 7)
|
|
|
|
|
|
|
|
|
|
|
|
|
Members capital |
|
|
413,581 |
|
|
|
413,631 |
|
|
|
413,636 |
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and members capital |
|
$ |
463,463 |
|
|
$ |
457,918 |
|
|
$ |
459,827 |
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
2
DISCOVERY PRODUCER SERVICES LLC
CONSOLIDATED STATEMENTS OF INCOME
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands) |
|
|
|
Three Months Ended |
|
|
|
|
|
|
March31, |
|
|
Years Ended December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product sales: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Affiliate |
|
$ |
43,466 |
|
|
$ |
44,259 |
|
|
$ |
148,385 |
|
|
$ |
70,848 |
|
|
$ |
57,838 |
|
Third-party |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,271 |
|
|
|
1,611 |
|
Gas and condensate transportation services: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Affiliate |
|
|
173 |
|
|
|
2,641 |
|
|
|
3,835 |
|
|
|
2,104 |
|
|
|
3,966 |
|
Third-party |
|
|
3,568 |
|
|
|
3,303 |
|
|
|
14,668 |
|
|
|
13,302 |
|
|
|
12,052 |
|
Gathering and processing services: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Affiliate |
|
|
894 |
|
|
|
5,886 |
|
|
|
8,605 |
|
|
|
3,912 |
|
|
|
6,962 |
|
Third-party |
|
|
4,124 |
|
|
|
5,258 |
|
|
|
19,473 |
|
|
|
25,806 |
|
|
|
14,168 |
|
Other revenues |
|
|
256 |
|
|
|
773 |
|
|
|
2,347 |
|
|
|
2,502 |
|
|
|
3,279 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues |
|
|
52,481 |
|
|
|
62,120 |
|
|
|
197,313 |
|
|
|
122,745 |
|
|
|
99,876 |
|
Costs and expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product cost and shrink replacement: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Affiliate |
|
|
21,290 |
|
|
|
31,871 |
|
|
|
66,890 |
|
|
|
19,103 |
|
|
|
423 |
|
Third-party |
|
|
12,228 |
|
|
|
9,679 |
|
|
|
52,662 |
|
|
|
45,364 |
|
|
|
44,932 |
|
Operating and maintenance expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Affiliate |
|
|
1,321 |
|
|
|
1,110 |
|
|
|
5,276 |
|
|
|
3,739 |
|
|
|
3,098 |
|
Third-party |
|
|
5,094 |
|
|
|
3,712 |
|
|
|
17,773 |
|
|
|
6,426 |
|
|
|
14,756 |
|
Depreciation and accretion |
|
|
6,483 |
|
|
|
6,379 |
|
|
|
25,562 |
|
|
|
24,794 |
|
|
|
22,795 |
|
Taxes other than income |
|
|
316 |
|
|
|
287 |
|
|
|
1,114 |
|
|
|
1,151 |
|
|
|
1,382 |
|
General and administrative expenses affiliate |
|
|
544 |
|
|
|
690 |
|
|
|
2,150 |
|
|
|
2,053 |
|
|
|
1,424 |
|
Other (income) expense, net |
|
|
(1 |
) |
|
|
(7 |
) |
|
|
283 |
|
|
|
(33 |
) |
|
|
(54 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total costs and expenses |
|
|
47,275 |
|
|
|
53,721 |
|
|
|
171,710 |
|
|
|
102,597 |
|
|
|
88,756 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
5,206 |
|
|
|
8,399 |
|
|
|
25,603 |
|
|
|
20,148 |
|
|
|
11,120 |
|
Interest income |
|
|
(661 |
) |
|
|
(626 |
) |
|
|
(2,404 |
) |
|
|
(1,685 |
) |
|
|
(550 |
) |
Foreign exchange (gain) loss |
|
|
(216 |
) |
|
|
(427 |
) |
|
|
(2,076 |
) |
|
|
1,005 |
|
|
|
|
|
Gain on the sale of property, plant, and equipment |
|
|
(468 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before cumulative effect of change in accounting principle |
|
|
6,551 |
|
|
|
9,452 |
|
|
|
30,083 |
|
|
|
20,828 |
|
|
|
11,670 |
|
Cumulative effect of change in accounting principle |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(176 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
6,551 |
|
|
$ |
9,452 |
|
|
$ |
30,083 |
|
|
$ |
20,652 |
|
|
$ |
11,670 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
3
DISCOVERY PRODUCER SERVICES LLC
CONSOLIDATED STATEMENT OF MEMBERS CAPITAL
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Williams |
|
|
|
|
|
|
|
|
|
|
|
|
Williams |
|
|
Partners |
|
|
DCP |
|
|
Eni BB |
|
|
|
|
|
|
Energy, |
|
|
Operating |
|
|
Midstream, |
|
|
Pipelines |
|
|
|
|
|
|
L.L.C. |
|
|
L.L.C. |
|
|
LLC |
|
|
LLC |
|
|
Total |
|
|
|
(In thousands) |
|
|
Balance at December 31, 2003 |
|
$ |
189,987 |
|
|
$ |
|
|
|
$ |
126,650 |
|
|
$ |
63,338 |
|
|
$ |
379,975 |
|
Net income |
|
|
5,835 |
|
|
|
|
|
|
|
3,890 |
|
|
|
1,945 |
|
|
|
11,670 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2004 |
|
|
195,822 |
|
|
|
|
|
|
|
130,540 |
|
|
|
65,283 |
|
|
|
391,645 |
|
Contributions |
|
|
16,269 |
|
|
|
24,400 |
|
|
|
7,634 |
|
|
|
|
|
|
|
48,303 |
|
Distributions |
|
|
(30,030 |
) |
|
|
(1,280 |
) |
|
|
(15,654 |
) |
|
|
|
|
|
|
(46,964 |
) |
Net income |
|
|
8,063 |
|
|
|
4,651 |
|
|
|
6,909 |
|
|
|
1,029 |
|
|
|
20,652 |
|
Sale of Enis 16.67% interest to Williams Energy, L.L.C. |
|
|
66,312 |
|
|
|
|
|
|
|
|
|
|
|
(66,312 |
) |
|
|
|
|
Sale of Williams Energy, L.L.C.s 40% interest to Williams Partners
Operating L.L.C. |
|
|
(142,761 |
) |
|
|
142,761 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale of Williams Energy, L.L.C.s 6.67% interest to DCP Midstream, LLC |
|
|
(25,869 |
) |
|
|
|
|
|
|
25,869 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2005 |
|
|
87,806 |
|
|
|
170,532 |
|
|
|
155,298 |
|
|
|
|
|
|
|
413,636 |
|
Contributions |
|
|
800 |
|
|
|
1,600 |
|
|
|
11,109 |
|
|
|
|
|
|
|
13,509 |
|
Distributions |
|
|
(10,798 |
) |
|
|
(16,400 |
) |
|
|
(16,400 |
) |
|
|
|
|
|
|
(43,598 |
) |
Net income |
|
|
6,017 |
|
|
|
12,033 |
|
|
|
12,033 |
|
|
|
|
|
|
|
30,083 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2006 |
|
|
83,825 |
|
|
|
167,765 |
|
|
|
162,040 |
|
|
|
|
|
|
|
413,630 |
|
Contributions (unaudited) |
|
|
|
|
|
|
|
|
|
|
2,400 |
|
|
|
|
|
|
|
2,400 |
|
Distributions (unaudited) |
|
|
(1,800 |
) |
|
|
(3,600 |
) |
|
|
(3,600 |
) |
|
|
|
|
|
|
(9,000 |
) |
Net income (unaudited) |
|
|
1,311 |
|
|
|
2,620 |
|
|
|
2,620 |
|
|
|
|
|
|
|
6,551 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at March 31, 2007 (unaudited) |
|
$ |
83,336 |
|
|
$ |
166,785 |
|
|
$ |
163,460 |
|
|
$ |
|
|
|
$ |
413,581 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
4
DISCOVERY PRODUCER SERVICES LLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands) |
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
Years Ended December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
|
|
|
|
OPERATING ACTIVITIES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
6,551 |
|
|
$ |
9,452 |
|
|
$ |
30,083 |
|
|
$ |
20,652 |
|
|
$ |
11,670 |
|
Cumulative effect of change in accounting principle |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
176 |
|
|
|
|
|
Adjustments to reconcile to cash provided by operations: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and accretion |
|
|
6,483 |
|
|
|
6,379 |
|
|
|
25,562 |
|
|
|
24,794 |
|
|
|
22,795 |
|
Gain on the sale of property, plant and equipment |
|
|
(468 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash provided (used) by changes in assets and liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trade accounts receivable |
|
|
(1,631 |
) |
|
|
23,590 |
|
|
|
26,599 |
|
|
|
(35,263 |
) |
|
|
(1,658 |
) |
Insurance receivable |
|
|
(538 |
) |
|
|
(3,389 |
) |
|
|
(12,147 |
) |
|
|
(476 |
) |
|
|
|
|
Inventory |
|
|
131 |
|
|
|
57 |
|
|
|
348 |
|
|
|
(84 |
) |
|
|
(240 |
) |
Other current assets |
|
|
1,602 |
|
|
|
475 |
|
|
|
(1,911 |
) |
|
|
(1,012 |
) |
|
|
(1 |
) |
Accounts payable |
|
|
(12,533 |
) |
|
|
(19,153 |
) |
|
|
(6,062 |
) |
|
|
29,355 |
|
|
|
1,256 |
|
Accrued liabilities |
|
|
794 |
|
|
|
521 |
|
|
|
(1,086 |
) |
|
|
(7,992 |
) |
|
|
2,469 |
|
Other current liabilities |
|
|
610 |
|
|
|
583 |
|
|
|
2,070 |
|
|
|
664 |
|
|
|
(668 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
|
1,001 |
|
|
|
18,515 |
|
|
|
63,456 |
|
|
|
30,814 |
|
|
|
35,623 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INVESTING ACTIVITIES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Decrease (increase) in restricted cash |
|
|
8,908 |
|
|
|
2,700 |
|
|
|
15,786 |
|
|
|
(44,559 |
) |
|
|
|
|
Property, plant, and equipment: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures |
|
|
(27,351 |
) |
|
|
(2,546 |
) |
|
|
(33,516 |
) |
|
|
(12,906 |
) |
|
|
(46,701 |
) |
Proceeds from sale of property, plant and equipment |
|
|
751 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in accounts payable capital expenditures |
|
|
16,642 |
|
|
|
454 |
|
|
|
568 |
|
|
|
(8,532 |
) |
|
|
7,586 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided (used) by investing activities |
|
|
(1,050 |
) |
|
|
608 |
|
|
|
(17,162 |
) |
|
|
(65,997 |
) |
|
|
(39,115 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCING ACTIVITIES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Distributions to members |
|
|
(9,000 |
) |
|
|
(13,598 |
) |
|
|
(43,598 |
) |
|
|
(46,964 |
) |
|
|
|
|
Capital contributions |
|
|
2,400 |
|
|
|
7,383 |
|
|
|
13,509 |
|
|
|
48,303 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided (used) by financing activities |
|
|
(6,600 |
) |
|
|
(6,215 |
) |
|
|
(30,089 |
) |
|
|
1,339 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and cash equivalents |
|
|
(6,649 |
) |
|
|
12,908 |
|
|
|
16,205 |
|
|
|
(33,844 |
) |
|
|
(3,492 |
) |
Cash and cash equivalents at beginning of period |
|
|
37,583 |
|
|
|
21,378 |
|
|
|
21,378 |
|
|
|
55,222 |
|
|
|
58,714 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period |
|
$ |
30,934 |
|
|
$ |
34,286 |
|
|
$ |
37,583 |
|
|
$ |
21,378 |
|
|
$ |
55,222 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
5
DISCOVERY PRODUCER SERVICES LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Information as of March 31, 2007 and for the three months ended March 31, 2007 and 2006 is unaudited
Note 1. Organization and Description of Business
Our company consists of Discovery Producer Services LLC (DPS), a Delaware limited liability
company formed on June 24, 1996, and its wholly owned subsidiary, Discovery Gas Transmission LLC
(DGT), a Delaware limited liability company formed on June 24, 1996. DPS was formed for the
purpose of constructing and operating a 600 million cubic feet per day (MMcf/d) cryogenic natural
gas processing plant near Larose, Louisiana and a 32,000 barrel per day (bpd) natural gas liquids
fractionator plant near Paradis, Louisiana. DGT was formed for the purpose of constructing and
operating a natural gas pipeline from offshore deep water in the Gulf of Mexico to DPSs gas
processing plant in Larose, Louisiana. The pipeline has a design capacity of 600 MMcf/d and
consists of approximately 173 miles of pipe. DPS has since connected several laterals to the DGT
pipeline to expand its presence in the Gulf. Herein, DPS and DGT are collectively referred to in
the first person as we, us or our and sometimes as the Company.
Until April 14, 2005, we were owned 50% by Williams Energy, L.L.C. (a wholly owned subsidiary
of The Williams Companies, Inc.), 33.33% by DCP Midstream, LLC (DCP Midstream), formerly Duke
Energy Field Services, LLC and 16.67% by Eni BB Pipeline, LLC (Eni). Williams Energy, L.L.C is
our operator. Herein, The Williams Companies, Inc. and its subsidiaries are collectively referred
to as Williams.
On April 14, 2005, Williams acquired the 16.67% ownership interest in us, which was previously
held by Eni. As a result, we became 66.67% owned by Williams and 33.33% owned by DCP Midstream.
On August 22, 2005, we distributed cash of $44 million to the members based on 66.67%
ownership by Williams and 33.33% ownership by DCP Midstream.
On August 23, 2005, Williams Partners Operating LLC (a wholly owned subsidiary of Williams
Partners L.P.) (WPZ) acquired a 40% interest in us, which was previously held by Williams. As a
result, we became 40% owned by WPZ, 26.67% owned by Williams and 33.33% owned by DCP Midstream. In
connection with this acquisition, Williams, DCP Midstream and WPZ amended our limited liability
company agreement including provisions for (1) quarterly distributions of available cash, as
defined in the amended agreement and (2) pursuit of capital projects for the benefit of one or more
of our members when there is not unanimous consent.
On December 22, 2005, DCP Midstream acquired 6.67% interest in us, which was previously held
by Williams. As a result, we became 40% owned by WPZ, 20% owned by Williams and 40% owned by DCP
Midstream.
Note 2. Summary of Significant Accounting Policies
Basis of Presentation. The consolidated financial statements have been prepared based upon
accounting principles generally accepted in the United States and include the accounts of DPS and
its wholly owned subsidiary, DGT. Intercompany accounts and transactions have been eliminated. The
accompanying unaudited interim consolidated financial statements include all normal recurring
adjustments that, in the opinion of management, are necessary to present fairly our financial
position at March 31, 2007, and the results of operations and cash flows for the three months ended
March 31, 2006 and 2007.
Reclassifications. Certain prior years amounts have been reclassified to conform with the
current year presentation. Certain revenues, expenses, and liabilities for the year ended December
31, 2006 have been reclassified as affiliate transactions due to the affiliate relationship with
DCP Midstream. Capitalized labor and projects fees for 2006 were also reclassified. See Note 3.
Use of Estimates. The preparation of consolidated financial statements in conformity with
accounting principles generally accepted in the United States requires management to make estimates
and assumptions that affect the amounts reported in the consolidated financial statements and
accompanying notes. Actual results could differ from those estimates.
Estimates and assumptions used in the calculation of asset retirement obligations are, in the
opinion of management, significant to the underlying amounts included in the consolidated financial
statements. It is reasonably possible that future events or information could change those
estimates.
Cash and Cash Equivalents. Cash and cash equivalents include demand and time deposits,
certificates of deposit and other marketable securities with maturities of three months or less
when acquired.
Trade Accounts Receivable. Trade accounts receivable are carried on a gross basis, with no
discounting, less an allowance for doubtful accounts. No allowance for doubtful accounts is
recognized at the time the revenue that generates the accounts receivable is recognized. We
estimate the allowance for doubtful accounts based on existing economic conditions, the financial
condition of the customers, and the amount and age of past due accounts. Receivables are considered
past due if full payment is not received by the contractual due date. Past due accounts are
generally written off against the allowance for doubtful accounts only after all collection
attempts have been exhausted. There was no allowance for doubtful accounts at December 31, 2006 and
2005.
6
DISCOVERY PRODUCER SERVICES LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Information as of March 31, 2007 and for the three months ended March 31, 2007 and 2006 is unaudited
Note 2. Summary of Significant Accounting Policies (continued)
Insurance Receivable. Expenditures incurred for the repair of the pipeline and onshore
facilities damaged by Hurricane Katrina in 2005, which are probable of recovery when incurred, are
recorded as insurance receivable. Expenditures up to the insurance deductible and amounts
subsequently determined not to be recoverable are expensed.
Gas Imbalances. In the course of providing transportation services to customers, DGT may
receive different quantities of gas from shippers than the quantities delivered on behalf of those
shippers. This results in gas transportation imbalance receivables and payables which are recovered
or repaid in cash, based on market-based prices, or through the receipt or delivery of gas in the
future. Imbalance receivables and payables are included in Other current assets and Other current
liabilities in the Consolidated Balance Sheets. Settlement of imbalances requires agreement between
the pipelines and shippers as to allocations of volumes to specific transportation contracts and
the timing of delivery of gas based on operational conditions. In accordance with its tariff, DGT
is required to account for this imbalance (cash-out) liability/receivable and refund or invoice the
excess or deficiency when the cumulative amount exceeds $400,000. To the extent that this
difference, at any year end, is less than $400,000, such amount would carry forward and be included
in the cumulative computation of the difference evaluated at the following year end.
Inventory. Inventory includes fractionated products at our Paradis facility and is carried at
the lower of cost or market.
Restricted Cash. Restricted cash within non-current assets relates to escrow funds contributed
by our members for the construction of the Tahiti pipeline lateral expansion. The restricted cash
is classified as non-current because the funds will be used to construct a long-term asset. The
restricted cash is primarily invested in short-term money market accounts with financials
institutions.
Property, Plant, and Equipment. Property, plant, and equipment are carried at cost. We base
the carrying value of these assets on estimates, assumptions and judgments relative to capitalized
costs, useful lives and salvage values. The natural gas and natural gas liquids maintained in the
pipeline facilities necessary for their operation (line fill) are included in property, plant, and
equipment.
Depreciation of DPSs facilities and equipment is computed primarily using the straight-line
method with 25-year lives. Depreciation of DGTs facilities and equipment is computed using the
straight-line method with 15-year lives.
We record an asset and a liability equal to the present value of each expected future asset
retirement obligation (ARO). The ARO asset is depreciated in a manner consistent with the
depreciation of the underlying physical asset. We measure changes in the liability due to passage
of time by applying an interest method of allocation. This amount is recognized as an increase in
the carrying amount of the liability and as a corresponding accretion expense included in operating
income.
Revenue Recognition. Revenue for sales of products are recognized in the period of delivery
and revenues from the gathering, transportation and processing of gas are recognized in the period
the service is provided based on contractual terms and the related natural gas and liquid volumes.
DGT is subject to Federal Energy Regulatory Commission (FERC) regulations, and accordingly,
certain revenues collected may be subject to possible refunds upon final orders in pending cases.
DGT records rate refund liabilities considering regulatory proceedings by DGT and other third
parties, advice of counsel, and estimated total exposure as discounted and risk weighted, as well
as collection and other risks. There was no rate refund liabilities accrued at December 31, 2006 or
2005.
Impairment of Long-Lived Assets. We evaluate long-lived assets for impairment on an individual
asset or asset group basis when events or changes in circumstances indicates that, in our
managements judgment, the carrying value of such assets may not be recoverable. When such a
determination has been made, we compare our managements estimate of undiscounted future cash flows
attributable to the assets to the carrying value of the assets to determine whether impairment has
occurred. If an impairment of the carrying value has occurred, we determine the amount of the
impairment recognized in the financial statements by estimating the fair value of the assets and
recording a loss for the amount that the carrying value exceeds the estimated fair value.
Accounting for Repair and Maintenance Costs. We expense the cost of maintenance and repairs as
incurred. Expenditures that enhance the functionality or extend the useful lives of the assets are
capitalized and depreciated over the remaining useful life of the asset.
7
DISCOVERY PRODUCER SERVICES LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Information as of March 31, 2007 and for the three months ended March 31, 2007 and 2006 is unaudited
Note 2. Summary of Significant Accounting Policies (continued)
Income Taxes. For federal tax purposes, we have elected to be treated as a partnership with
each member being separately taxed on its ratable share of our taxable income. This election, to be
treated as a pass-through entity, also applies to our wholly owned subsidiary, DGT. Therefore, no
income taxes or deferred income taxes are reflected in the consolidated financial statements.
Foreign Currency Transactions. Transactions denominated in currencies other than the
functional currency are recorded based on exchange rates at the time such transactions arise.
Subsequent changes in exchange rates result in transaction gains or losses which are reflected in
the Consolidated Statements of Income.
Recent Accounting Standards. In January 2006, Williams adopted Statement of Financial
Accounting Standard (SFAS) No. 123, Share-Based Payment. Accordingly payroll costs directly
charged to us by Williams and general and administrative costs allocated to us by Williams (see
Note 3) include such compensation costs beginning January 1, 2006. The cost is charged to us
through specific allocations of certain employees if they directly support our operations. Our
adoption of this Statement did not have a material impact on our Consolidated Financial Statements.
In January 2006, we adopted SFAS No. 151, Inventory Costs, an Amendment of ARB No. 43,
Chapter 4. The Statement amends Accounting Research Bulletin (ARB) No. 43, Chapter 4, Inventory
Pricing, to clarify that abnormal amounts of certain costs should be recognized as current period
charges and that the allocation of overhead costs should be based on the normal capacity of the
production facility. Our adoption of this Statement did not have a material impact on our
Consolidated Financial Statements.
In January 2006, we adopted SFAS No. 153, Exchanges of Nonmonetary Assets, an amendment of
APB Opinion No. 29. The Statement amends APB Opinion No. 29, Accounting for Nonmonetary
Transactions. The guidance in APB Opinion No. 29 is based on the principle that exchanges of
nonmonetary assets should be measured based on the fair value of the assets exchanged but includes
certain exceptions to that principle. SFAS No. 153 amends APB Opinion No. 29 to eliminate the
exception for nonmonetary exchanges of similar productive assets and replaces it with a general
exception for exchanges of nonmonetary assets that do not have commercial substance. A nonmonetary
exchange has commercial substance if the future cash flows of the entity are expected to change
significantly as a result of the exchange. The impact of this Statement on our Financial
Statements was not material.
In September 2006, the Financial Accounting Standards Board (FASB) issued SFAS No. 157,
Fair Value Measurements. This Statement establishes a framework for fair value measurements in
the financial statements by providing a single definition of fair value, provides guidance on the
methods used to estimate fair value and increases disclosures about estimates of fair value. SFAS
No. 157 is effective for fiscal years beginning after November 15, 2007 and is generally applied
prospectively. We will assess the impact of this Statement on our Consolidated Financial
Statements.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets
and Financial LiabilitiesIncluding an Amendment of FASB Statement No. 115. SFAS No. 159
establishes a fair value option permitting entities to elect the option to measure eligible
financial instruments and certain other items at fair value on specified election dates.
Unrealized gains and losses on items for which the fair value option has been elected will be
reported in earnings. The fair value option may be applied on an instrument-by-instrument basis,
with a few exceptions, is irrevocable and is applied only to entire instruments and not to portions
of instruments. SFAS No. 159 is effective as of the beginning of the first fiscal year beginning
after November 15, 2007 and should not be applied retrospectively to fiscal years beginning prior
to the effective date, except as permitted for early adoption. We will not adopt SFAS No. 159 prior
to January 1, 2008. On the adoption date, an entity may elect the fair value option for eligible
items existing at that date and the adjustment for the initial remeasurement of those items to fair
value should be reported as a cumulative effect adjustment to the opening balance of retained
earnings. We continue to assess whether to apply the provisions of SFAS No. 159 to eligible
financial instruments in place on the adoption date and the related impact on our Consolidated
Financial Statements.
Note 3. Related Party Transactions
We have no employees. Pipeline and plant operations are performed under operation and
maintenance agreements with Williams. Under these agreements, we reimburse Williams for direct
payroll and employee benefit costs incurred on our behalf. Most costs for materials, services and
other charges are third-party charges and are invoiced directly to us. Additionally, we purchase a
portion of the natural gas from Williams to meet our fuel and shrink requirements at our processing
plant. These purchases are made at market rates at the time of purchase. These costs are included
in Operating and maintenance expenses affiliate and Product costs and shrink replacement
affiliate on the Consolidated Statements of Income. Also included in our Operating and maintenance
expenses affiliate is rental expense resulting from a 10 year leasing agreement for pipeline
capacity from Texas Eastern Transmission, LP (DCP Midstreams affiliate), as part of our Market
Expansion project which began in June 2005.
8
DISCOVERY PRODUCER SERVICES LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Information as of March 31, 2007 and for the three months ended March 31, 2007 and 2006 is unaudited
Note 3. Related Party Transactions (continued)
We pay Williams a monthly operation and management fee to cover the cost of accounting
services, computer systems and management services provided to us. This fee is presented as General
and administrative expensesaffiliate on the Consolidated Statements of Income.
We also pay Williams a project management fee to cover the cost of managing capital projects.
This fee is determined on a project by project basis and is capitalized as part of the construction
costs. A summary of the payroll costs and project fees charged to us by Williams and capitalized
are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
|
|
|
March 31, |
|
Years Ended December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
|
(In thousands) |
|
Capitalized labor |
|
$ |
60 |
|
|
$ |
103 |
|
|
$ |
373 |
|
|
$ |
115 |
|
|
$ |
288 |
|
Capitalized project fee |
|
|
609 |
|
|
|
|
|
|
|
538 |
|
|
|
351 |
|
|
|
854 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
669 |
|
|
$ |
103 |
|
|
$ |
911 |
|
|
$ |
466 |
|
|
$ |
1,142 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We have various business transactions with our members and other subsidiaries and affiliates
of our members. We sell the NGLs to which we take title and excess gas to Williams. Revenues
associated with these activities are reflected as Product sales affiliate on the Consolidated
Statements of Income. These transactions are conducted at current market prices for the products.
In 2006, we had transactions with DCP Midstreams affiliate, Texas Eastern Corporation. During
2005, we had transactions with DCP Midstreams affiliates, Texas Eastern Corporation and
ConocoPhillips Company. These transactions primarily included processing and sales of natural gas
liquids and transportation of gas and condensate. We have business transactions with Eni that
primarily include processing and transportation of gas and condensate. The following table
summarizes these related-party revenues during 2006, 2005 and 2004.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2006 |
|
2005 |
|
2004 |
|
|
|
(In thousands) |
|
Williams |
|
$ |
148,543 |
|
|
$ |
70,848 |
|
|
$ |
57,838 |
|
Texas Eastern Corporation |
|
|
12,282 |
|
|
|
2,663 |
|
|
|
|
|
Eni* |
|
|
|
|
|
|
2,830 |
|
|
|
10,928 |
|
ConocoPhillips |
|
|
|
|
|
|
523 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
160,825 |
|
|
$ |
76,864 |
|
|
$ |
68,766 |
|
|
|
|
|
|
|
|
|
|
|
Note 4. Property, Plant, and Equipment
Property, plant, and equipment consisted of the following at December 31, 2006 and 2005:
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2006 |
|
2005 |
|
|
|
(In thousands) |
|
Property, plant, and equipment: |
|
|
|
|
|
|
|
|
Construction work in progress |
|
$ |
37,259 |
|
|
$ |
5,444 |
|
Buildings |
|
|
4,434 |
|
|
|
4,406 |
|
Land and land rights |
|
|
2,491 |
|
|
|
1,530 |
|
Transportation lines |
|
|
303,283 |
|
|
|
302,252 |
|
Plant and other equipment |
|
|
200,990 |
|
|
|
198,837 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total property, plant, and equipment |
|
|
548,457 |
|
|
|
512,469 |
|
Less accumulated depreciation |
|
|
193,153 |
|
|
|
167,726 |
|
|
|
|
|
|
|
|
Net property, plant, and equipment |
|
$ |
355,304 |
|
|
$ |
344,743 |
|
|
|
|
|
|
|
|
9
DISCOVERY PRODUCER SERVICES LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Information as of March 31, 2007 and for the three months ended March 31, 2007 and 2006 is unaudited
Note 4. Property, Plant, and Equipment (continued)
Commitments for construction and acquisition of property, plant, and equipment for the Tahiti
pipeline lateral expansion are approximately $33.3 million at December 31, 2006.
Effective December 31, 2005, we adopted Financial Accounting Standards Board Interpretation
(FIN) No. 47, Accounting for Conditional Asset Retirement Obligations. This Interpretation
clarifies that an entity is required to recognize a liability for the fair value of a conditional
ARO when incurred if the liabilitys fair value can be reasonably estimated. The Interpretation
clarifies when an entity would have sufficient information to reasonably estimate the fair value of
an ARO. As required by the new standard, we reassessed the estimated remaining life of all our
assets with a conditional ARO. We recorded additional liabilities totaling $327,000 equal to the
present value of expected future asset retirement obligations at December 31, 2005. The liabilities
are slightly offset by a $151,000 increase in property, plant, and equipment, net of accumulated
depreciation, recorded as if the provisions of the Interpretation had been in effect at the date
the obligation was incurred. The net $176,000 reduction to earnings is reflected as a cumulative
effect of a change in accounting principle for the year ended 2005. If the Interpretation had been
in effect at the beginning of 2004, the impact to our income from continuing operations and net
income would have been immaterial.
Our obligations relate to an offshore platform and our onshore processing and fractionation
facilities. At the end of the useful life of each respective asset, we are legally or contractually
obligated to dismantle the offshore platform, remove the onshore facilities and related surface
equipment and restore the surface of the property.
A rollforward of our asset retirement obligation for 2006 and 2005 is presented below.
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
|
|
|
2006 |
|
2005 |
|
|
|
(In thousands) |
|
Balance at January 1 |
|
$ |
1,121 |
|
|
$ |
702 |
|
Accretion expense |
|
|
135 |
|
|
|
92 |
|
Estimate revisions |
|
|
2,472 |
|
|
|
|
|
FIN No. 47 revisions |
|
|
|
|
|
|
327 |
|
|
|
|
|
|
|
|
Balance at December 31 |
|
$ |
3,728 |
|
|
$ |
1,121 |
|
|
|
|
|
|
|
|
Note 5. Leasing Activities
We lease the land on which the Paradis fractionator plant and the Larose processing plant are
located. The initial terms of the leases are 20 years with renewal options for an additional 30
years. We entered into a ten-year leasing agreement for pipeline capacity from Texas Eastern
Transmission, LP, as part of our Market Expansion project which began in June 2005 (see Note 7).
The lease includes renewal options and options to increase capacity which would also increase
rentals. The future minimum annual rentals under these non-cancelable leases as of December 31,
2006 are payable as follows:
|
|
|
|
|
|
|
(In thousands) |
|
2007 |
|
$ |
854 |
|
2008 |
|
|
858 |
|
2009 |
|
|
858 |
|
2010 |
|
|
858 |
|
2011 |
|
|
858 |
|
Thereafter |
|
|
3,252 |
|
|
|
|
|
|
|
$ |
7,538 |
|
|
|
|
|
Total rent expense for 2006, 2005 and 2004, including a cancelable platform space lease and
month-to-month leases, was $1,383,261, $1,059,909 and $866,000, respectively.
10
DISCOVERY PRODUCER SERVICES LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Information as of March 31, 2007 and for the three months ended March 31, 2007 and 2006 is unaudited
Note 6. Financial Instruments and Concentrations of Credit Risk
Financial Instruments Fair Value
We used the following methods and assumptions to estimate the fair value of financial
instruments:
Cash and cash equivalents. The carrying amounts reported in the consolidated balance sheets
approximate fair value due to the short-term maturity of these instruments.
Restricted cash. The carrying amounts reported in the consolidated balance sheets approximate
fair value as these instruments have interest rates approximating market.
Concentrations of Credit Risk
Our cash equivalents and restricted cash consist of high-quality securities placed with
various major financial institutions with credit ratings at or above AA by Standard & Poors or Aa
by Moodys Investors Service.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 |
|
2005 |
|
|
|
Carrying |
|
|
Fair |
|
|
Carrying |
|
|
Fair |
|
|
|
Amount |
|
|
Value |
|
|
Amount |
|
|
Value |
|
|
|
(In thousands) |
|
Cash and cash equivalents |
|
$ |
37,583 |
|
|
$ |
37,583 |
|
|
$ |
21,378 |
|
|
$ |
21,378 |
|
Restricted cash |
|
|
28,773 |
|
|
|
28,773 |
|
|
|
44,559 |
|
|
|
44,559 |
|
At December 31, 2006 and 2005, substantially all of our customer accounts receivable result
from gas transmission services for and natural gas liquids sales to our two largest customers. This
concentration of customers may impact our overall credit risk either positively or negatively, in
that these entities may be similarly affected by industry-wide changes in economic or other
conditions. As a general policy, collateral is not required for receivables, but customers
financial condition and credit worthiness are evaluated regularly. Our credit policy and the
relatively short duration of receivables mitigate the risk of uncollected receivables. We did not
incur any credit losses on receivables during 2006 and 2005.
Major Customers. Williams and Eni accounted for approximately $57.8 million (58%) and $10.9
million (11%), respectively, of our total revenues in 2004, and $70.8 million (58%) and $8.5
million (7%), respectively, of our total revenues in 2005. Williams and Texas Eastern Corporation
accounted for approximately $149 million (75%) and $12.2 million (6%), respectively, of our total
revenues in 2006.
Note 7. Rate and Regulatory Matters and Contingent Liabilities
Rate and Regulatory Matters. Annually, DGT files a request with the FERC for a
lost-and-unaccounted-for gas percentage to be allocated to shippers for the upcoming fiscal year
beginning July 1. On June 1, 2006, DGT filed to maintain a lost-and-unaccounted-for percentage of
zero percent for the period July 1, 2006 to June 30, 2007 and to retain the 2005 net system gains
of $1.2 million that are unrelated to the lost-and-unaccounted-for gas over recovered from its
shippers. By Order dated June 29, 2006 the filing was approved. As of March 31, 2007 (unaudited),
December 31, 2006 and 2005, DGT has deferred amounts of $5.4 million, $4.6 million and $6 million,
respectively, included in current accrued liabilities in the accompanying Consolidated Balance
Sheets representing amounts collected from customers pursuant to prior years lost and unaccounted
for gas percentage and unrecognized net system gains.
On November 25, 2003, the FERC issued Order No. 2004 promulgating new standards of conduct
applicable to natural gas pipelines. On August 10, 2004, the FERC granted DGT a partial exemption
allowing the continuation of DGTs current ownership structure and management subject to compliance with many of the other standards of
conduct. On November 17, 2006, the United States Court of Appeals for the District of Columbia
Circuit vacated and remanded Order No. 2004 as applied to interstate natural gas pipelines and
their affiliates. On January 9, 2007, the FERC issued an interim rule. The Interim Rule
re-promulgates, on an interim basis, the standards of conduct that were not challenged before the
Court. The Interim Rule applies to
11
DISCOVERY PRODUCER SERVICES LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Information as of March 31, 2007 and for the three months ended March 31, 2007 and 2006 is unaudited
Note 7. Rate and Regulatory Matters and Contingent Liabilities (continued)
the relationship between interstate natural gas pipelines and their marketing and brokering
affiliates, but not necessarily to their other affiliates, such as gatherers, processors or
exploration and production companies. On March 21, 2007 the FERC issued an Order on Clarification
and Rehearing of the Interim Rule. The FERC clarified that the interim standards of conduct only
apply to natural gas transmission providers that are affiliated with a marketing or brokering
entity that conducts transportation transactions on such natural gas transmission providers
pipeline. Currently DGTs marketing or brokering affiliates do no conduct transmission
transactions on DGT. On January 18, 2007, the FERC issued a Notice of Proposed Rulemaking to
propose permanent regulations regarding the standards of conduct. Comments were due April 4, 2007.
The FERC may enact a final rule at any time. At this stage, it cannot be determined how a final
rule may or may not affect Discovery.
On July 20, 2006, DGT and DPS filed applications for Certificates of Public Convenience and
Necessity for DPS to provide to DGT the use of capacity on a DPS gathering line which would be
subject to a Limited Jurisdiction Certificate. The capacity would be provided to DGT under a
capacity lease and would allow DGT to effectuate transportation of gas received from Texas Eastern
Transmission, LP for delivery to DPS Larose processing plant. DPS request for a Limited
Jurisdiction Certificate would permit DGTs use of DPS non-jurisdictional gathering line for DGTs
jurisdictional transportation without having DPS gathering and processing facilities and
operations becoming subject to the full panoply of the Natural Gas Act. On November 26, 2006, the
Commission issued an order granting the requested Certificates. The order was limited to
interruptible service. On December 14, 2006, DGT and DPS filed a request for an amendment to the
Certificates to permit DGT to offer firm service on the leased capacity. The Commission approved
the request by order issued on March 23, 2007.
Pogo Producing Company. On January 16, 2006, DPS and DGT received notice of a claim by POGO
Producing Company (POGO) relating to the results of a POGO audit performed first in April 2004
and then continued through August 2005. POGO claimed that DPS and DGT overcharged POGO and its
working interest owners approximately $600,000 relating to condensate transportation and handling
during 2000 2005. The underlying agreements limit audit claims to a two-year period from the
date of the audit. DPS and DGT disputed the validity of the claim.
Environmental Matters. We are subject to extensive federal, state, and local environmental
laws and regulations which affect our operations related to the construction and operation of our
facilities. Appropriate governmental authorities may enforce these laws and regulations with a
variety of civil and criminal enforcement measures, including monetary penalties, assessment and
remediation requirements and injunctions as to future compliance. We have not been notified and are
not currently aware of any noncompliance under the various environmental laws and regulations.
Other. We are party to various other claims, legal actions and complaints arising in the
ordinary course of business. Litigation, arbitration and environmental matters are subject to
inherent uncertainties. Were an unfavorable ruling to occur, there exists the possibility of a
material adverse impact on the results of operations in the period in which the ruling occurs.
Management, including internal counsel, currently believes that the ultimate resolution of the
foregoing matters, taken as a whole, and after consideration of amounts accrued, insurance coverage
or other indemnification arrangements, will not have a material adverse effect upon our future
financial position.
Note 8. Subsequent Events (unaudited)
On January 10, 2007, we made a cash call to DCP Midstream for $2.4 million for the first
quarter 2007 estimated expenditures on the Tahiti pipeline lateral expansion project.
On January 30, 2007, we made quarterly cash distributions totaling $9 million to our members.
On April 10, 2007, we made a cash call to DCP Midstream for $1.52 million for the second
quarter 2007 estimated expenditures on the Tahiti pipeline lateral expansion project.
On April 30, 2007, we made quarterly cash distributions totaling $16 million to our members.
On June 20, 2007, Williams Partners Operating LLC, the operating subsidiary of Williams
Partners L.P., entered into a Purchase and Sale Agreement with Williams Energy, L.L.C. and Williams
Energy Services, pursuant to which the seller parties agreed to sell a 20% limited liability
company interest in DPS to Williams Partners Operating LLC.
On July 1, 2007, DCP Midstream, LLC and affiliates contributed its entire 40% limited
liability company interest in DPS to DCP Midstream Partners, LP.
12
exv99w4
Exhibit 99.4
THE EAST TEXAS MIDSTREAM BUSINESS
COMBINED FINANCIAL STATEMENTS
AS OF MARCH 31, 2007 AND DECEMBER 31, 2006 AND 2005 AND
FOR THE PERIODS ENDED MARCH 31, 2007 AND 2006 AND DECEMBER 31, 2006, 2005 AND 2004
INDEPENDENT AUDITORS REPORT
To the Board of Directors of
DCP Midstream, LLC
Denver, Colorado
We have audited the accompanying combined balance sheets of the East Texas Midstream Business
(the Business), which consist of assets which are under common ownership and common management,
as of December 31, 2006 and 2005, and the related combined statements of operations, changes in net
parent equity, and cash flows for each of the three years in the period ended December 31, 2006.
These financial statements are the responsibility of the Business management. Our responsibility
is to express an opinion on these financial statements based on our audit.
We conducted our audits in accordance with auditing standards generally accepted in the United
States of America. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material misstatement. An audit
includes consideration of internal control over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not for the purpose of expressing an
opinion on the effectiveness of the Companys internal control over financial reporting.
Accordingly, we express no such opinion. An audit also includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, such financial statements present fairly, in all material respects, the combined
financial position of the Business at December 31, 2006 and 2005, and the combined results of its
operations and its combined cash flows for each of the three years in the period ended December 31,
2006, in conformity with accounting principles generally accepted in the United States of America.
The accompanying combined financial statements have been prepared from the separate records
maintained by DCP Midstream, LLC and may not necessarily be indicative of the conditions that would
have existed or the results of operations if the Business had been operated as an unaffiliated
entity. Portions of certain expenses represent allocations made from, and are applicable to, DCP
Midstream, LLC as a whole.
/s/ Deloitte & Touche LLP
Denver, Colorado
June 29, 2007
1
THE EAST TEXAS MIDSTREAM BUSINESS
COMBINED BALANCE SHEETS
($ in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, |
|
|
December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2005 |
|
|
|
(unaudited) |
|
|
|
|
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable: |
|
|
|
|
|
|
|
|
|
|
|
|
Trade, net of allowance for doubtful
accounts of $0.2 million (unaudited),
$0.2 million and $0.1 million,
respectively |
|
$ |
14.9 |
|
|
$ |
30.1 |
|
|
$ |
22.5 |
|
Affiliates |
|
|
0.2 |
|
|
|
0.1 |
|
|
|
2.5 |
|
Other |
|
|
0.7 |
|
|
|
0.8 |
|
|
|
6.2 |
|
Other |
|
|
0.1 |
|
|
|
0.1 |
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
15.9 |
|
|
|
31.1 |
|
|
|
31.3 |
|
Property, plant and equipment, net |
|
|
230.0 |
|
|
|
227.5 |
|
|
|
227.2 |
|
Other non-current assets |
|
|
|
|
|
|
|
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
245.9 |
|
|
$ |
258.6 |
|
|
$ |
258.6 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND NET PARENT EQUITY |
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable: |
|
|
|
|
|
|
|
|
|
|
|
|
Trade |
|
$ |
33.6 |
|
|
$ |
44.4 |
|
|
$ |
51.9 |
|
Affiliates |
|
|
0.2 |
|
|
|
0.6 |
|
|
|
5.4 |
|
Other |
|
|
2.3 |
|
|
|
2.6 |
|
|
|
2.9 |
|
Other |
|
|
4.8 |
|
|
|
5.8 |
|
|
|
3.7 |
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
40.9 |
|
|
|
53.4 |
|
|
|
63.9 |
|
Deferred income taxes |
|
|
1.8 |
|
|
|
1.8 |
|
|
|
|
|
Other long-term liabilities |
|
|
0.5 |
|
|
|
0.5 |
|
|
|
0.7 |
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
43.2 |
|
|
|
55.7 |
|
|
|
64.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingent liabilities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net parent equity |
|
|
202.7 |
|
|
|
202.9 |
|
|
|
194.0 |
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and net parent equity |
|
$ |
245.9 |
|
|
$ |
258.6 |
|
|
$ |
258.6 |
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to combined financial statements.
2
THE EAST TEXAS MIDSTREAM BUSINESS
COMBINED STATEMENTS OF OPERATIONS
($ in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
Year Ended December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
|
(unaudited) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of natural gas, NGLs and condensate |
|
$ |
13.9 |
|
|
$ |
57.8 |
|
|
$ |
177.7 |
|
|
$ |
164.7 |
|
|
$ |
64.7 |
|
Sales of natural gas, NGLs and condensate to
affiliates |
|
|
75.5 |
|
|
|
78.4 |
|
|
|
286.6 |
|
|
|
365.6 |
|
|
|
308.1 |
|
Transportation and processing services |
|
|
4.8 |
|
|
|
4.6 |
|
|
|
21.9 |
|
|
|
17.1 |
|
|
|
13.4 |
|
Transportation and processing services to affiliates |
|
|
0.1 |
|
|
|
0.1 |
|
|
|
0.3 |
|
|
|
0.3 |
|
|
|
0.3 |
|
(Losses) gains from non-trading derivative activity
affiliates |
|
|
0.1 |
|
|
|
0.1 |
|
|
|
(1.1 |
) |
|
|
(1.7 |
) |
|
|
(0.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating revenues |
|
|
94.4 |
|
|
|
141.0 |
|
|
|
485.4 |
|
|
|
546.0 |
|
|
|
386.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating costs and expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of natural gas and NGLs |
|
|
71.6 |
|
|
|
111.9 |
|
|
|
376.0 |
|
|
|
418.8 |
|
|
|
306.7 |
|
Purchases of natural gas and NGLs from affiliates |
|
|
0.6 |
|
|
|
4.4 |
|
|
|
9.3 |
|
|
|
25.3 |
|
|
|
3.6 |
|
Operating and maintenance expense |
|
|
7.4 |
|
|
|
5.8 |
|
|
|
25.2 |
|
|
|
20.2 |
|
|
|
16.3 |
|
Depreciation expense |
|
|
3.7 |
|
|
|
3.5 |
|
|
|
14.6 |
|
|
|
14.0 |
|
|
|
14.4 |
|
General and administrative expense |
|
|
|
|
|
|
|
|
|
|
0.2 |
|
|
|
0.1 |
|
|
|
0.3 |
|
General and administrative expense affiliate |
|
|
2.8 |
|
|
|
2.4 |
|
|
|
11.3 |
|
|
|
9.8 |
|
|
|
8.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating costs and expenses |
|
|
86.1 |
|
|
|
128.0 |
|
|
|
436.6 |
|
|
|
488.2 |
|
|
|
349.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
8.3 |
|
|
|
13.0 |
|
|
|
48.8 |
|
|
|
57.8 |
|
|
|
37.0 |
|
Income tax expense |
|
|
|
|
|
|
|
|
|
|
1.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
8.3 |
|
|
$ |
13.0 |
|
|
$ |
47.0 |
|
|
$ |
57.8 |
|
|
$ |
37.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to combined financial statements.
3
THE EAST TEXAS MIDSTREAM BUSINESS
COMBINED STATEMENTS OF CHANGES IN NET PARENT EQUITY
($ in millions)
|
|
|
|
|
Balance, January 1, 2004 |
|
$ |
236.5 |
|
Net change in parent advances |
|
|
(53.5 |
) |
Net income |
|
|
37.0 |
|
|
|
|
|
Balance, December 31, 2004 |
|
|
220.0 |
|
Net change in parent advances |
|
|
(83.8 |
) |
Net income |
|
|
57.8 |
|
|
|
|
|
Balance, December 31, 2005 |
|
|
194.0 |
|
Net change in parent advances |
|
|
(38.1 |
) |
Net income |
|
|
47.0 |
|
|
|
|
|
Balance, December 31, 2006 |
|
|
202.9 |
|
Net change in parent advances (unaudited) |
|
|
(8.5 |
) |
Net income (unaudited) |
|
|
8.3 |
|
|
|
|
|
Balance, March 31, 2007 (unaudited) |
|
$ |
202.7 |
|
|
|
|
|
See accompanying notes to combined financial statements.
4
THE EAST TEXAS MIDSTREAM BUSINESS
COMBINED STATEMENTS OF CASH FLOWS
($ in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
Year Ended December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
|
(unaudited) |
|
|
|
|
|
|
|
|
|
|
|
|
|
OPERATING ACTIVITIES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
8.3 |
|
|
$ |
13.0 |
|
|
$ |
47.0 |
|
|
$ |
57.8 |
|
|
$ |
37.0 |
|
Adjustments to reconcile net income to net cash provided by
(used in) operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation expense |
|
|
3.7 |
|
|
|
3.5 |
|
|
|
14.6 |
|
|
|
14.0 |
|
|
|
14.4 |
|
Deferred income taxes |
|
|
|
|
|
|
|
|
|
|
1.8 |
|
|
|
|
|
|
|
|
|
Other, net |
|
|
|
|
|
|
|
|
|
|
0.1 |
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in operating assets and liabilities which provided
(used) cash: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
15.2 |
|
|
|
3.2 |
|
|
|
0.3 |
|
|
|
(16.9 |
) |
|
|
2.0 |
|
Accounts payable |
|
|
(11.6 |
) |
|
|
(21.0 |
) |
|
|
(12.6 |
) |
|
|
33.1 |
|
|
|
1.8 |
|
Other current assets and liabilities |
|
|
0.2 |
|
|
|
(0.7 |
) |
|
|
(1.0 |
) |
|
|
1.8 |
|
|
|
|
|
Other non-current assets and liabilities |
|
|
|
|
|
|
|
|
|
|
(0.2 |
) |
|
|
(0.1 |
) |
|
|
(0.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) operating activities |
|
|
15.8 |
|
|
|
(2.0 |
) |
|
|
50.0 |
|
|
|
89.8 |
|
|
|
55.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INVESTING ACTIVITIES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures |
|
|
(7.3 |
) |
|
|
(1.5 |
) |
|
|
(12.0 |
) |
|
|
(6.1 |
) |
|
|
(1.5 |
) |
Proceeds from sales of assets |
|
|
|
|
|
|
|
|
|
|
0.1 |
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(7.3 |
) |
|
|
(1.5 |
) |
|
|
(11.9 |
) |
|
|
(6.0 |
) |
|
|
(1.5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCING ACTIVITIES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in parent advances |
|
|
(8.5 |
) |
|
|
3.5 |
|
|
|
(38.1 |
) |
|
|
(83.8 |
) |
|
|
(53.5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by financing activities |
|
|
(8.5 |
) |
|
|
3.5 |
|
|
|
(38.1 |
) |
|
|
(83.8 |
) |
|
|
(53.5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in cash |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash, beginning of period |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash, end of period |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to combined financial statements.
5
THE EAST TEXAS MIDSTREAM BUSINESS
NOTES TO COMBINED FINANCIAL STATEMENTS
1. Description of Business and Basis of Presentation
The East Texas Midstream Business, or the Business, we, our, or us, is engaged in the business
of gathering, transporting, treating, compressing, processing, and fractionating natural gas and
natural gas liquids, or NGLs. The operations, located near Carthage, Texas, include a natural gas
processing complex with a total capacity of 780 million cubic feet per day. The facility is
connected to our 845 mile gathering system, as well as third party gathering systems. The complex
is adjacent to our Carthage Hub, which delivers residue gas to interstate and intrastate pipelines.
The Carthage Hub, with an aggregate delivery capacity of 1.5 billion cubic feet per day, acts as a
key exchange point for the purchase and sale of residue gas.
These combined financial statements and related notes present the financial position, results
of operations and cash flows, and changes in net parent equity of the Business held by DCP
Midstream, LLC and its subsidiaries, or Midstream. Midstream is a joint venture owned 50% by
Spectra Energy Corp (which was spun off from Duke Energy Corporation on January 2, 2007) and 50% by
ConocoPhillips. Midstream owns a 37% interest, including 100% of the general partner interest, in
DCP Midstream Partners, LP, or Partners, prior to this contribution. Midstream will contribute a
25% interest in the Business to Partners, on July 1, 2007. As part of the closing of the
contribution, the assets, liabilities and operations of the Business will reside in a new legal
entity, DCP East Texas Holdings LLC. Subsequent to the acquisition by Partners, Midstream will
direct our business operations. The Business is not expected to have any employees. Midstream and
its affiliates employees will be responsible for conducting our business and operating our assets.
The combined financial statements include the accounts of the Business and have been prepared
in accordance with accounting principles generally accepted in the United States of America, or
GAAP. All significant intercompany balances and transactions within the Business have been
eliminated. The combined financial statements of the Business have been prepared from the separate
records maintained by Midstream and may not necessarily be indicative of the conditions that would
have existed, or the results of operations, if the Business had been operated as an unaffiliated
entity. Because a direct ownership relationship did not exist among all the various assets
comprising the Business, Midstreams net investment in the Business is shown as net parent equity,
in lieu of owners equity, in the combined financial statements. Transactions between the Business
and other Midstream operations have been identified in the combined financial statements as
transactions between affiliates. In the opinion of management, all adjustments have been reflected
that are necessary for a fair presentation of the combined financial statements.
The combined statements of operations and cash flows for the three months ended March 31, 2007
and 2006, the combined statement of changes in net parent equity for the three months ended March
31, 2007, and the combined balance sheet as of March 31, 2007, are unaudited. These unaudited
interim combined financial statements have been prepared in accordance with GAAP. In the opinion of
management, the unaudited interim combined financial statements have been prepared on the same
basis as the audited combined financial statements, and include all adjustments necessary to
present fairly the financial position, and the results of operations and cash flows, for the
respective interim periods. Interim financial results are not necessarily indicative of the results
to be expected for an annual period.
2. Summary of Significant Accounting Policies
Use of Estimates Conformity with GAAP requires management to make estimates and assumptions
that affect the amounts reported in the combined financial statements and notes. Although these
estimates are based on managements best available knowledge of current and expected future events,
actual results could differ from those estimates.
Fair Value of Financial Instruments The fair value of accounts receivable and accounts
payable are not materially different from their carrying amounts, due to the short-term nature of
these instruments. Unrealized gains and losses on non-trading derivative instruments are recorded
at fair value.
6
Gas and NGL Imbalance Accounting Quantities of natural gas or NGLs over-delivered or
under-delivered related to imbalance agreements with customers, producers or pipelines are recorded
monthly as other receivables or other payables using current market prices or the weighted-average
prices of natural gas or NGLs at the plant or system. These balances are settled with deliveries of
natural gas or NGLs, or with cash. Included in the combined balance sheets as accounts receivable
other as of March 31, 2007, and December 31, 2006 and 2005, were imbalances totaling $0.1
million (unaudited), $0.4 million and $2.6 million, respectively. Included in the combined balance
sheets as accounts payable other as of March 31, 2007, and December 31, 2006 and 2005, were
imbalances totaling $1.7 million (unaudited), $2.2 million and $1.2 million.
Accounting for Risk Management and Derivative Activities and Financial Instruments Each
derivative not qualifying as a normal purchase or normal sale is recorded on a gross basis in the
combined balance sheets at its fair value as unrealized gains or unrealized losses on non-trading
derivative instruments affiliates. Derivative assets and liabilities remain classified in the
combined balance sheets as unrealized gains or unrealized losses on non-trading derivative
instruments affiliates at fair value until the contractual delivery period impacts earnings.
Our derivative activity includes normal purchase or normal sale contracts, and non-trading
derivative instruments related to commodity prices. Normal purchase and normal sale contracts are
accounted for under the accrual method and are reflected in the combined statements of operations
in either sales or purchases upon settlement. Other commodity non-trading derivative instruments
are accounted for under the mark-to-market method, whereby the change in the fair value of the
asset or liability is recognized in the combined statements of operations in (losses) gains from
non-trading derivative activity affiliates during the current period.
Valuation When available, quoted market prices or prices obtained through external sources
are used to determine a contracts fair value. For contracts with a delivery location or duration
for which quoted market prices are not available, fair value is determined based on pricing models
developed primarily from historical and expected correlations with quoted market prices.
Values are adjusted to reflect the credit risk inherent in the transaction as well as the
potential impact of liquidating open positions in an orderly manner over a reasonable time period
under current conditions. Changes in market prices and management estimates directly affect the
estimated fair value of these contracts. Accordingly, it is reasonably possible that such estimates
may change in the near term.
Property, Plant and Equipment Property, plant and equipment are recorded at historical
cost. Depreciation is computed using the straight-line method over the estimated useful lives of
the assets. The costs of maintenance and repairs, which are not significant improvements, are
expensed when incurred. Expenditures to extend the useful lives of the assets are capitalized.
Asset retirement obligations associated with tangible long-lived assets are recorded at fair
value in the period in which they are incurred, if a reasonable estimate of fair value can be made,
and added to the carrying amount of the associated asset. This additional carrying amount is then
depreciated over the life of the asset. The liability increases due to the passage of time based on
the time value of money until the obligation is settled. We recognize a liability of a conditional
asset retirement obligation as soon as the fair value of the liability can be reasonably estimated.
A conditional asset retirement obligation is defined as an unconditional legal obligation to
perform an asset retirement activity in which the timing and/or method of settlement are
conditional on a future event that may or may not be within the control of the entity.
Impairment of Long-Lived Assets We periodically evaluate whether the carrying value of
long-lived assets has been impaired when circumstances indicate the carrying value of those assets
may not be recoverable. This evaluation is based on undiscounted cash flow projections. The
carrying amount is not recoverable if it exceeds the undiscounted sum of cash flows expected to
result from the use and eventual disposition of the asset. We consider various factors when
determining if these assets should be evaluated for impairment, including but not limited to:
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significant adverse change in legal factors or business climate; |
7
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a current-period operating or cash flow loss combined with a history of operating or
cash flow losses, or a projection or forecast that demonstrates continuing losses
associated with the use of a long-lived asset; |
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an accumulation of costs significantly in excess of the amount originally expected
for the acquisition or construction of a long-lived asset; |
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significant adverse changes in the extent or manner in which an asset is used, or in
its physical condition; |
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a significant adverse change in the market value of an asset; or |
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a current expectation that, more likely than not, an asset will be sold or otherwise
disposed of before the end of its estimated useful life. |
If the carrying value is not recoverable, the impairment loss is measured as the excess of the
assets carrying value over its fair value. We assess the fair value of long-lived assets using
commonly accepted techniques, and may use more than one method, including, but not limited to,
recent third party comparable sales, internally developed discounted cash flow analysis and
analysis from outside advisors. Significant changes in market conditions resulting from events such
as the condition of an asset or a change in managements intent to utilize the asset would
generally require management to reassess the cash flows related to the long-lived assets.
Revenue Recognition We generate the majority of our revenues from gathering, processing,
compressing, transporting, and fractionating natural gas and NGLs. We realize revenues either by
selling the residue natural gas and NGLs, or by receiving fees from the producers.
We obtain access to raw natural gas and provide our midstream natural gas services principally
under contracts that contain a combination of one or more of the following arrangements.
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Fee-based arrangements Under fee-based arrangements, we receive a fee or fees for
one or more of the following services: gathering, compressing, treating, processing, or
transporting of natural gas. Our fee-based arrangements include natural gas purchase
arrangements pursuant to which we purchase raw natural gas at the wellhead, or other
receipt points, at an index related price at the delivery point less a specified
amount, generally the same as the fees we would otherwise charge for gathering of raw
natural gas from the wellhead location to the delivery point. The revenue we earn is
directly related to the volume of natural gas that flows through our systems and is not
directly dependent on commodity prices. To the extent a sustained decline in commodity
prices results in a decline in volumes, however, our revenues from these arrangements
would be reduced. |
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Percent-of-proceeds/index arrangements Under percentage-of-proceeds/index
arrangements, we generally purchase natural gas from producers at the wellhead, or
other receipt points, gather the wellhead natural gas through our gathering system,
treat and process the natural gas, and then sell the resulting residue natural gas and
NGLs based on index prices from published index market prices. We remit to the
producers either an agreed-upon percentage of the actual proceeds that we receive from
our sales of the residue natural gas and NGLs, or an agreed-upon percentage of the
proceeds based on index related prices for the natural gas and the NGLs, regardless of
the actual amount of the sales proceeds we receive. Certain of these arrangements may
also result in our returning all or a portion of the residue natural gas and/or the
NGLs to the producer, in lieu of returning sales proceeds. Our revenues under
percent-of-proceeds/index arrangements correlate directly with the price of natural gas
and/or NGLs. |
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Keep-whole arrangements Under the terms of a keep-whole processing contract, we
gather raw natural gas from the producer for processing, market the NGLs and return to
the producer residue natural gas with a British thermal unit, or Btu, content
equivalent to the Btu content of the raw natural gas gathered. This arrangement keeps
the producer whole to the thermal value of the raw natural gas received. Under these
types of contracts, we are exposed to the frac spread. The frac spread is the
difference between the value of the NGLs extracted from processing and the value of the
Btu equivalent of the residue natural gas. We benefit in periods when NGL prices are
higher relative to natural gas prices. |
8
We recognize revenue for sales and services under the four revenue recognition criteria, as
follows:
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Persuasive evidence of an arrangement exists Our customary practice is to enter into
a written contract, executed by both us and the customer. |
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Delivery Delivery is deemed to have occurred at the time custody is transferred, or
in the case of fee-based arrangements, when the services are rendered. To the extent we
retain product as inventory, delivery occurs when the inventory is subsequently sold and
custody is transferred to the third party purchaser. |
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The fee is fixed or determinable We negotiate the fee for our services at the outset
of our fee-based arrangements. In these arrangements, the fees are nonrefundable. For other
arrangements, the amount of revenue, based on contractual terms, is determinable when the
sale of the applicable product has been completed upon delivery and transfer of custody. |
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Collectability is probable Collectability is evaluated on a customer-by-customer
basis. New and existing customers are subject to a credit review process, which evaluates
the customers financial position (for example, cash position and credit rating) and their
ability to pay. If collectability is not considered probable at the outset of an
arrangement in accordance with our credit review process, revenue is recognized when the
fee is collected. |
We generally report revenues gross in the combined statements of operations, as we typically
act as the principal in these transactions, take custody of the product, and incur the risks and
rewards of ownership. Effective April 1, 2006, any new or amended contracts for certain sales and
purchases of inventory with the same counterparty, when entered into in contemplation of one
another, are reported net as one transaction. We recognize revenues for non-trading derivative
activity net in the combined statements of operations as (losses) gains from non-trading derivative
activity affiliates, including mark-to-market gains and losses and financial or physical
settlement.
Environmental Expenditures Environmental expenditures are expensed or capitalized as
appropriate, depending upon the future economic benefit. Expenditures that relate to an existing
condition caused by past operations and that do not generate current or future revenue are
expensed. Liabilities for these expenditures are recorded on an undiscounted basis when
environmental assessments and/or clean-ups are probable and the costs can be reasonably estimated.
Environmental liabilities as of March 31, 2007, and December 31, 2006 and 2005, included in the
combined balance sheets as other current liabilities, were $0.3 million (unaudited), $0.3 million
and $0.1 million, respectively. Environmental liabilities as of December 31, 2005, included in the
combined balance sheets as other long-term liabilities, were $0.3 million.
Income Taxes Deferred income taxes are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of existing assets and
liabilities, and their respective tax basis. Deferred tax assets and liabilities are measured using
enacted tax rates expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. The effect of any tax rate change on deferred
taxes is recognized in the period that includes the enactment date of the tax rate change.
Realizability of deferred tax assets is assessed and, if necessary, a valuation allowance is
recorded to write down the deferred tax assets to their net realizable value. The Business is a
member of a consolidated group. We have calculated current and deferred income taxes as if we were
a separate taxpayer.
We are treated as a pass-through entity for U.S. federal income tax purposes. As such, we do
not directly pay federal income taxes. The Texas legislature replaced their franchise tax with a
margin tax system in May 2006. As of 2007, we are subject to the Texas margin tax, which is treated
as an income tax. Accordingly, we recorded a deferred tax liability and related expense in 2006,
related to the temporary differences that are expected to reverse in periods when the tax will
apply.
9
3. Recent Accounting Pronouncements
Statement of Financial Accounting Standards, or SFAS, No. 159, The Fair Value Option for
Financial Assets and Financial Liabilitiesincluding an amendment of FAS 115, or SFAS 159 In
February 2007, the Financial Accounting Standards Board, or FASB, issued SFAS 159, which allows
entities to choose, at specified election dates, to measure eligible financial assets and
liabilities at fair value that are not otherwise required to be measured at fair value. If a
company elects the fair value option for an eligible item, changes in that items fair value in
subsequent reporting periods must be recognized in current earnings. SFAS 159 also establishes
presentation and disclosure requirements designed to draw comparison between entities that elect
different measurement attributes for similar assets and liabilities. SFAS 159 is effective for us
on January 1, 2008. We have not assessed the impact of SFAS 159 on our combined results of
operations, cash flows or financial position.
SFAS No. 157, Fair Value Measurements, or SFAS 157 In September 2006, the FASB issued SFAS
157, which provides guidance for using fair value to measure assets and liabilities. The standard
also responds to investors requests for more information about: (1) the extent to which companies
measure assets and liabilities at fair value; (2) the information used to measure fair value; and
(3) the effect that fair value measurements have on earnings. SFAS 157 will apply whenever another
standard requires (or permits) assets or liabilities to be measured at fair value. SFAS 157 does
not expand the use of fair value to any new circumstances. SFAS 157 is effective for us on January
1, 2008. We have not assessed the impact of SFAS 157 on our combined results of operations, cash
flows or financial position.
FASB Interpretation No. 48, Accounting for Uncertainty in Income TaxesAn Interpretation of
FASB Statement 109, or FIN 48 In July 2006, the FASB issued FIN 48, which clarifies the
accounting for uncertainty in income taxes recognized in financial statements in accordance with
FASB Statement No. 109, Accounting for Income Taxes. FIN 48 prescribes a recognition threshold and
measurement attribute for the financial statement recognition and measurement of a tax position
taken or expected to be taken in a tax return. FIN 48 also provides guidance on derecognition,
classification, interest and penalties, accounting in interim periods, disclosure and transition.
The provisions of FIN 48 were effective for us on January 1, 2007, and the adoption of FIN 48 did
not have a material impact on our combined results of operations, cash flows or financial position.
EITF Issue No. 04-13, Accounting for Purchases and Sales of Inventory with the Same
Counterparty, or EITF 04-13 In September 2005, the FASB ratified the EITFs consensus on Issue
04-13, which requires an entity to treat sales and purchases of inventory between the entity and
the same counterparty as one transaction for purposes of applying APB Opinion No. 29, Accounting
for Nonmonetary Transactions, or APB 29, when such transactions are entered into in contemplation
of each other. When such transactions are legally contingent on each other, they are considered to
have been entered into in contemplation of each other. The EITF also agreed on other factors that
should be considered in determining whether transactions have been entered into in contemplation of
each other. EITF 04-13 is to be applied to new arrangements that we enter into after March 31,
2006. The net impact of the adoption of EITF 04-13 for the year ended December 31, 2006, and the
three months ended March 31, 2007, was a reduction of sales and purchases of approximately $44.3
million and $28.6 million (unaudited), respectively.
4. Agreements and Transactions with Affiliates
The employees supporting our operations are employees of Midstream. Costs incurred by
Midstream on our behalf for salaries and benefits of operating personnel, as well as capital
expenditures, maintenance and repair costs, and taxes have been directly allocated to us. Midstream
also provides centralized corporate functions on our behalf, including legal, accounting, cash
management, insurance administration and claims processing, risk management, health, safety and
environmental, information technology, human resources, credit, payroll, internal audit, taxes and
engineering. Midstream records the accrued liabilities and prepaid expenses for most general and
administrative expenses in its financial statements, including liabilities related to payroll,
short and long-term incentive plans, employee retirement and medical plans, paid time off, audit,
tax, insurance and other service fees. Our share of those costs has been allocated based on
Midstreams proportionate net investment (consisting of property, plant and equipment, net, equity
method investment and intangibles) compared to our net investment. In managements estimation, the
allocation methodologies used are reasonable and result in an allocation to us of our costs of
doing business borne by Midstream.
10
We participate in Midstreams cash management program. As a result, we have no cash balances
on the combined balance sheets and all of our cash management activity was performed by Midstream
on our behalf, including collection of receivables, payment of payables, and the settlement of
sales and purchases transactions with Midstream, which were recorded as parent advances and are
included in net parent equity on the accompanying combined balance sheets.
We currently, and anticipate to continue to, sell to Midstream, and purchase from and sell to
ConocoPhillips, in the ordinary course of business. Midstream was a significant customer during the
three months ended March 31, 2007 and 2006 (unaudited), and the years ended December 31, 2006, 2005
and 2004.
Prior to December 31, 2006, we sold to and purchased from Duke Energy Corporation. On January
2, 2007, Duke Energy Corporation spun off their natural gas businesses, including their 50%
ownership interest in Midstream, to Duke Energy shareholders. As a result of this transaction, Duke
Energy Corporations 50% ownership interest in Midstream was transferred to Spectra Energy Corp.
Consequently, Duke Energy Corporation is not considered a related party for reporting periods after
January 2, 2007. We had no significant transactions with Spectra Energy Corp.
The following table summarizes transactions with affiliates ($ in millions):
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Three Months Ended |
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March 31, |
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Year Ended December 31, |
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2007 |
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2006 |
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2006 |
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2005 |
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2004 |
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(unaudited) |
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DCP Midstream, LLC: |
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Sales of natural gas, NGLs and condensate |
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$ |
74.0 |
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$ |
71.8 |
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$ |
276.3 |
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$ |
355.2 |
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$ |
289.2 |
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General and administrative expense |
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$ |
2.8 |
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$ |
2.4 |
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$ |
11.3 |
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$ |
9.8 |
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$ |
8.1 |
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Duke Energy Corporation: |
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Sales of natural gas, NGLs and condensate |
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$ |
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$ |
6.6 |
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$ |
6.6 |
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$ |
6.7 |
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$ |
12.2 |
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Purchases of natural gas and NGLs |
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$ |
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$ |
0.1 |
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$ |
0.1 |
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$ |
3.8 |
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$ |
1.6 |
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ConocoPhillips: |
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Sales of natural gas, NGLs and condensate |
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$ |
1.5 |
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$ |
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$ |
3.7 |
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$ |
3.7 |
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$ |
6.7 |
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Transportation and processing services |
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$ |
0.1 |
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$ |
0.1 |
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$ |
0.3 |
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$ |
0.3 |
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$ |
0.3 |
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Purchases of natural gas and NGLs |
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$ |
0.6 |
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$ |
4.3 |
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$ |
9.2 |
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$ |
21.5 |
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$ |
2.0 |
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We had accounts receivable and accounts payable with affiliates as follows ($ in millions):
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March 31, |
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December 31, |
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2007 |
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2006 |
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2005 |
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(unaudited) |
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Duke Energy Corporation: |
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Accounts receivable |
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$ |
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$ |
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$ |
2.4 |
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ConocoPhillips: |
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Accounts receivable |
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$ |
0.2 |
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$ |
0.1 |
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$ |
0.1 |
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Accounts payable |
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$ |
0.2 |
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$ |
0.6 |
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$ |
5.4 |
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11
5. Property, Plant and Equipment
A summary of property, plant and equipment is as follows ($ in millions):
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Depreciable |
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December 31, |
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Life |
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2006 |
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2005 |
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Gathering systems |
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15 30 Years |
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$ |
70.0 |
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$ |
59.6 |
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Processing plants |
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25 30 Years |
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218.4 |
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218.1 |
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Transportation |
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25 30 Years |
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34.3 |
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34.2 |
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General plant |
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3 5 Years |
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7.2 |
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6.8 |
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Construction work in progress |
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5.7 |
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2.1 |
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335.6 |
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320.8 |
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Accumulated depreciation |
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(108.1 |
) |
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(93.6 |
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Property, plant and equipment, net |
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$ |
227.5 |
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$ |
227.2 |
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In addition, property, plant and equipment includes $3.1 million, $0.6 million, and $0.1
million of non-cash additions for the years ended December 31, 2006, 2005 and 2004, respectively,
and $0 and $0.1 million of non-cash additions for the three months ended March 31, 2007 and 2006,
respectively (unaudited).
6. Risk Management and Derivative Activities, Credit Risk and Financial Instruments
We are exposed to market risks, including changes in commodity prices. We may use financial
instruments such as forward contracts, swaps and futures to mitigate the effects of the identified
risks. In general, we attempt to hedge risks related to the variability of future earnings and cash
flows resulting from changes in applicable commodity prices. Midstream has a comprehensive risk
management policy, or the Risk Management Policy, and a risk management committee, to monitor and
manage market risks associated with commodity prices. Midstreams Risk Management Policy prohibits
the use of derivative instruments for speculative purposes.
Commodity Price Risk Our principal operations of gathering, processing, and transporting
natural gas, and the accompanying operations of transporting and sale of NGLs create commodity
price risk due to market fluctuations in commodity prices, primarily with respect to the prices of
NGLs and natural gas. As an owner and operator of natural gas processing assets, we have an
inherent exposure to market variables and commodity price risk. The amount and type of price risk
is dependent on the underlying natural gas contracts to purchase and process raw natural gas. Risk
is also dependent on the types and mechanisms for sales of natural gas, NGLs and condensate, and
related products produced, processed or transported.
Credit Risk We sell natural gas to marketing affiliates of natural gas pipelines, marketing
affiliates of integrated oil companies, marketing affiliates of Midstream, national wholesale
marketers, industrial end-users and gas-fired power plants. Our principal NGL customers include an
affiliate of Midstream, producers and marketing companies. Concentration of credit risk may affect
our overall credit risk, in that these customers may be similarly affected by changes in economic,
regulatory or other factors. Where exposed to credit risk, we analyze the counterparties financial
condition prior to entering into an agreement, establish credit limits, and monitor the
appropriateness of these limits on an ongoing basis. We operate under Midstreams corporate credit
policy. Midstreams corporate credit policy, as well as the standard terms and conditions of our
agreements, prescribe the use of financial responsibility and reasonable grounds for adequate
assurances. These provisions allow Midstreams credit department to request that a counterparty
remedy credit limit violations by posting cash or letters of credit for exposure in excess of an
established credit line. The credit line represents an open credit limit, determined in accordance
with Midstreams credit policy and guidelines. The agreements also provide that the inability of a
counterparty to post collateral is sufficient cause to terminate a contract and liquidate all
positions. The adequate assurance provisions also allow us to suspend deliveries, cancel agreements
or continue deliveries to the buyer after the buyer provides security for payment to us in a form
satisfactory to us.
Commodity Non-Trading Derivative Activity The sale of energy related products and services
exposes us to the fluctuations in the market values of exchanged instruments. On a monthly basis,
we may enter into non-trading
12
derivative instruments in order to match the pricing terms to manage our purchase and sale
portfolios. Midstream manages our marketing portfolios in accordance with their Risk Management
Policy, which limits exposure to market risk.
7. Asset Retirement Obligations
Our asset retirement obligations relate primarily to the retirement of various gathering
pipelines and processing facilities, obligations related to right-of-way easement agreements, and
contractual leases for land use. We recognize the fair value of a liability for an asset retirement
obligation in the period in which it is incurred, if a reasonable estimate of fair value can be
made. The fair value of the liability is added to the carrying amount of the associated asset. This
additional carrying amount is then depreciated over the life of the asset. The liability increases
due to the passage of time based on the time value of money until the obligation is settled.
Accretion expense for the three months ended March 31, 2007 and 2006 (unaudited), and the years
ended December 31, 2006, 2005 and 2004 was not significant.
The asset retirement obligation is adjusted each quarter for any liabilities incurred or
settled during the period, accretion expense and any revisions made to the estimated cash flows.
The asset retirement obligation as of March 31, 2007, and December 31, 2006 and 2005, included in
the combined balance sheets as other long-term liabilities, was $0.5 million (unaudited), $0.4
million and $0.4 million, respectively.
8. Income Taxes
In May 2006, the State of Texas enacted a new margin-based franchise tax law that replaces the
existing franchise tax. This new tax is commonly referred to as the Texas margin tax. Corporations,
limited partnerships, limited liability companies, limited liability partnerships and joint
ventures are examples of the types of entities that are subject to the new tax. The tax is
considered an income tax for purposes of adjustments to the deferred tax liability. The tax is
determined by applying a tax rate to a base that considers both revenues and expenses. The Texas
margin tax becomes effective for franchise tax reports due on or after January 1, 2008. The tax
will be based on the margin earned during the prior calendar year.
The margin has been defined as revenues less cost of goods sold and certain other deductible
expenses. The Texas margin tax is assessed at 1% of taxable margin apportioned to Texas.
The Texas margin tax is considered an income tax. GAAP requires that deferred taxes be
adjusted upon enactment of new tax law, which occurred in 2006. Accordingly, we recorded a deferred
tax liability and related expense of $1.8 million in 2006, related primarily to property, plant and
equipment. Beginning in 2007, we are recording current expense for the Texas margin tax.
Our effective tax rate differs from statutory rates primarily due to our being treated as a
pass-through entity for United States income tax purposes, while being treated as a taxable entity
in Texas.
9. Commitments and Contingent Liabilities
Litigation We are not a party to any significant legal proceedings, but are a party to
various administrative and regulatory proceedings that have arisen in the ordinary course of our
business. Management currently believes that the ultimate resolution of the foregoing matters,
taken as a whole, and after consideration of amounts accrued, insurance coverage or other
indemnification arrangements, will not have a material adverse effect upon our combined results of
operations, financial position, or cash flows.
Insurance Effective August 2006, Midstreams insurance coverage is carried with an
affiliate of ConocoPhillips and third party insurers. Prior to August 2006, Midstream carried a
portion of their insurance coverage with an affiliate of Duke Energy Corporation. Midstreams
insurance coverage includes: (1) commercial general public liability insurance for liabilities
arising to third parties for bodily injury and property damage resulting from operations; (2)
workers compensation liability coverage to required statutory limits; (3) automobile liability
insurance for all owned, non-owned and hired vehicles covering liabilities to third parties for
bodily injury and property damage; (4) excess liability insurance above the established primary
limits for commercial general
13
liability and automobile liability insurance; and (5) property insurance covering the
replacement value of all real and personal property damage, including damages arising from boiler
and machinery breakdowns, windstorms, earthquake, flood damage and business interruption/extra
expense. All coverages are subject to certain limits and deductibles, the terms and conditions of
which are common for companies with similar types of operations.
A portion of the insurance costs described above are allocated by Midstream to us through the
allocation methodology described in Note 4.
Environmental The operation of pipelines, plants and other facilities for gathering,
transporting, processing, or treating natural gas, NGLs and other products is subject to stringent
and complex laws and regulations pertaining to health, safety and the environment. As an owner or
operator of these facilities, we must comply with United States laws and regulations at the
federal, state and local levels that relate to air and water quality, hazardous and solid waste
management and disposal, and other environmental matters. The cost of planning, designing,
constructing and operating pipelines, plants, and other facilities must incorporate compliance with
environmental laws and regulations and safety standards. Failure to comply with these laws and
regulations may trigger a variety of administrative, civil and potentially criminal enforcement
measures, including citizen suits, which can include the assessment of monetary penalties, the
imposition of remedial requirements, and the issuance of injunctions or restrictions on operation.
Management believes that, based on currently known information, compliance with these laws and
regulations will not have a material adverse effect on our combined results of operations,
financial position or cash flows.
14
exv99w5
Exhibit 99.5
UNAUDITED DCP MIDSTREAM PARTNERS, LP PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
The unaudited pro forma condensed consolidated financial statements present the impact on our
financial position and results of operations of our acquisition of a 25% interest in the East Texas
Midstream Business from DCP Midstream, LLC, or Midstream, and 100% of Midstreams 40% interest in
Discovery Producer Services LLC, or Discovery. We also acquired a non-trading derivative
instrument, or the Swap, that Midstream entered into in March 2007. We paid aggregate consideration
consisting of approximately $244.7 million in cash, including $2.3 million for net working capital,
the issuance of 620,404 common units valued at $27.0 million and the issuance of 12,661 general
partner equivalent units valued at $0.6 million. The general partner equivalent units were issued
in order for Midstream to maintain its 2% general partner interest. The pro forma financial
statements as of March 31, 2007, and for the three months ended March 31, 2007, and for the years
ended December 31, 2006, 2005 and 2004, have been prepared based on certain pro forma adjustments
to our historical consolidated financial statements set forth in our Annual Report on Form 10-K for
the year ended December 31, 2006, and our Quarterly Report on Form 10-Q for the quarter ended March
31, 2007, as filed with the Securities and Exchange Commission, and are qualified in their entirety
by reference to such historical consolidated financial statements and related notes contained in
those reports. The unaudited pro forma condensed consolidated financial statements should be read
in conjunction with the accompanying notes and with the historical consolidated financial
statements and related notes thereto.
The unaudited pro forma condensed consolidated balance sheet as of March 31, 2007, has been
prepared as if this transaction had occurred on that date. The unaudited pro forma condensed
consolidated statements of operations for the three months ended March 31, 2007, and for the years
ended December 31, 2006, 2005 and 2004, have been prepared as if this transaction had occurred on
January 1, 2004. Midstream entered into the Swap in March 2007; therefore, the pro forma
adjustments related to the Swap only impact the balance sheet as of March 31, 2007 and the
statement of operations for the three months ended March 31, 2007. Since this is a transaction
between entities under common control, the pro forma financial statements are combined on an as
if pooling basis. Accordingly, the historic impact of the acquired assets and liabilities are
carried forward.
The pro forma adjustments are based upon currently available information and certain estimates
and assumptions; therefore, actual adjustments will differ from the pro forma adjustments.
Management believes, however, that the assumptions provide a reasonable basis for presenting the
significant effects of the transaction as contemplated, and that the pro forma adjustments give
appropriate effect to those assumptions and are properly applied in the unaudited pro forma
condensed consolidated financial statements.
The unaudited pro forma condensed consolidated financial statements may not be indicative of
the results that actually would have occurred if we had owned our interest in the East Texas
Midstream Business and Discovery during the periods presented.
1
DCP MIDSTREAM PARTNERS, LP
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
MARCH 31, 2007
($ in millions)
|
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|
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The East |
|
|
Discovery |
|
|
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|
|
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|
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|
DCP |
|
|
|
DCP |
|
|
Texas |
|
|
Producer |
|
|
Pro Forma |
|
|
Pro Forma |
|
|
Midstream |
|
|
|
Midstream |
|
|
Midstream |
|
|
Services |
|
|
Adjustments |
|
|
Adjustments |
|
|
Partners, LP |
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|
Partners, LP |
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Business |
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LLC |
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Elimination |
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Other |
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Pro Forma |
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(a) |
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ASSETS |
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Current assets: |
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Cash and cash equivalents |
|
$ |
29.4 |
|
|
$ |
|
|
|
$ |
30.9 |
|
|
$ |
(30.9 |
) |
|
$ |
244.7 |
(b) |
|
$ |
29.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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(244.7 |
)(c) |
|
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Accounts receivable |
|
|
68.1 |
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|
15.8 |
|
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|
33.6 |
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(49.4 |
) |
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|
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|
68.1 |
|
Other |
|
|
43.1 |
|
|
|
0.1 |
|
|
|
3.1 |
|
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|
(3.2 |
) |
|
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|
43.1 |
|
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Total current assets |
|
|
140.6 |
|
|
|
15.9 |
|
|
|
67.6 |
|
|
|
(83.5 |
) |
|
|
|
|
|
|
140.6 |
|
Restricted investments |
|
|
102.0 |
|
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|
19.9 |
|
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|
(19.9 |
) |
|
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|
|
|
102.0 |
|
Property, plant and equipment, net |
|
|
193.6 |
|
|
|
230.0 |
|
|
|
376.0 |
|
|
|
(606.0 |
) |
|
|
|
|
|
|
193.6 |
|
Goodwill and intangible assets, net |
|
|
32.0 |
|
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|
32.0 |
|
Equity method investments |
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|
6.1 |
|
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|
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|
|
|
|
|
|
166.8 |
(c) |
|
|
172.9 |
|
Other non-current assets |
|
|
5.1 |
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
0.3 |
(c) |
|
|
5.4 |
|
|
|
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Total assets |
|
$ |
479.4 |
|
|
$ |
245.9 |
|
|
$ |
463.5 |
|
|
$ |
(709.4 |
) |
|
$ |
167.1 |
|
|
$ |
646.5 |
|
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|
LIABILITIES AND PARTNERS EQUITY |
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Current liabilities: |
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Accounts payable |
|
$ |
96.4 |
|
|
$ |
36.1 |
|
|
$ |
34.8 |
|
|
$ |
(70.9 |
) |
|
$ |
|
|
|
$ |
96.4 |
|
Other |
|
|
8.6 |
|
|
|
4.8 |
|
|
|
11.3 |
|
|
|
(16.1 |
) |
|
|
1.5 |
(c) |
|
|
10.1 |
|
|
|
|
|
|
|
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Total current liabilities |
|
|
105.0 |
|
|
|
40.9 |
|
|
|
46.1 |
|
|
|
(87.0 |
) |
|
|
1.5 |
|
|
|
106.5 |
|
Long-term debt |
|
|
268.0 |
|
|
|
|
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|
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|
|
244.7 |
(b) |
|
|
512.7 |
|
Other long-term liabilities |
|
|
5.0 |
|
|
|
2.3 |
|
|
|
3.8 |
|
|
|
(6.1 |
) |
|
|
1.7 |
(c) |
|
|
6.7 |
|
|
|
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|
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Total liabilities |
|
|
378.0 |
|
|
|
43.2 |
|
|
|
49.9 |
|
|
|
(93.1 |
) |
|
|
247.9 |
|
|
|
625.9 |
|
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Commitments and contingent liabilities |
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Partners equity: |
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|
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Members capital |
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|
413.6 |
|
|
|
(413.6 |
) |
|
|
|
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|
Predecessor equity |
|
|
|
|
|
|
202.7 |
|
|
|
|
|
|
|
(202.7 |
) |
|
|
|
|
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|
Common unitholders |
|
|
226.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27.0 |
(c) |
|
|
144.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(108.4 |
)(c) |
|
|
|
|
Class C unitholders |
|
|
(20.6 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(20.6 |
) |
Subordinated unitholders |
|
|
(99.6 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(99.6 |
) |
General partner interest |
|
|
(4.9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.6 |
(c) |
|
|
(4.3 |
) |
Accumulated other comprehensive income |
|
|
0.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.6 |
|
|
|
|
|
|
|
|
Total |
|
|
101.6 |
|
|
|
202.7 |
|
|
|
413.6 |
|
|
|
(616.3 |
) |
|
|
(80.8 |
) |
|
|
20.8 |
|
Less treasury units |
|
|
0.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.2 |
|
|
|
|
|
|
|
|
Total partners equity |
|
|
101.4 |
|
|
|
202.7 |
|
|
|
413.6 |
|
|
|
(616.3 |
) |
|
|
(80.8 |
) |
|
|
20.6 |
|
|
|
|
|
|
|
|
Total liabilities and partners equity |
|
$ |
479.4 |
|
|
$ |
245.9 |
|
|
$ |
463.5 |
|
|
$ |
(709.4 |
) |
|
$ |
167.1 |
|
|
$ |
646.5 |
|
|
|
|
|
|
|
|
See accompanying notes to unaudited pro forma condensed consolidated financial statements.
2
DCP MIDSTREAM PARTNERS, LP
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2007
($ in millions, except per unit amounts)
|
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|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The East |
|
|
Discovery |
|
|
|
|
|
|
|
|
|
|
DCP |
|
|
|
DCP |
|
|
Texas |
|
|
Producer |
|
|
Pro Forma |
|
|
Pro Forma |
|
|
Midstream |
|
|
|
Midstream |
|
|
Midstream |
|
|
Services |
|
|
Adjustments |
|
|
Adjustments |
|
|
Partners, LP |
|
|
|
Partners, LP |
|
|
Business |
|
|
LLC |
|
|
Elimination |
|
|
Other |
|
|
Pro Forma |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
|
|
|
|
|
|
|
|
|
Total operating revenues |
|
$ |
240.1 |
|
|
$ |
94.4 |
|
|
$ |
52.5 |
|
|
$ |
(146.9 |
) |
|
$ |
(2.9 |
)(d) |
|
$ |
237.2 |
|
|
|
|
|
|
|
|
|
Operating costs and expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of natural gas, propane and NGLs |
|
|
210.9 |
|
|
|
72.2 |
|
|
|
33.5 |
|
|
|
(105.7 |
) |
|
|
|
|
|
|
210.9 |
|
Operating and maintenance expense |
|
|
6.6 |
|
|
|
7.4 |
|
|
|
6.8 |
|
|
|
(14.2 |
) |
|
|
|
|
|
|
6.6 |
|
Depreciation and amortization expense |
|
|
3.4 |
|
|
|
3.7 |
|
|
|
6.5 |
|
|
|
(10.2 |
) |
|
|
|
|
|
|
3.4 |
|
General and administrative expense |
|
|
4.8 |
|
|
|
2.8 |
|
|
|
0.5 |
|
|
|
(3.3 |
) |
|
|
|
|
|
|
4.8 |
|
|
|
|
|
|
|
|
Total operating costs and expenses |
|
|
225.7 |
|
|
|
86.1 |
|
|
|
47.3 |
|
|
|
(133.4 |
) |
|
|
|
|
|
|
225.7 |
|
|
|
|
|
|
|
|
Operating income |
|
|
14.4 |
|
|
|
8.3 |
|
|
|
5.2 |
|
|
|
(13.5 |
) |
|
|
(2.9 |
) |
|
|
11.5 |
|
Interest income |
|
|
1.7 |
|
|
|
|
|
|
|
0.7 |
|
|
|
(0.7 |
) |
|
|
|
|
|
|
1.7 |
|
Interest expense |
|
|
(3.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3.5 |
)(e) |
|
|
(7.3 |
) |
Earnings from equity method investments |
|
|
0.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.8 |
(f) |
|
|
6.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.1 |
(g) |
|
|
|
|
Other income |
|
|
|
|
|
|
|
|
|
|
0.7 |
|
|
|
(0.7 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
12.5 |
|
|
$ |
8.3 |
|
|
$ |
6.6 |
|
|
$ |
(14.9 |
) |
|
$ |
(0.5 |
) |
|
$ |
12.0 |
|
Less: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General partner interest in net income |
|
|
(0.3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.3 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income allocable to limited partners |
|
$ |
12.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(0.5 |
) |
|
$ |
11.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per limited partner unit basic and diluted |
|
$ |
0.58 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.56 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average limited partner units outstanding
basic and diluted |
|
|
17.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.6 |
|
|
|
18.3 |
|
See accompanying notes to unaudited pro forma condensed consolidated financial statements.
3
DCP MIDSTREAM PARTNERS, LP
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 2006
($ in millions, except per unit amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The East |
|
|
Discovery |
|
|
|
|
|
|
|
|
|
|
DCP |
|
|
|
DCP |
|
|
Texas |
|
|
Producer |
|
|
Pro Forma |
|
|
Pro Forma |
|
|
Midstream |
|
|
|
Midstream |
|
|
Midstream |
|
|
Services |
|
|
Adjustments |
|
|
Adjustments |
|
|
Partners, LP |
|
|
|
Partners, LP |
|
|
Business |
|
|
LLC |
|
|
Elimination |
|
|
Other |
|
|
Pro Forma |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating revenues |
|
$ |
795.8 |
|
|
$ |
485.4 |
|
|
$ |
197.3 |
|
|
$ |
(682.7 |
) |
|
$ |
|
|
|
$ |
795.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating costs and expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of natural gas, propane and NGLs |
|
|
700.4 |
|
|
|
385.3 |
|
|
|
119.6 |
|
|
|
(504.9 |
) |
|
|
|
|
|
|
700.4 |
|
Operating and maintenance expense |
|
|
23.7 |
|
|
|
25.2 |
|
|
|
24.1 |
|
|
|
(49.3 |
) |
|
|
|
|
|
|
23.7 |
|
Depreciation and amortization expense |
|
|
12.8 |
|
|
|
14.6 |
|
|
|
25.6 |
|
|
|
(40.2 |
) |
|
|
|
|
|
|
12.8 |
|
General and administrative expense |
|
|
21.0 |
|
|
|
11.5 |
|
|
|
2.4 |
|
|
|
(13.9 |
) |
|
|
|
|
|
|
21.0 |
|
|
|
|
|
|
|
|
Total operating costs and expenses |
|
|
757.9 |
|
|
|
436.6 |
|
|
|
171.7 |
|
|
|
(608.3 |
) |
|
|
|
|
|
|
757.9 |
|
|
|
|
|
|
|
|
Operating income |
|
|
37.9 |
|
|
|
48.8 |
|
|
|
25.6 |
|
|
|
(74.4 |
) |
|
|
|
|
|
|
37.9 |
|
Interest income |
|
|
6.3 |
|
|
|
|
|
|
|
2.4 |
|
|
|
(2.4 |
) |
|
|
|
|
|
|
6.3 |
|
Interest expense |
|
|
(11.5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(14.0 |
)(e) |
|
|
(25.5 |
) |
Earnings from equity method investments |
|
|
0.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16.9 |
(f) |
|
|
29.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11.8 |
(g) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income |
|
|
|
|
|
|
|
|
|
|
2.1 |
|
|
|
(2.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
33.0 |
|
|
|
48.8 |
|
|
|
30.1 |
|
|
|
(78.9 |
) |
|
|
14.7 |
|
|
|
47.7 |
|
Income tax expense |
|
|
|
|
|
|
1.8 |
|
|
|
|
|
|
|
(1.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
33.0 |
|
|
$ |
47.0 |
|
|
$ |
30.1 |
|
|
$ |
(77.1 |
) |
|
$ |
14.7 |
|
|
$ |
47.7 |
|
Less: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to predecessor operations |
|
|
2.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.3 |
|
General partner interest in net income |
|
|
(0.7 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.3 |
) |
|
|
(1.0 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income allocable to limited partners |
|
$ |
34.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
14.4 |
|
|
$ |
49.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per limited partner unit basic and diluted |
|
$ |
1.90 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
2.31 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average limited partner units outstanding
basic and diluted |
|
|
17.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.6 |
|
|
|
18.1 |
|
See accompanying notes to unaudited pro forma condensed consolidated financial statements.
4
DCP MIDSTREAM PARTNERS, LP
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 2005
($ in millions, except per unit amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The East |
|
|
Discovery |
|
|
|
|
|
|
|
|
|
|
DCP |
|
|
|
DCP |
|
|
Texas |
|
|
Producer |
|
|
Pro Forma |
|
|
Pro Forma |
|
|
Midstream |
|
|
|
Midstream |
|
|
Midstream |
|
|
Services |
|
|
Adjustments |
|
|
Adjustments |
|
|
Partners, LP |
|
|
|
Partners, LP |
|
|
Business |
|
|
LLC |
|
|
Elimination |
|
|
Other |
|
|
Pro Forma |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating revenues |
|
$ |
1,144.3 |
|
|
$ |
546.0 |
|
|
$ |
122.7 |
|
|
$ |
(668.7 |
) |
|
$ |
|
|
|
$ |
1,144.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating costs and expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of natural gas, propane and NGLs |
|
|
1,047.3 |
|
|
|
444.1 |
|
|
|
64.5 |
|
|
|
(508.6 |
) |
|
|
|
|
|
|
1,047.3 |
|
Operating and maintenance expense |
|
|
22.4 |
|
|
|
20.2 |
|
|
|
11.3 |
|
|
|
(31.5 |
) |
|
|
|
|
|
|
22.4 |
|
Depreciation and amortization expense |
|
|
12.7 |
|
|
|
14.0 |
|
|
|
24.8 |
|
|
|
(38.8 |
) |
|
|
|
|
|
|
12.7 |
|
General and administrative expense |
|
|
14.2 |
|
|
|
9.9 |
|
|
|
2.0 |
|
|
|
(11.9 |
) |
|
|
|
|
|
|
14.2 |
|
|
|
|
|
|
|
|
Total operating costs and expenses |
|
|
1,096.6 |
|
|
|
488.2 |
|
|
|
102.6 |
|
|
|
(590.8 |
) |
|
|
|
|
|
|
1,096.6 |
|
|
|
|
|
|
|
|
Operating income |
|
|
47.7 |
|
|
|
57.8 |
|
|
|
20.1 |
|
|
|
(77.9 |
) |
|
|
|
|
|
|
47.7 |
|
Interest income |
|
|
0.5 |
|
|
|
|
|
|
|
1.7 |
|
|
|
(1.7 |
) |
|
|
|
|
|
|
0.5 |
|
Interest expense |
|
|
(0.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11.5 |
)(e) |
|
|
(12.3 |
) |
Earnings from equity method investments |
|
|
0.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10.8 |
(f) |
|
|
25.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14.5 |
(g) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income |
|
|
|
|
|
|
|
|
|
|
(1.0 |
) |
|
|
1.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
47.8 |
|
|
|
57.8 |
|
|
|
20.8 |
|
|
|
(78.6 |
) |
|
|
13.8 |
|
|
|
61.6 |
|
Income tax expense |
|
|
3.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.3 |
|
|
|
|
|
|
|
|
Income before cumulative effect of change in accounting principle |
|
|
44.5 |
|
|
|
57.8 |
|
|
|
20.8 |
|
|
|
(78.6 |
) |
|
|
13.8 |
|
|
|
58.3 |
|
Cumulative effect of change in accounting principle |
|
|
|
|
|
|
|
|
|
|
(0.2 |
) |
|
|
0.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
44.5 |
|
|
$ |
57.8 |
|
|
$ |
20.6 |
|
|
$ |
(78.4 |
) |
|
$ |
13.8 |
|
|
$ |
58.3 |
|
Less: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to predecessor operations |
|
|
(39.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(12.3 |
) |
|
|
(52.1 |
) |
General partner interest in net income |
|
|
(0.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income allocable to limited partners |
|
$ |
4.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1.5 |
|
|
$ |
6.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per limited partner unit basic and diluted |
|
$ |
0.20 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
0.23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average limited partner units outstanding basic and
diluted |
|
|
17.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.6 |
|
|
|
18.1 |
|
See accompanying notes to unaudited pro forma condensed consolidated financial statements.
5
DCP MIDSTREAM PARTNERS, LP
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 2004
($ in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The East |
|
|
Discovery |
|
|
|
|
|
|
|
|
|
|
DCP |
|
|
|
DCP |
|
|
Texas |
|
|
Producer |
|
|
Pro Forma |
|
|
Pro Forma |
|
|
Midstream |
|
|
|
Midstream |
|
|
Midstream |
|
|
Services |
|
|
Adjustments |
|
|
Adjustments |
|
|
Partners, LP |
|
|
|
Partners, LP |
|
|
Business |
|
|
LLC |
|
|
Elimination |
|
|
Other |
|
|
Pro Forma |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating revenues |
|
$ |
834.0 |
|
|
$ |
386.4 |
|
|
$ |
99.9 |
|
|
$ |
(486.3 |
) |
|
$ |
|
|
|
$ |
834.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating costs and expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of natural gas, propane and NGLs |
|
|
760.6 |
|
|
|
310.3 |
|
|
|
45.4 |
|
|
|
(355.7 |
) |
|
|
|
|
|
|
760.6 |
|
Operating and maintenance expense |
|
|
19.8 |
|
|
|
16.3 |
|
|
|
19.2 |
|
|
|
(35.5 |
) |
|
|
|
|
|
|
19.8 |
|
Depreciation and amortization expense |
|
|
14.7 |
|
|
|
14.4 |
|
|
|
22.8 |
|
|
|
(37.2 |
) |
|
|
|
|
|
|
14.7 |
|
General and administrative expense |
|
|
8.7 |
|
|
|
8.4 |
|
|
|
1.4 |
|
|
|
(9.8 |
) |
|
|
|
|
|
|
8.7 |
|
|
|
|
|
|
|
|
Total operating costs and expenses |
|
|
803.8 |
|
|
|
349.4 |
|
|
|
88.8 |
|
|
|
(438.2 |
) |
|
|
|
|
|
|
803.8 |
|
|
|
|
|
|
|
|
Operating income |
|
|
30.2 |
|
|
|
37.0 |
|
|
|
11.1 |
|
|
|
(48.1 |
) |
|
|
|
|
|
|
30.2 |
|
Interest income |
|
|
|
|
|
|
|
|
|
|
0.6 |
|
|
|
(0.6 |
) |
|
|
|
|
|
|
|
|
Interest expense |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6.8 |
)(e) |
|
|
(6.8 |
) |
Earnings from equity method investments |
|
|
0.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7.8 |
(f) |
|
|
17.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9.3 |
(g) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impairment of equity method investment |
|
|
(4.4 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4.4 |
) |
Other income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes |
|
|
26.4 |
|
|
|
37.0 |
|
|
|
11.7 |
|
|
|
(48.7 |
) |
|
|
10.3 |
|
|
|
36.7 |
|
Income tax expense |
|
|
2.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.5 |
|
|
|
|
|
|
|
|
Net income (loss) |
|
$ |
23.9 |
|
|
$ |
37.0 |
|
|
$ |
11.7 |
|
|
$ |
(48.7 |
) |
|
$ |
10.3 |
|
|
$ |
34.2 |
|
Less: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (income) loss attributable to predecessor operations |
|
|
(23.9 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(10.3 |
) |
|
|
(34.2 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income allocable to limited partners |
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to unaudited pro forma condensed consolidated financial statements.
6
NOTES TO UNAUDITED DCP MIDSTREAM PARTNERS, LP
PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Basis of Presentation
Unless the context clearly indicates otherwise, references in this report to we, our, us
or like terms refer to DCP Midstream Partners, LP, or Partners. The historical financial
information is derived from our historical consolidated financial statements. The pro forma
adjustments have been prepared as if we acquired the 25% interest in the East Texas Midstream
Business, 100% of Midstreams 40% interest in Discovery, and the Swap, on March 31, 2007, for the
balance sheet, and on January 1, 2004, for the statements of operations. Midstream entered into the
Swap in March 2007; therefore, the pro forma adjustments related to the Swap only impact the
balance sheet as of March 31, 2007 and the statement of operations for the three months ended March
31, 2007. Since this is a transaction between entities under common control, the pro forma
financial statements are combined on an as if pooling basis. Accordingly, the historic cost of
the acquired assets and liabilities are carried forward.
The pro forma condensed consolidated financial statements reflect the following transactions:
|
|
|
the borrowing of $244.7 million under our existing credit facility to finance
the acquisition; |
|
|
|
|
the acquisition of the 25% interest in the East Texas Midstream Business and
100% of Midstreams 40% interest in Discovery; |
|
|
|
|
the acquisition of the Swap. In March 2007, Midstream entered into a crude oil
swap, a non-trading derivative, to mitigate a portion of the price risk from July
2007 through December 2012. The Swap is for approximately 1.9 million barrels at
$66.72 per barrel; and |
|
|
|
|
the distribution to Midstream of the aggregate consideration consisting of
approximately $244.7 million in cash, including $2.3 million for net working
capital, and the issuance of 620,404 common units and 12,661 general partner
equivalent units. The general partner equivalent units were issued in order for
Midstream to maintain its 2% general partner interest. |
As a result of this transaction, Partners omnibus services agreement with Midstream increased
by $0.2 million annually for incremental general and administrative expenses, subject to annual
increases in the Consumer Price Index.
Note 2. Pro Forma Adjustments and Assumptions
|
(a) |
|
Reflects adjustments to eliminate 100% of the activity of the East Texas
Midstream Business and Discovery, as Partners will account for these investments under
the equity method. |
|
|
(b) |
|
Reflects $244.7 million of proceeds to us from borrowings under our existing
credit facility. |
7
|
(c) |
|
Reflects the acquisition from Midstream of 25% of the East Texas Midstream
Business, 100% of Midstreams 40% interest in Discovery, and the Swap, along with the
related distribution to Midstream of the aggregate consideration. This acquisition
will be recorded at historical cost as it is considered a transaction between entities
under common control. The consideration was allocated as follows, subject to customary
purchase price adjustments ($ in millions): |
|
|
|
|
|
Cash consideration |
|
$ |
244.7 |
|
Common units |
|
|
27.0 |
|
General partner equivalent units |
|
|
0.6 |
|
|
|
|
|
Aggregate consideration |
|
|
272.3 |
|
Historical cost of interest in the East Texas Midstream Business |
|
|
(50.7 |
) |
Historical cost of interest in Discovery |
|
|
(116.1 |
) |
Historical cost of the Swap |
|
|
2.9 |
|
|
|
|
|
Adjustment to net parent equity for excess consideration |
|
$ |
108.4 |
|
|
|
|
|
The historical cost of the interest in Discovery includes the net difference between
the carrying amount of Discovery and the underlying equity of Discovery, or the Outside
Basis. As of March 31, 2007, the Outside Basis in Discovery was a deficit of $47.4
million.
The historical cost of the Swap consists of a non-current asset of $0.3 million, a
current liability of $1.5 million and a long-term liability of $1.7 million.
The adjustment to net parent equity was allocated to the common units. The value of the
common units and general partner equivalent units above was based on the average market
value of Partners common units for the ten days prior to the announcement of this
transaction.
|
(d) |
|
Reflects losses from non-trading derivative activity affiliates associated
with the acquisition of the Swap. |
|
|
(e) |
|
Reflects the increase in interest expense associated with the incremental debt
for the acquisition described in (b) above. The following presents the weighted
average interest rates used to calculate the increase in interest expense for the
respective periods ($ in millions): |
|
|
|
|
|
|
|
Weighted |
|
|
Average |
|
|
Interest |
|
|
Rate |
Three months ended March 31, 2007 |
|
|
5.71 |
% |
Year ended December 31, 2006 |
|
|
5.71 |
% |
Year ended December 31, 2005 |
|
|
4.71 |
% |
Year ended December 31, 2004 |
|
|
2.79 |
% |
The effect of a 0.125% variance in interest rates on pro forma interest expense would
have been approximately $0.3 million annually.
8
|
(f) |
|
Reflects the increase in earnings from equity method investments associated
with the acquisition of the 40% interest in Discovery. The increase in earnings from
equity method investments includes amortization of the Outside Basis in Discovery. The
following presents the increase in earnings from equity method investments for the
respective periods ($ in millions): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months |
|
|
|
|
|
|
Ended March 31, |
|
|
Year Ended December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
Our share of Discoverys historical net income |
|
$ |
2.6 |
|
|
$ |
12.0 |
|
|
$ |
6.9 |
|
|
$ |
3.9 |
|
Amortization of the Outside Basis |
|
|
1.2 |
|
|
|
4.9 |
|
|
|
3.9 |
|
|
|
3.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in earnings from equity method investments |
|
$ |
3.8 |
|
|
$ |
16.9 |
|
|
$ |
10.8 |
|
|
$ |
7.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(g) |
|
Reflects the increase in earnings from equity method investments associated
with the acquisition of the 25% interest in the East Texas Midstream Business. |
Note 3. Pro Forma Net Income Per Limited Partner Unit
Our net income is allocated to the general partner and the limited partners, including the
holders of the subordinated units, in accordance with their respective ownership percentages, after
giving effect to incentive distributions paid to the general partner.
Securities that meet the definition of a participating security are required to be considered
for inclusion in the computation of basic earnings per unit using the two-class method. Under the
two-class method, earnings per unit is calculated as if all of the earnings for the period were
distributed under the terms of the partnership agreement, regardless of whether the general partner
has discretion over the amount of distributions to be made in any particular period, whether those
earnings would actually be distributed during a particular period from an economic or practical
perspective, or whether the general partner has other legal or contractual limitations on its
ability to pay distributions that would prevent it from distributing all of the earnings for a
particular period.
These required disclosures do not impact our overall net income or other financial results;
however, in periods in which aggregate net income exceeds certain distribution levels, it will have
the impact of reducing net income per limited partner unit, or LPU. This result occurs as a larger
portion of our aggregate earnings, as if distributed, is allocated to the incentive distribution
rights of the general partner, even though we make distributions on the basis of available cash and
not earnings. In periods in which our aggregate net income per unit does not exceed certain
distribution levels, there is no impact on our calculation of earnings per LPU. During the three
months ended March 31, 2007 and the years ended December 31, 2006 and 2005, our pro forma aggregate
net income per unit exceeded certain distribution levels, and as a result we allocated $1.4
million, $7.2 million and $1.9 million, respectively, in additional earnings to the general
partner.
Basic and diluted net income per LPU is calculated by dividing limited partners interest in
pro forma net income, less pro forma general partner incentive distributions as described above, by
the pro forma weighted average number of outstanding LPUs during the period, assuming each of the
following were outstanding since January 1, 2005:
|
|
|
10,357,143 common units and 7,142,857 subordinated units issued in connection with
our December 2005 initial public offering; and |
|
|
|
|
620,404 common units issued in connection with this transaction. |
9
The following table illustrates our calculation of pro forma net income per LPU ($ in
millions, except per unit amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months |
|
|
|
|
|
|
Ended March 31, |
|
|
Year Ended December 31, |
|
|
|
2007 |
|
|
2006 |
|
|
2005 |
|
Pro forma net income |
|
$ |
12.0 |
|
|
$ |
47.7 |
|
|
$ |
58.3 |
|
Less: net loss (income) attributable to predecessor
operations |
|
|
|
|
|
|
2.3 |
|
|
|
(52.1 |
) |
|
|
|
|
|
|
|
|
|
|
Pro forma net income attributable to partnership |
|
|
12.0 |
|
|
|
50.0 |
|
|
|
6.2 |
|
Less: general partner interest in net income |
|
|
(0.3 |
) |
|
|
(1.0 |
) |
|
|
(0.1 |
) |
|
|
|
|
|
|
|
|
|
|
Pro forma limited partners interest in net income |
|
|
11.7 |
|
|
|
49.0 |
|
|
|
6.1 |
|
Less: additional earnings allocated to general partner |
|
|
(1.4 |
) |
|
|
(7.2 |
) |
|
|
(1.9 |
) |
|
|
|
|
|
|
|
|
|
|
Pro forma net income available to limited partners |
|
$ |
10.3 |
|
|
$ |
41.8 |
|
|
$ |
4.2 |
|
|
|
|
|
|
|
|
|
|
|
Pro forma net income per LPU basic and diluted |
|
$ |
0.56 |
|
|
$ |
2.31 |
|
|
$ |
0.23 |
|
|
|
|
|
|
|
|
|
|
|
10