In a deal that may signal the shape of things to come in the power industry, Miller & Martin lawyers in Atlanta have helped Texas-based electricity marketer Nations Power set up a first-of-its-kind pre-paid power agreement with a major energy wholesaler.
From the companies' perspective, said Miller & Martin members A. Josef DeLisle and Chris Schwab, the deal is unique because getting customers to pay in advance for their electricity reduces the financial risk to the energy marketer and wholesaler. Under a traditional financial model, the companies essentially float the consumer a month's worth of power before sending a bill—which the consumer may or may not pay.
"The wheels fall off of that particular model in an economy like this, when people can't afford to pay their bills," said Schwab, who also worked on the deal with member Kenneth F. Antley and associate Christopher T. Henderson. "People can't afford deposits, and marketers won't enter into a normal billing cycle with someone who can't put down a deposit."
From the consumers' perspective, DeLisle and Schwab said, the transaction is also useful because it offers customers with low incomes or poor credit who can't afford high up-front deposits the option of skipping the deposit and pre-paying for their power.
"It's very interesting when it comes to the legal transaction, as well, because it's not something the traditional powerbrokers are used to seeing. They're used to seeing large deposits in order to, in essence, give you financing to purchase power," Schwab said. "The collateral of Nations Power increases directly with every pre-paid customer because the cash is in the bank before the customer ever buys the power."
Texas has a deregulated electricity market, DeLisle and Schwab explained, comparable to Georgia's deregulated gas market in which Atlanta Gas Light is the wholesaler of gas, owning all the pipes and infrastructure to produce and transport it. Customers are able to select from a variety of marketers such as Gas South or Scana, which purchase the gas from Atlanta Gas Light, then sell it to consumers.
Houston-based Nations Power, a startup launched about 1 ½ years ago that had no customers when the deal was signed, according to Schwab, is that kind of marketer for the Texas electrical market. Its wholesale partner in this transaction, which DeLisle asked not to be named, is a top 10 company in its industry and was represented by Jones Day and its in-house counsel.
"You don't generally get top-10 energy companies to get in bed with someone who has zero dollars on day one, but they see the value, and their credit risk is reduced because of the way this is set up," Schwab said.
DeLisle said the wholesaler's willingness to ink an agreement with Nations Power was enough to satisfy state regulators of his client's viability. "It's difficult for [Nations Power] to garner on their own behalf the creditworthiness … so what they did is essentially partner with this global energy business to provide the credit backing to satisfy the regulators," he said.
Schwab explained that the deal was built around an International Swaps and Derivatives Association agreement. "That's a universally standard form, and then there's a host of standards and schedules that go along with it that you can customize," he said.
One of the interesting and unusual aspects of the deal, DeLisle and Schwab said, was creating a cash flow system that protected the creditors yet left funds—which, because they are pre-paid, still belong to the customer until they're used to pay for real-time power use—still accessible to the consumer.
In the end, Schwab said, the lawyers created something akin to an escrow account for pre-paid funds, plus a system that lets money automatically flow from that account as it is used to pay for power into other accounts owned by the marketer and wholesaler. "Eventually," he said, "there's a cash basin at the bottom for our client to have its operating money and its profits."
The deal's value, the lawyers said, is unclear because it rises with each customer Nations Power signs up, and it is too early to say how many that will be. Texas has about a million "smart meters"—which provide for remote tracking of power and are necessary for the pre-paid system to work—and expects to have about six million in the next few years, so the potential is significant.
"There was a great deal of negotiating, a good deal of drafting," Schwab said. "I think everyone was excited by this, including the power provider, because it was novel and they could see it being a model in the future in the gas and water industries."