-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HTNd/E/T66lwhpqzkJeQN/Z+Z9Q3GGEQ6EbGd/EMKZc3UTR/LSbUFXbiYe5PU6K3 WUJsJCIkebV2QKaEZyYwJA== 0000902561-01-500397.txt : 20020413 0000902561-01-500397.hdr.sgml : 20020413 ACCESSION NUMBER: 0000902561-01-500397 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20011213 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEWPOWER HOLDINGS INC CENTRAL INDEX KEY: 0001119307 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 522208601 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-59949 FILM NUMBER: 1813066 BUSINESS ADDRESS: STREET 1: NEWPOWER HOLDINGS, INC. STREET 2: ONE MANHATTANVILLE RD., 3RD FLOOR CITY: PURCHASE STATE: NY ZIP: 10577-2100 BUSINESS PHONE: 914-697-2444 MAIL ADDRESS: STREET 1: NEWPOWER HOLDINGS, INC. STREET 2: ONE MANHATTANVILLE RD., 3RD FLOOR CITY: PURCHASE STATE: NY ZIP: 10577-2100 FORMER COMPANY: FORMER CONFORMED NAME: TNPC INC DATE OF NAME CHANGE: 20000713 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CANADIAN IMPERIAL BANK OF COMMERCE /CAN/ CENTRAL INDEX KEY: 0001045520 STANDARD INDUSTRIAL CLASSIFICATION: COMMERCIAL BANKS, NEC [6029] IRS NUMBER: 00000 FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: PO BOX 770, SUITE 4440 STREET 2: BCE PLACE, 181 BAY STREET CITY: TORONTO ONTARIO STATE: A6 BUSINESS PHONE: 2128563612 MAIL ADDRESS: STREET 1: COMMERCE CT CITY: TORONTO ONTARIO STATE: A6 SC 13D 1 sch13d.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. __) NewPower Holdings, Inc. - ------------------------------------------------------------------------------- (Name of Issuer) Class A Warrants to Purchase Common Stock - ------------------------------------------------------------------------------- (Title of Class of Securities) 87260K 10 7 - ------------------------------------------------------------------------------- (CUSIP Number) Antonio Molestina, Esq. Deputy General Counsel/ Director of U.S. Corporate & Banking Department; Senior Vice President 245 Park Avenue, 42nd Floor New York, New York 10167 (917) 332-4307 Copy to: Michael E. Niebruegge, Esq. Mayer, Brown & Platt 700 Louisiana Street, Suite 3600, Houston, Texas 77002 (713) 221-1651 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 3, 2001 - ------------------------------------------------------------------------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of ss 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ] (Continued on following pages) (Page 1 of 9 Pages) Page 2 of 9 CUSIP NO.: 87260K 10 7 SCHEDULE 13D 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Canadian Imperial Bank of Commerce - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) |X| - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Canada - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF None SHARES --------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH None REPORTING --------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER 18,016,400 (See Item 4) --------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,016,400 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.31% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON BK - ------------------------------------------------------------------------------- Page 3 of 9 Item 1. Security and Issuer. This statement on Schedule 13D relates to the common stock of NewPower Holdings, Inc., a Delaware corporation ("Common Stock" and "NewPower" respectively) underlying Class A Warrants exercisable through 2005 at $0.05 per share ("Warrants"). The address of the principal executive office of NewPower is One Manhattanville Rd., 3rd Floor, Purchase, NY 10577-2100. Item 2. Identity and Background. This statement is being filed by Canadian Imperial Bank of Commerce ("CIBC"), a bank governed by the Bank Act (Canada). CIBC's principal executive office is located at Commerce Court, Toronto, Ontario, Canada M5L 1A2. CIBC is a financial institution that provides a wide range of services to individuals, corporations and governments throughout Canada and internationally, including commercial banking, investment advisory, mutual fund, broker/dealer and trust services. To the best knowledge of CIBC as of the date hereof, the name, business address, present principal occupation or employment and citizenship of each executive officer and director of CIBC and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth on Schedule I hereto. The information contained in Schedule I is incorporated herein by reference. During the last five years, neither CIBC nor, to the best knowledge of CIBC, any of its executive officers or directors listed in Schedule I hereto has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. See Item 4 below. Item 4. Purpose of Transaction. CIBC is agent for a syndicate of sixteen financial institutions (consisting of Canadian Imperial Bank of Commerce, SANPAOLO IMI, S.p.A., BNP PARIBAS, First Union National Bank, Bayerische Landesbank, Banco Bilbao Vizcaya Argentaria, National Australia Bank Limited, National Westminster Bank Plc (Greenwich NatWest), Sumitomo Mitsui Banking Corporation, Credit Agricole Indosuez, Wachovia Bank NA, ABN AMRO Bank N.V., Royal Bank of Canada, TD Securities (USA) Inc., Bank Hapoalim and Lloyds TSB Bank plc) that have made loans to a Delaware business trust, Hawaii I 125-0 Trust (the "Trust"), the primary assets of which are Class B member interests in three Delaware limited liability companies, McGarret I, L.L.C., McGarret II, L.L.C. and McGarret III, L.L.C. (the "LLCs"). No single lending institution (together with its affiliates) accounts for as much as 16% of the lending syndicate's loans to the Trust. The principal assets of the LLCs are the Warrants. In connection with these loans, CIBC and its affiliate, CIBC Inc., are parties to Sales Agency Agreements with the LLCs, Enron Energy Services, LLC and Enron North America Corp. Pursuant to the Sales Agency Agreements, CIBC was automatically appointed Sales Agent for the LLCs for the purpose of selling the Warrants as a result of Enron North America's failure to make certain required payments on December 3, 2001. The Sales Agency Agreement provides that the appointment of the Sales Agent shall terminate upon the earliest to occur of: (i) the sale of the Warrants; (ii) the 60th day after the date of the appointment, if the Sales Agent fails to use commercially reasonable efforts to effect the sale of the Warrants within such 60 day period (it being understood that such sale Page 4 of 9 need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Sales Agent ceases to use commercially reasonable efforts to effect the disposition of the Warrants. This filing shall not be deemed an admission that CIBC or any of its affiliates is the beneficial owner of any of the Warrants for purposes of Section 13(d) of the Securities Exchange Act of 1934 or otherwise. Other than acting as Sales Agent as described above, CIBC has no current plans or proposals that relate to or would result in (i) the acquisition or disposition of Common Stock; (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving NewPower or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of NewPower or any of its subsidiaries; (iv) any change in the present board of directors or management of NewPower, including any current plans or proposals to change the number or term of directors or to fill any existing vacancies on the board of directors of NewPower; (v) any material change in the present capitalization or dividend policy of NewPower; (vi) any other material change in NewPower's business or corporate structure; (vii) any changes in NewPower's charter, by-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of NewPower by any other person; (viii) causing a class of equity securities of NewPower to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (ix) causing a class of equity securities of NewPower to become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or (x) any action similar to any of those enumerated in clauses (i) through (ix) of this sentence. Item 5. Interest in Securities of the Issuer. (a) - (b) CIBC, as Sales Agent, has the power to direct the disposition of Warrants representing the rights to acquire 18,016,400 shares of Common Stock. As of November 10, 2001, there were 62,749,812 shares of Common Stock outstanding and 64,419,200 warrants (including the Warrants). If the Warrants were exercised, the Common Stock obtained would represent 22.31% of the outstanding shares of Common Stock (based upon 80,766,212 shares of Common Stock deemed outstanding for purposes of this calculation). The Warrants are non-voting securities, and CIBC has no right to vote or direct the voting of the underlying Common Stock. (c) CIBC has not effected any transactions in Warrants or shares of Common Stock in the past 60 days. (d) The LLCs have the right under the Sales Agency Agreements to receive the proceeds of any sale of the Warrants. The LLCs must immediately distribute substantially all of the proceeds to the Trust for application in accordance with the Trust agreement, including repayment of the loans. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. The Sales Agency Agreements direct the appointment of certain entities as Sales Agent for the Warrants in certain circumstances, including, among other things, the appointment of CIBC as Sales Agent in the event that Enron North America Corp. fails to make payments due on December 3, 2001 to the Trust. Subsequent to appointment as Sales Agent, the Sales Agent is entitled, on behalf of the LLCs, to negotiate the sale of all part of the Warrants, provided that the Sales Agent must act in a commercially reasonable manner. Under the Sales Agency Agreements, the proceeds of any such sale are to be paid directly to the LLCs. See also Item 4 above. Page 5 of 9 Item 7. Material to be Filed as Exhibits. Exhibits 1. Sales Agency Agreement dated October 17, 2001 among McGarret I, L.L.C., Enron Energy Services, LLC, Enron North America Corp., CIBC Inc. and Canadian Imperial Bank of Commerce. 2. Sales Agency Agreement dated October 17, 2001 among McGarret II, L.L.C., Enron Energy Services, LLC, Enron North America Corp., CIBC Inc. and Canadian Imperial Bank of Commerce. 3. Sales Agency Agreement dated October 17, 2001 among McGarret III, L.L.C., Enron Energy Services, LLC, Enron North America Corp., CIBC Inc. and Canadian Imperial Bank of Commerce. Page 6 of 9 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. December 13, 2001 ----------------------------------------------------- (Date) /s/ Ronald E. Spitzer ----------------------------------------------------- (Signature) Ronald E. Spitzer, Assistant General Manager ----------------------------------------------------- (Name/Title) Page 7 of 9 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF CIBC The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of CIBC. Except as indicated below, each such person is a Canadian citizen, and the business address of each such person is Commerce Court, Toronto, Ontario, Canada M5L 1A2. Board of Directors - ------------------ Name and Title - -------------- Douglas G. Bassett Chairman, Windward Investments (a personal investment holding company) 55 St. Clair Avenue West, Suite 260 Toronto, Ont.M4V 2Y7 Also Director of various companies Jalynn H. Bennett President, Jalynn H. Bennett and Associates, Ltd. (a consulting firm) Suite 303 247 Davenport Road Toronto, Ont. M5R 1J9 Hon. Conrad M. Black Chairman and Chief Executive Officer, Argus Corporation Limited (an international publishing holding company), The Ravelston Corporation Limited, Hollinger Inc., Southam Inc., Hollinger International Inc. and Telegraph Group Limited. 10 Toronto Street Toronto, Ont. M5C 2B7 Also Director of various companies Pat M. Delbridge President, PDA Partners, Inc. (an issues management and environmental strategic planning company) and Pat Delbridge Associates Inc. 362 Dupont Street Toronto, Ont. M5R 1V9 William L. Duke Self-Employed Farmer P.O. Box 242 21 Broadway Ave. Redvers, Sask. SOC 2HO Ivan E. H. Duvar President and Chief Executive Officer of MIJAC Inc. (a private investment company) Maritime Centre, 1505 Barrington St. P.O. Box 880 Station Central RPO Halifax, N.S. B3J 2W3 Also Director of various companies William A. Etherington Senior Vice-President and Group Executive, Sales and Distribution, IBM Corporation (an information technology hardware, software and services company) 1133 Westchester Avenue White Plains, N.Y. 10604 A. L. Flood Director, Noranda Inc. and Talisman Energy Inc. CCN-26 Toronto, Ont. M5L 1A2 Page 8 of 9 Margot A. Franssen President, The Body Shop (a chain of retail stores) 33 Kern Road Don Mills, Ont. M3B 1S9 R. D. Fullerton Director, Hollinger Inc., Westcoast Energy Inc., George Weston Limited, Asia Satellite Telecommunications Co. Ltd. and IBM Canada Ltd. CCW-36 Toronto, Ont. M5L 1A2 Hon. James A. Grant Partner, Stikeman Elliot (a firm of barristers and solicitors) Suite 39001155 Rene Levesque Boulevard West Montreal, Quebec H3B 3V2 Albert E. P. Hickman Chairman and President, Hickman Motors Limited (an automotive retailer), and Chairman of the Hickman Group of Companies 85 Kenmount Rd. P.O. Box 8340 St. John's, Nfld. A1B 3N7 Also Director of various companies John S. Hunkin Chairman and Chief Executive Officer Chairman and Chief Executive Officer, Canadian Imperial Bank of Commerce Also Director of various companies Marie- Josee Kravis Senior Fellow, Hudson Institute Inc. (an economics research institute) Hudson Institute Inc. 625 Park Avenue New York, N.Y.10021 Also Director of various companies W. Darcy McKeough Chairman, McKeough Supply Inc. (a wholesale plumbing and heating company); Chairman and President, McKeough Investments Ltd. 30 Dover St. Chatham, Ont. N7L 1S6 Also Director of various companies Arnold Naimark Principal, Naimark Consulting 730 William Avenue, Suite 230 Winnipeg, Man. R3E 3J7 Also Director of various companies Michael E. J. Phelps Chairman and Chief Executive Officer, Westcoast Energy Inc. (a diversified energy company) 1333 West Georgia Street Vancouver, B.C.V6E 3K9 Also Director of various companies Charles Sirois Chairman and Chief executive Officer, Telesystem Ltd. (a private holding company) 1000, rue de La Gauchetiere ouest, 25th Flr. Montreal, Quebec H3B 4W5 Also Director of various companies Stephen G. Snyder President and Chief Executive Officer, TransAlta Corporation (an energy company) 110-12th Avenue S.W. Box 1900, Station M Calgary, Alberta T2P 2M1 Also Director of various companies Page 9 of 9 W. Galen Weston Chairman of George Weston Limited (a food and merchandising company), and Chairman, Loblaw Companies Limited 22 St. Clair Avenue East Toronto, Ont. M4T 2S3 Also Director of various companies Executive Officers Who Are Not Directors - ----------------------------------------- W. C. Fox Vice-Chairman, Treasury and Balance Sheet Management, Canadian Imperial Bank of Commerce D. J. Kassie Vice-Chairman, CIBC World Markets Inc. I. David Marshall Vice-Chairman, Electronic Commerce Technology & Operations, Canadian Imperial Bank of Commerce G. T. McCaughey Senior Executive Vice-President, Wealth Management, Canadian Imperial Bank of Commerce B. M. Cassidy Senior Executive Vice President, Canadian Imperial Bank of Commerce R. A. Lalonde Senior Executive Vice President, Canadian Imperial Bank of Commerce R. M. Mark Senior Executive Vice President, Canadian Imperial Bank of Commerce Michael Pederson Senior Executive Vice President, Retail and Small Business Banking, Canadian Imperial Bank of Commerce Richard E. Venn Senior Executive Vice President, Canadian Imperial Bank of Commerce EX-1 3 ex-1.txt Exhibit 1 SALES AGENCY AGREEMENT This Sales Agency Agreement dated October 17, 2001 ("Sales Agency Agreement") is made between (i) McGarret I, L.L.C. (the "Company"), (ii) Enron Energy Services, LLC (the "Sponsor"), (iii) Enron North America Corp. (the "Swap Counterparty"), (iv) CIBC Inc. (the "Series Certificate Holder") and (v) Canadian Imperial Bank of Commerce (the "Agent"). This Sales Agency Agreement shall be effective immediately on the drawdown of the Series Tranche with respect to Series McGarret S. Recitals: -------- 1. Hawaii I 125-0 Trust, a Delaware business trust (the "Trust"), Canadian Imperial Bank of Commerce, as Agent, and the Lenders named therein have entered into that certain Facility Agreement dated November 20, 2000 (as the same may be amended, modified or supplemented from time to time, the "Facility Agreement"). 2. The principal asset owned by Series McGarret S of the Trust is a Class B Member Interest in the Company and the principal asset owned by the Company is a special warrant for the purchase of 6,766,400 shares of common stock in TNPC, Inc., a Delaware corporation (the "Asset"). The Asset was assigned to the Company pursuant to the Asset Assignment, which is attached hereto as Exhibit A, and incorporated herein by reference. 3. It is now the intention of the parties hereto that the Company shall appoint the Series Certificate Holder, the Swap Counterparty and the Agent as the Company's sales agents for the purpose of selling the Asset, in each case on the terms and conditions of this Sales Agency Agreement. Operative Provisions -------------------- 1. Defined Terms. In this Sales Agency Agreement, including the Recitals, capitalized terms used and not otherwise defined herein have the meanings set forth in the Fourth Amended and Restated Limited Liability Company Agreement of the Company (the "Asset LLC Agreement"). 2. Appointment of Series Certificate Holder as Sales Agent. Subject to the provisions of paragraph 4 below, on the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of a Series Certificate Holder Appointment Event (as defined below), the Company hereby appoints the Series Certificate Holder as its sales agent for the purpose of selling the Asset. The Series Certificate Holder shall not take any action in its capacity as sales agent hereunder unless one of the following events has occurred (each such event, a "Series Certificate Holder Appointment Event"): (a) the Series Certificate Holder has directed the Trust to dispose of its Class B Membership Interest pursuant to the procedures set forth in Section 3.03(b)(iii) of the Asset LLC Agreement and such procedures fail to result in a sale of the Trust's Class B Membership Interest, in which case the Series Certificate Holder's appointment shall commence on the Final Distribution Date; (b) the appointment of the Swap Counterparty as sales agent pursuant to paragraph 3 has been terminated as provided in clause (ii) or (iii) in the last sentence of such paragraph 3, in which case the Series Certificate Holder's appointment shall commence on the date the Swap Counterparty is terminated as sales agent; or (c) the appointment of the Agent as sales agent pursuant to paragraph 4 has been terminated as provided in clause (ii) or (iii) in the last sentence of such paragraph 4, in which case the Series Certificate Holder's appointment shall commence on the date the Agent is terminated as sales agent. Any such appointment of the Series Certificate Holder shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if such appointment is the result of the Series Certificate Holder Appointment Event described in clause (a) above and the Series Certificate Holder fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Series Certificate Holder ceases to use commercially reasonable efforts to effect the disposition of the Asset, if such appointment is the result of the Series Certificate Holder Appointment Event described in clause (a) above. 3. Appointment of Swap Counterparty as Sales Agent. Subject to the provisions of paragraph 4 below, on the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of a Swap Counterparty Appointment Event (as defined below) and provided that the Swap Counterparty has fully performed its obligations under the Total Return Swap Agreement, the Company hereby appoints the Swap Counterparty as its sales agent for the purpose of selling the Asset. The Swap Counterparty shall not take any action in its capacity as sales agent hereunder unless one of the following events has occurred (each such event, a "Swap Counterparty Appointment Event"): (a) the Series Certificate Holder fails to direct the Trust to dispose of its Class B Member Interest pursuant to the procedures set forth in Section 3.03(b)(iii) of the Asset LLC Agreement, in which case the Swap Counterparty's appointment shall commence on the Final Distribution Date; or (b) the appointment of the Series Certificate Holder as sales agent pursuant to paragraph 2 has been terminated as provided in clause (ii) or (iii) of the last sentence of such paragraph 2, in which case the Swap Counterparty's appointment shall commence on the date the Series Certificate Holder is terminated as sales agent. Any such appointment of the Series Certificate Holder shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if such appointment is the result of the Swap Counterparty Appointment Event described in clause (a) above and the Swap Counterparty fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or 2 closed within such 60 day period); and (iii) the date after such 60 day period on which the Swap Counterparty ceases to use commercially reasonable efforts to effect the disposition of the Asset, if such appointment is the result of the Swap Counterparty Appointment Event described in clause (a) above. 4. Appointment of Agent as Sales Agent. On the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of the Agent Appointment Event (as defined below), the Company hereby appoints the Agent as its sales agent for the purpose of selling the Asset. The Agent shall not take any action in its capacity as sales agent hereunder unless the following event has occurred (the "Agent Appointment Event"): the Swap Counterparty fails to pay the Floating Payment (as defined in the Total Return Swap Agreement) to the Trust on any Applicable Payment Date (as defined in the Total Return Swap Agreement), pursuant to the terms of the Total Return Swap Agreement with respect to the Series, in which case the Agent's appointment shall commence on the Final Distribution Date. Any such appointment of the Agent shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if the Agent fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Agent ceases to use commercially reasonable efforts to effect the disposition of the Asset. 5. Sale of Asset; Consent and Agreement by Company. Subject to a Series Certificate Holder Appointment Event, a Swap Counterparty Appointment Event or an Agent Appointment Event having occurred, the Series Certificate Holder, the Swap Counterparty or the Agent, as applicable, shall be entitled, on behalf of the Company, to negotiate a sale of all or part of the Asset in accordance with the terms of this Sales Agency Agreement (a "Sale"); provided that the party directing such Sale shall have an obligation to conduct such sale in a commercially reasonable manner. Further, any such Sale shall be made in compliance with all Laws and in compliance with all legally binding contractual restrictions on transfer of the Asset. The Company hereby irrevocably consents to and shall raise no objections against any such Sale and shall take all necessary and desirable actions in connection with the consummation of any such Sale, including, without limitation, executing such agreements and documents as may be reasonably necessary to effectuate such Sale in the form to be negotiated by the sales agent; provided, however, that no undertakings, covenants, representations or warranties shall be given by the Company in connection with any Sale other than (i) a warranty as to due authorization and execution of the applicable documents, (ii) a warranty that the Company is a limited liability company duly formed, validly existing and in good standing, (iii) a warranty as to title to the Asset and (iv) customary covenants, undertakings, representations or warranties given by sellers in similar transactions. 6. Sales Proceeds. The documentation executed in connection with any Sale shall provide that (i) the sales proceeds shall be paid directly to the Company, and (ii) the Company shall pay all reasonable out-of-pocket costs and expenses incurred by the sales agent and the Company in connection with such sale. The Company shall distribute the sale proceeds in accordance with Section 5.02 of the Asset LLC Agreement. 3 7. Confidentiality. The contents of this Sales Agency Agreement and all other documents relating to this Sales Agency Agreement are confidential and shall not be disclosed to any third party (other than to brokers or market makers in connection with a proposed Sale), except for such information (a) as has become generally available to the public, (b) as may be required or appropriate in any report, statement or testimony submitted to any regulatory body having or claiming to have jurisdiction over the relevant party or to the Federal Reserve Board or the FDIC or similar organizations, (c) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation or proceedings, (d) in order to comply with any Law applicable to the relevant party; provided that such prospective third party agrees to be bound by the confidentiality provisions set forth in this paragraph. 8. Indemnification. The Sponsor will, to the fullest extent permitted under applicable law, indemnify the Series Certificate Holder, the Agent and the Swap Counterparty (as applicable), and their respective officers, directors, employees and agents of each of the foregoing (collectively, the "Sales Agent Indemnitees") from and against all expenses (including reasonable fees and disbursements of counsel), losses and damages which any of the Sales Agent Indemnitees may incur as a consequence of or in connection with the execution or performance of their duties as set forth herein other than any such loss or damage which results from the gross negligence or willful misconduct of such Sales Agent Indemnitee. However, in no event shall the Sponsor have any liability to any Sales Agent Indemnitee hereunder for any loss or prospective profits or any other special, punitive, exemplary, consequential, incidental or indirect losses or damages (in tort, contract or otherwise) unless the relevant Sales Agent Indemnitee is liable for such damage to a third person and is otherwise entitled to indemnification by the Sponsor under this Sales Agency Agreement. 9. No Fees or Commissions. No fee or commission shall be payable by the Company to the Series Certificate Holder, the Swap Counterparty or the Agent in connection with this Sales Agency Agreement or any Sale. 10. Governing Law. This Agreement shall be governed by the law of the State of New York. 4 IN WITNESS WHEREOF, the parties hereto have duly executed this Sales Agency Agreement on the date first before written. McGARRET III, L.L.C. By: Enron Energy Services, LLC, its Managing Member By: /s/ Mark S. Muller -------------------------------- Mark S. Muller, President, New Business Ventures ENRON ENERGY SERVICES, LLC By: /s/ Mark S. Muller --------------------------------- Mark S. Muller, President, New Business Ventures ENRON NORTH AMERICA CORP. By: /s/ Joseph M. Deffner ------------------------------ Joseph M. Deffner, Managing Director and Chief Financial Officer CIBC INC. By: /s/ MaryBeth Ross ------------------------------- MaryBeth Ross Authorized Signatory CANADIAN IMPERIAL BANK OF COMMERCE By: /s/ MaryBeth Ross ------------------------------- MaryBeth Ross Authorized Signatory EX-2 4 exh2.txt Exhibit 2 SALES AGENCY AGREEMENT This Sales Agency Agreement dated October 17, 2001 ("Sales Agency Agreement") is made between (i) McGarret II, L.L.C. (the "Company"), (ii) Enron Energy Services, LLC (the "Sponsor"), (iii) Enron North America Corp. (the "Swap Counterparty"), (iv) CIBC Inc. (the "Series Certificate Holder") and (v) Canadian Imperial Bank of Commerce (the "Agent"). This Sales Agency Agreement shall be effective immediately on the drawdown of the Series Tranche with respect to Series McGarret R. Recitals: -------- 1. Hawaii I 125-0 Trust, a Delaware business trust (the "Trust"), Canadian Imperial Bank of Commerce, as Agent, and the Lenders named therein have entered into that certain Facility Agreement dated November 20, 2000 (as the same may be amended, modified or supplemented from time to time, the "Facility Agreement"). 2. The principal asset owned by Series McGarret R of the Trust is a Class B Member Interest in the Company and the principal asset owned by the Company is a special warrant for the purchase of 8,458,200 shares of common stock in TNPC, Inc., a Delaware corporation (the "Asset"). The Asset was assigned to the Company pursuant to the Asset Assignment, which is attached hereto as Exhibit A, and incorporated herein by reference. 3. It is now the intention of the parties hereto that the Company shall appoint the Series Certificate Holder, the Swap Counterparty and the Agent as the Company's sales agents for the purpose of selling the Asset, in each case on the terms and conditions of this Sales Agency Agreement. Operative Provisions -------------------- 1. Defined Terms. In this Sales Agency Agreement, including the Recitals, capitalized terms used and not otherwise defined herein have the meanings set forth in the Second Amended and Restated Limited Liability Company Agreement of the Company (the "Asset LLC Agreement"). 2. Appointment of Series Certificate Holder as Sales Agent. Subject to the provisions of paragraph 4 below, on the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of a Series Certificate Holder Appointment Event (as defined below), the Company hereby appoints the Series Certificate Holder as its sales agent for the purpose of selling the Asset. The Series Certificate Holder shall not take any action in its capacity as sales agent hereunder unless one of the following events has occurred (each such event, a "Series Certificate Holder Appointment Event"): (a) the Series Certificate Holder has directed the Trust to dispose of its Class B Membership Interest pursuant to the procedures set forth in Section 3.03(b)(iii) of the Asset LLC Agreement and such procedures fail to result in a sale of the Trust's Class B Membership Interest, in which case the Series Certificate Holder's appointment shall commence on the Final Distribution Date; (b) the appointment of the Swap Counterparty as sales agent pursuant to paragraph 3 has been terminated as provided in clause (ii) or (iii) in the last sentence of such paragraph 3, in which case the Series Certificate Holder's appointment shall commence on the date the Swap Counterparty is terminated as sales agent; or (c) the appointment of the Agent as sales agent pursuant to paragraph 4 has been terminated as provided in clause (ii) or (iii) in the last sentence of such paragraph 4, in which case the Series Certificate Holder's appointment shall commence on the date the Agent is terminated as sales agent. Any such appointment of the Series Certificate Holder shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if such appointment is the result of the Series Certificate Holder Appointment Event described in clause (a) above and the Series Certificate Holder fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Series Certificate Holder ceases to use commercially reasonable efforts to effect the disposition of the Asset, if such appointment is the result of the Series Certificate Holder Appointment Event described in clause (a) above. 3. Appointment of Swap Counterparty as Sales Agent. Subject to the provisions of paragraph 4 below, on the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of a Swap Counterparty Appointment Event (as defined below) and provided that the Swap Counterparty has fully performed its obligations under the Total Return Swap Agreement, the Company hereby appoints the Swap Counterparty as its sales agent for the purpose of selling the Asset. The Swap Counterparty shall not take any action in its capacity as sales agent hereunder unless one of the following events has occurred (each such event, a "Swap Counterparty Appointment Event"): (a) the Series Certificate Holder fails to direct the Trust to dispose of its Class B Member Interest pursuant to the procedures set forth in Section 3.03(b)(iii) of the Asset LLC Agreement, in which case the Swap Counterparty's appointment shall commence on the Final Distribution Date; or (b) the appointment of the Series Certificate Holder as sales agent pursuant to paragraph 2 has been terminated as provided in clause (ii) or (iii) of the last sentence of such paragraph 2, in which case the Swap Counterparty's appointment shall commence on the date the Series Certificate Holder is terminated as sales agent. Any such appointment of the Series Certificate Holder shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if such appointment is the result of the Swap Counterparty Appointment Event described in clause (a) above and the Swap Counterparty fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Swap Counterparty ceases to use commercially reasonable efforts to effect the disposition of the Asset, if such appointment is the result of the Swap Counterparty Appointment Event described in clause (a) above. 4. Appointment of Agent as Sales Agent. On the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of the Agent Appointment Event (as defined below), the Company hereby appoints the Agent as its sales agent for the purpose of selling the Asset. The Agent shall not take any action in its capacity as sales agent hereunder unless the following event has occurred (the "Agent Appointment Event"): the Swap Counterparty fails to pay the Floating Payment (as defined in the Total Return Swap Agreement) to the Trust on any Applicable Payment Date (as defined in the Total Return Swap Agreement), pursuant to the terms of the Total Return Swap Agreement with respect to the Series, in which case the Agent's appointment shall commence on the Final Distribution Date. Any such appointment of the Agent shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if the Agent fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Agent ceases to use commercially reasonable efforts to effect the disposition of the Asset. 2 5. Sale of Asset; Consent and Agreement by Company. Subject to a Series Certificate Holder Appointment Event, a Swap Counterparty Appointment Event or an Agent Appointment Event having occurred, the Series Certificate Holder, the Swap Counterparty or the Agent, as applicable, shall be entitled, on behalf of the Company, to negotiate a sale of all or part of the Asset in accordance with the terms of this Sales Agency Agreement (a "Sale"); provided that the party directing such Sale shall have an obligation to conduct such sale in a commercially reasonable manner. Further, any such Sale shall be made in compliance with all Laws and in compliance with all legally binding contractual restrictions on transfer of the Asset. The Company hereby irrevocably consents to and shall raise no objections against any such Sale and shall take all necessary and desirable actions in connection with the consummation of any such Sale, including, without limitation, executing such agreements and documents as may be reasonably necessary to effectuate such Sale in the form to be negotiated by the sales agent; provided, however, that no undertakings, covenants, representations or warranties shall be given by the Company in connection with any Sale other than (i) a warranty as to due authorization and execution of the applicable documents, (ii) a warranty that the Company is a limited liability company duly formed, validly existing and in good standing, (iii) a warranty as to title to the Asset and (iv) customary covenants, undertakings, representations or warranties given by sellers in similar transactions. 6. Sales Proceeds. The documentation executed in connection with any Sale shall provide that (i) the sales proceeds shall be paid directly to the Company, and (ii) the Company shall pay all reasonable out-of-pocket costs and expenses incurred by the sales agent and the Company in connection with such sale. The Company shall distribute the sale proceeds in accordance with Section 5.02 of the Asset LLC Agreement. 7. Confidentiality. The contents of this Sales Agency Agreement and all other documents relating to this Sales Agency Agreement are confidential and shall not be disclosed to any third party (other than to brokers or market makers in connection with a proposed Sale), except for such information (a) as has become generally available to the public, (b) as may be required or appropriate in any report, statement or testimony submitted to any regulatory body having or claiming to have jurisdiction over the relevant party or to the Federal Reserve Board or the FDIC or similar organizations, (c) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation or proceedings, (d) in order to comply with any Law applicable to the relevant party; provided that such prospective third party agrees to be bound by the confidentiality provisions set forth in this paragraph. 8. Indemnification. The Sponsor will, to the fullest extent permitted under applicable law, indemnify the Series Certificate Holder, the Agent and the Swap Counterparty (as applicable), and their respective officers, directors, employees and agents of each of the foregoing (collectively, the "Sales Agent Indemnitees") from and against all expenses (including reasonable fees and disbursements of counsel), losses and damages which any of the Sales Agent Indemnitees may incur as a consequence of or in connection with the execution or performance of their duties as set forth herein other than any such loss or damage which results from the gross negligence or willful misconduct of such Sales Agent Indemnitee. However, in no event shall the Sponsor have any liability to any Sales Agent Indemnitee hereunder for any loss or prospective profits or any other special, punitive, exemplary, consequential, incidental or indirect losses or damages (in tort, contract or otherwise) unless the relevant Sales Agent Indemnitee is liable for such damage to a third person and is otherwise entitled to indemnification by the Sponsor under this Sales Agency Agreement. 9. No Fees or Commissions. No fee or commission shall be payable by the Company to the Series Certificate Holder, the Swap Counterparty or the Agent in connection with this Sales Agency Agreement or any Sale. 10. Governing Law. This Agreement shall be governed by the law of the State of New York. 3 IN WITNESS WHEREOF, the parties hereto have duly executed this Sales Agency Agreement on the date first before written. McGARRET III, L.L.C. By: Enron Energy Services, LLC, its Managing Member By: /s/ Mark S. Muller -------------------------------- Mark S. Muller, President, New Business Ventures ENRON ENERGY SERVICES, LLC By: /s/ Mark S. Muller --------------------------------- Mark S. Muller, President, New Business Ventures ENRON NORTH AMERICA CORP. By: /s/ Joseph M. Deffner ------------------------------ Joseph M. Deffner, Managing Director and Chief Financial Officer CIBC INC. By: /s/ MaryBeth Ross ------------------------------- MaryBeth Ross Authorized Signatory CANADIAN IMPERIAL BANK OF COMMERCE By: /s/ MaryBeth Ross ------------------------------- MaryBeth Ross Authorized Signatory EX-3 5 ex-3.txt Exhibit 3 SALES AGENCY AGREEMENT This Sales Agency Agreement dated October 17, 2001 ("Sales Agency Agreement") is made between (i) McGarret III, L.L.C. (the "Company"), (ii) Enron Energy Services, LLC (the "Sponsor"), (iii) Enron North America Corp. (the "Swap Counterparty"), (iv) CIBC Inc. (the "Series Certificate Holder") and (v) Canadian Imperial Bank of Commerce (the "Agent"). This Sales Agency Agreement shall be effective immediately on the drawdown of the Series Tranche with respect to Series McGarret Q. Recitals: -------- 1. Hawaii I 125-0 Trust, a Delaware business trust (the "Trust"), Canadian Imperial Bank of Commerce, as Agent, and the Lenders named therein have entered into that certain Facility Agreement dated November 20, 2000 (as the same may be amended, modified or supplemented from time to time, the "Facility Agreement"). 2. The principal asset owned by Series McGarret Q of the Trust is a Class B Member Interest in the Company and the principal asset owned by the Company is a special warrant for the purchase of 2,791,800 shares of common stock in TNPC, Inc., a Delaware corporation (the "Asset"). The Asset was assigned to the Company pursuant to the Asset Assignment, which is attached hereto as Exhibit A, and incorporated herein by reference. 3. It is now the intention of the parties hereto that the Company shall appoint the Series Certificate Holder, the Swap Counterparty and the Agent as the Company's sales agents for the purpose of selling the Asset, in each case on the terms and conditions of this Sales Agency Agreement. Operative Provisions -------------------- 1. Defined Terms. In this Sales Agency Agreement, including the Recitals, capitalized terms used and not otherwise defined herein have the meanings set forth in the Second Amended and Restated Limited Liability Company Agreement of the Company (the "Asset LLC Agreement"). 2. Appointment of Series Certificate Holder as Sales Agent. Subject to the provisions of paragraph 4 below, on the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of a Series Certificate Holder Appointment Event (as defined below), the Company hereby appoints the Series Certificate Holder as its sales agent for the purpose of selling the Asset. The Series Certificate Holder shall not take any action in its capacity as sales agent hereunder unless one of the following events has occurred (each such event, a "Series Certificate Holder Appointment Event"): (a) the Series Certificate Holder has directed the Trust to dispose of its Class B Membership Interest pursuant to the procedures set forth in Section 3.03(b)(iii) of the Asset LLC Agreement and such procedures fail to result in a sale of the Trust's Class B Membership Interest, in which case the Series Certificate Holder's appointment shall commence on the Final Distribution Date; (b) the appointment of the Swap Counterparty as sales agent pursuant to paragraph 3 has been terminated as provided in clause (ii) or (iii) in the last sentence of such paragraph 3, in which case the Series Certificate Holder's appointment shall commence on the date the Swap Counterparty is terminated as sales agent; or (c) the appointment of the Agent as sales agent pursuant to paragraph 4 has been terminated as provided in clause (ii) or (iii) in the last sentence of such paragraph 4, in which case the Series Certificate Holder's appointment shall commence on the date the Agent is terminated as sales agent. Any such appointment of the Series Certificate Holder shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if such appointment is the result of the Series Certificate Holder Appointment Event described in clause (a) above and the Series Certificate Holder fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Series Certificate Holder ceases to use commercially reasonable efforts to effect the disposition of the Asset, if such appointment is the result of the Series Certificate Holder Appointment Event described in clause (a) above. 3. Appointment of Swap Counterparty as Sales Agent. Subject to the provisions of paragraph 4 below, on the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of a Swap Counterparty Appointment Event (as defined below) and provided that the Swap Counterparty has fully performed its obligations under the Total Return Swap Agreement, the Company hereby appoints the Swap Counterparty as its sales agent for the purpose of selling the Asset. The Swap Counterparty shall not take any action in its capacity as sales agent hereunder unless one of the following events has occurred (each such event, a "Swap Counterparty Appointment Event"): (a) the Series Certificate Holder fails to direct the Trust to dispose of its Class B Member Interest pursuant to the procedures set forth in Section 3.03(b)(iii) of the Asset LLC Agreement, in which case the Swap Counterparty's appointment shall commence on the Final Distribution Date; or (b) the appointment of the Series Certificate Holder as sales agent pursuant to paragraph 2 has been terminated as provided in clause (ii) or (iii) of the last sentence of such paragraph 2, in which case the Swap Counterparty's appointment shall commence on the date the Series Certificate Holder is terminated as sales agent. Any such appointment of the Series Certificate Holder shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if such appointment is the result of the Swap Counterparty Appointment Event described in clause (a) above and the Swap Counterparty fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Swap Counterparty ceases to use commercially reasonable efforts to effect the disposition of the Asset, if such appointment is the result of the Swap Counterparty Appointment Event described in clause (a) above. 2 4. Appointment of Agent as Sales Agent. On the terms and subject to the conditions of this Sales Agency Agreement and upon the occurrence of the Agent Appointment Event (as defined below), the Company hereby appoints the Agent as its sales agent for the purpose of selling the Asset. The Agent shall not take any action in its capacity as sales agent hereunder unless the following event has occurred (the "Agent Appointment Event"): the Swap Counterparty fails to pay the Floating Payment (as defined in the Total Return Swap Agreement) to the Trust on any Applicable Payment Date (as defined in the Total Return Swap Agreement), pursuant to the terms of the Total Return Swap Agreement with respect to the Series, in which case the Agent's appointment shall commence on the Final Distribution Date. Any such appointment of the Agent shall terminate upon the earliest to occur of: (i) the sale of the Asset; (ii) the 60th day after the Final Distribution Date, if the Agent fails to use commercially reasonable efforts to effect the Disposition of the Asset within such 60 day period (it being understood that such Disposition need not be under contract or closed within such 60 day period); and (iii) the date after such 60 day period on which the Agent ceases to use commercially reasonable efforts to effect the disposition of the Asset. 5. Sale of Asset; Consent and Agreement by Company. Subject to a Series Certificate Holder Appointment Event, a Swap Counterparty Appointment Event or an Agent Appointment Event having occurred, the Series Certificate Holder, the Swap Counterparty or the Agent, as applicable, shall be entitled, on behalf of the Company, to negotiate a sale of all or part of the Asset in accordance with the terms of this Sales Agency Agreement (a "Sale"); provided that the party directing such Sale shall have an obligation to conduct such sale in a commercially reasonable manner. Further, any such Sale shall be made in compliance with all Laws and in compliance with all legally binding contractual restrictions on transfer of the Asset. The Company hereby irrevocably consents to and shall raise no objections against any such Sale and shall take all necessary and desirable actions in connection with the consummation of any such Sale, including, without limitation, executing such agreements and documents as may be reasonably necessary to effectuate such Sale in the form to be negotiated by the sales agent; provided, however, that no undertakings, covenants, representations or warranties shall be given by the Company in connection with any Sale other than (i) a warranty as to due authorization and execution of the applicable documents, (ii) a warranty that the Company is a limited liability company duly formed, validly existing and in good standing, (iii) a warranty as to title to the Asset and (iv) customary covenants, undertakings, representations or warranties given by sellers in similar transactions. 6. Sale Proceeds. The documentation executed in connection with any Sale shall provide that (i) the sales proceeds shall be paid directly to the Company, and (ii) the Company shall pay all reasonable out-of-pocket costs and expenses incurred by the sales agent and the Company in connection with such sale. The Company shall distribute the sale proceeds in accordance with Section 5.02 of the Asset LLC Agreement. 3 7. Confidentiality. The contents of this Sales Agency Agreement and all other documents relating to this Sales Agency Agreement are confidential and shall not be disclosed to any third party (other than to brokers or market makers in connection with a proposed Sale), except for such information (a) as has become generally available to the public, (b) as may be required or appropriate in any report, statement or testimony submitted to any regulatory body having or claiming to have jurisdiction over the relevant party or to the Federal Reserve Board or the FDIC or similar organizations, (c) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation or proceedings, (d) in order to comply with any Law applicable to the relevant party; provided that such prospective third party agrees to be bound by the confidentiality provisions set forth in this paragraph. 8. Indemnification. The Sponsor will, to the fullest extent permitted under applicable law, indemnify the Series Certificate Holder, the Agent and the Swap Counterparty (as applicable), and their respective officers, directors, employees and agents of each of the foregoing (collectively, the "Sales Agent Indemnitees") from and against all expenses (including reasonable fees and disbursements of counsel), losses and damages which any of the Sales Agent Indemnitees may incur as a consequence of or in connection with the execution or performance of their duties as set forth herein other than any such loss or damage which results from the gross negligence or willful misconduct of such Sales Agent Indemnitee. However, in no event shall the Sponsor have any liability to any Sales Agent Indemnitee hereunder for any loss or prospective profits or any other special, punitive, exemplary, consequential, incidental or indirect losses or damages (in tort, contract or otherwise) unless the relevant Sales Agent Indemnitee is liable for such damage to a third person and is otherwise entitled to indemnification by the Sponsor under this Sales Agency Agreement. 9. No Fees or Commissions. No fee or commission shall be payable by the Company to the Series Certificate Holder, the Swap Counterparty or the Agent in connection with this Sales Agency Agreement or any Sale. 10. Governing Law. This Agreement shall be governed by the law of the State of New York. 4 IN WITNESS WHEREOF, the parties hereto have duly executed this Sales Agency Agreement on the date first before written. McGARRET III, L.L.C. By: Enron Energy Services, LLC, its Managing Member By: /s/ Mark S. Muller -------------------------------- Mark S. Muller, President, New Business Ventures ENRON ENERGY SERVICES, LLC By: /s/ Mark S. Muller --------------------------------- Mark S. Muller, President, New Business Ventures ENRON NORTH AMERICA CORP. By: /s/ Joseph M. Deffner ------------------------------ Joseph M. Deffner, Managing Director and Chief Financial Officer CIBC INC. By: /s/ MaryBeth Ross ------------------------------- MaryBeth Ross Authorized Signatory CANADIAN IMPERIAL BANK OF COMMERCE By: /s/ MaryBeth Ross ------------------------------- MaryBeth Ross Authorized Signatory -----END PRIVACY-ENHANCED MESSAGE-----