Exhibit 3.3
LIMITED LIABILITY COMPANY AGREEMENT
OF
MIDWEST GENERATION, LLC
EFFECTIVE AS OF JULY 12, 1999
THE MEMBERSHIP INTEREST REPRESENTED BY THIS LIMITED
LIABILITY
COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 OR UNDER ANY OTHER
APPLICABLE SECURITIES LAWS.
LIMITED LIABILITY COMPANY AGREEMENT
OF
MIDWEST GENERATION, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of
Midwest Generation LLC (the "Company") dated as of this 12th day of July, 1999,
by Edison Mission Midwest Holdings Co. as the sole member of the Company (the
"Member").
RECITAL
The Member has formed the Company as a limited liability
company under the laws of the State of Delaware and desires to enter into a
written agreement, in accordance with the provisions of the Delaware Limited
Liability Company Act and any successor statute, as amended from time to time
(the "Act"), governing the affairs of the Company and the conduct of its
business.
ARTICLE I -- THE LIMITED LIABILITY COMPANY
1.1 FORMATION. The Member has previously formed the Company as
a limited liability company pursuant to the provisions of the Act. A Certificate
of Formation for the Company (the "Certificate of Formation") has been filed in
the Office of the Secretary of State of the State of Delaware in conformity with
the Act. Express authorization is hereby given to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for the
exclusive purpose of executing the Certificate of Formation of the Company which
has been filed in the Office of the Secretary of State of the State of Delaware.
1.2 NAME. The name of the Company shall be "Midwest Genera
tion, LLC" and its business shall be carried on in such name with such
variations and changes as the Board (as hereinafter defined) shall determine or
deem necessary to comply with requirements of the jurisdictions in which the
Company's operations are conducted.
1.3 BUSINESS PURPOSE; POWERS. The Company is formed for the
purpose of acquiring and holding stocks and engaging in any lawful business,
purpose or activity for which limited liability companies may be formed under
the Act. The Company shall possess and may exercise all the powers and
privileges granted by the Act or by any other law or by this Agreement,
together with any
powers incidental thereto, so far as such powers and privileges are necessary
or convenient to the conduct, promotion or attainment of the business
purposes or activities of the Company.
1.4 REGISTERED OFFICE AND AGENT. The location of the
registered office of the Company shall be One Financial Place, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company's Registered Agent at
such address shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
1.5 TERM. Subject to the provisions of Articles 7 and 9 below,
the Company shall have perpetual existence.
1.6 PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be at such location as the Board may, from time to
time, select.
1.7 TITLE TO COMPANY PROPERTY. Legal title to all property of
the Company shall be held and vested and conveyed in the name of the Company and
no real or other property of the Company shall be deemed to be owned by the
Member individually. The Common Interests (as hereinafter defined) of the Member
shall constitute personal property.
1.8 BUSINESS TRANSACTIONS OF THE MEMBER WITH THE COMPANY. In
accordance with Section 18-107 of the Act, the Member may transact business with
the Company and, subject to applicable law, shall have the same rights and
obliga tions with respect to any such matter as a person who is not a member.
1.9 FISCAL YEAR. The fiscal year of the Company (the "Fiscal
Year") for financial statement purposes shall end on December 31 of each year.
ARTICLE II -- THE MEMBER
2.1 THE MEMBER. The name and address of the Member is as
follows:
Name Address
---- -------
Edison Mission Midwest Holdings Co. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2.2 NO MANAGEMENT BY MEMBER. The management of the business
and affairs of the Company shall be vested in whole in the Board in accordance
with Article II. Except with respect to the execution and filing of the
Certificate of Formation, as otherwise specified provided by this Agreement or
required by the Act, the Member shall not be an agent of the Company or have any
authority to act for or bind the Company. Except as expressly provided in this
Agreement, the Member shall not have voting, approval or consent rights.
2.3 MEMBER MEETINGS.
(a) ACTIONS BY THE MEMBER; MEETINGS. The Member may approve a
matter or take any action required to be, or which may be, taken by the Member
at a meeting or without a meeting by the written consent of the Member pursuant
to subparagraph (b) below. Meetings of the Member may be called at any time by
the Member.
(b) ACTION BY WRITTEN CONSENT. Any action required to be, or
which may be, taken by the Member may be taken by the Member without a meeting
if authorized by the written consent of the Member. In no instance where action
is authorized by written consent of the Member will a meeting of the Member be
called or notice be given. However, a copy of the action taken by written
consent shall be filed with the records of the Company.
2.4 LIABILITY OF THE MEMBER. All debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and the
Member shall not be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a member.
2.5 ADMISSION OF MEMBERS. New members shall be admitted only
upon the approval of the Member.
ARTICLE III -- THE BOARD
3.1 MANAGEMENT BY BOARD OF MANAGERS. Subject to such matters
which are expressly reserved hereunder or under the Act to the Member for
decision, the business and affairs of the Company shall be managed by a board of
managers (the "Board"). The Board may delegate the management of the day-to-day
operation of the business of the corporation provided that the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised under the
ultimate direction of the Board. Without prejudice to such general powers,
but subject to the same limitations, it is hereby expressly declared that the
Board shall have the following powers in addition to the other powers
enumerated in this Agreement:
(a) To select and remove all the other officers, agents and
employ ees of the Company, prescribe the powers and duties for them as may not
be incon sistent with law, with the Certificate of Formation or this Agreement,
fix their compensation and require from them security for faithful service.
(b) To conduct, manage and control the affairs and business of
the Company and to make such rules and regulations therefor not inconsistent
with law, or with the Certificate of Formation or this Agreement, as they may
deem best.
(c) To adopt, make and use a corporate seal and to alter the
form of such seal from time to time as in their judgment they deem best.
(d) To authorize the issuance of Common Interest of the
Company from time to time, upon such terms and for such consideration as may be
lawful.
(e) To borrow money and incur indebtedness for the purposes of
the Company, and to cause to be executed and delivered therefor, in the
Company's name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
(f) The Board shall consist of one (1) to seven (7)
individuals (the "Managers"), the exact number of Managers to be determined from
time to time by resolution of the Board. The initial Board shall consist of one
manager, who shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
3.2 MEETINGS OF THE BOARD.
(a) The Board shall meet at such times as may be necessary for
the Company's business on at least two (2) days' prior written notice of the
time and place of such meeting. A majority of the Managers shall constitute a
quorum for the transaction of business by the Board.
(b) Notice of any Board meeting may be waived by any Manager
before or after such meeting.
(c) All actions of the Board shall require the affirmative
vote of a
majority of the Managers.
(d) Meetings of the Board may be conducted in person or by
conference telephone facilities and each Manager shall be entitled to
participate in any meeting of the Board by telephone. Any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting
if such number of Managers sufficient to approve such action pursuant to the
terms of this Agreement consent thereto in writing. The writing or writings
effectuating such written consent must be filed with the minutes of proceedings
of the Board.
3.3 POWER TO BIND COMPANY. No Manager (acting in his capacity
as such) shall have any authority to bind the Company to any third party with
respect to any matter except pursuant to a resolution expressly authorizing such
action which resolution is duly adopted by the Board by the affirmative vote
required for such matter pursuant to this Agreement.
3.4 OFFICERS AND RELATED PERSONS. Subject to the terms of any
employment agreements to which the Company is a party, the Board shall have the
authority to appoint and terminate officers of the Company and retain and
terminate employees, agents and consultants of the Company and to delegate such
duties to any such officers, employees, agents and consultants as the Board
deems appropriate, including the power, acting individually or jointly, to
represent and bind the Com pany in all matters, in accordance with the scope of
their respective duties.
ARTICLE IV -- THE OFFICERS
4.1 MANAGEMENT BY OFFICERS. The officers of the Company
shall be a President, Vice President, a Controller, a Secretary and a
Treasurer. The Company may also have, at the discretion of the Board, a
Chairman of the Board, one or more additional Vice Presidents, a Chief
Operating Officer, a General Manager, General Counsel, one or more Assistant
General Counsels, one or more Assistant Controllers, one or more Assistant
Secretaries, one or more Assistant Treasurers, and such other officers as may
be appointed in accordance with the provisions of Section 4.5 of this
Agreement
4.2 ELECTION.
The officers of the Company, except such officers as may be
elected or appointed in accordance with the provisions of Section 4.5 or Section
4.6 of this Agreement, shall be chosen annually by, and shall serve at the
pleasure of the Board,
and shall hold their respective offices until their resignation, removal, or
other disqualification from service, or until their respective successors
shall be elected.
4.3 ELIGIBILITY OF CHAIRMAN OF THE BOARD OR PRESIDENT.
No person shall be eligible for the office of Chairman of the
Board, if there shall be such an officer, or President unless such person is a
member of the Board of the Company; any other officer may or may not be a member
of the Board.
4.4 REMOVAL AND RESIGNATION.
Any officer may be removed, either with or without cause, by
the Board at any time or by any officer upon whom such power of removal may be
conferred by the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to
the Company, but without prejudice to the rights, if any, of the Company under
any contract of employment to which the officer is a party. Any such resignation
shall take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
4.5 APPOINTMENT OF OTHER OFFICERS.
The Board may appoint such other officers as the business of
the Company may require, each of whom shall hold office for such period, have
such authority, and perform such duties as are provided in this Agreement or as
the Board may from time to time determine. Notwithstanding the job title for
such person, no employee or other representative of the Company shall be an
officer of the Company unless elected by the Board.
4.6 VACANCIES.
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in this Agreement for regular election or appointment to such office.
4.7 SALARIES.
The salaries of the Chairman of the Board, if any, President,
General Manager, if any, Vice Presidents, Controller, Treasurer and Secretary of
the Com pany shall be fixed by the Board. Salaries of all other officers shall
be approved
from time to time by the chief executive officer.
4.8 CHAIRMAN OF THE BOARD.
The Chairman of the Board, if there shall be such an officer,
shall preside at all meetings of the Board, and shall exercise such powers and
perform such duties as from time to time may be conferred upon or assigned to
him by the Board or this Agreement.
4.9 PRESIDENT.
Subject to such supervisory powers, if any, as may be given by
the Board to the Chairman of the Board, if there be such an officer, the
President shall be the chief executive officer of the Company and has, subject
to the control of the Board, general supervision, direction, and control of the
business and affairs of the Company. The President shall preside at all meetings
of the shareholders and, in the absence of the Chairman of the Board or if there
be none, at all meetings of the Board. The President has the general powers and
duties of management usually vested in the office of president of a corporation
and has such other powers and duties as may be prescribed by the Board or this
Agreement. The President may designate from time to time the titles which the
employees or other representatives of the Company shall use, including the
appointment of agent for service of process. Without limiting the foregoing, the
President may designate one or more employees as regional vice-presidents.
4.10 VICE PRESIDENT.
In the absence or disability of the President, the Vice
Presidents in order of their rank shall perform all the duties of the President
and when so acting shall have all the powers of, and be subject to all the
restrictions upon the President. The Board may establish the order of rank of
the Vice Presidents. In the absence of such ranking, the Vice Presidents shall
be ranked as follows: Executive Vice Presi dent (if any), Senior Vice President
(if any). Vice Presidents holding identical titles shall be ranked in order of
election to that office by the Board.
4.11 CHIEF OPERATING OFFICER.
The Chief Operating Officer, if there shall be such an
officer, must be a vice president of the Company and shall be subject to the
exercise of the general powers of supervision, direction and control of the
business and officers of the Company by the President, and supervise the
operations of the Company.
4.12 GENERAL MANAGER.
The General Manager, if there shall be such an officer, must
be a vice president of the Company and, subject to the exercise of the general
powers of supervision, direction and control by the President, or the Chief
Operating Officer, if any, shall manage the operations of the Company. In the
absence of the Chief Operating Officer, the General Manager shall perform all
the duties of the Chief Operating Officer and when so acting shall have all the
powers of, and be subject to, all the restrictions upon the Chief Operating
Officer.
4.13 GENERAL COUNSEL.
The General Counsel shall be the chief consulting officer of
the Company in all legal matters and, subject to the President, shall have
control over all matters of legal import concerning the Company.
4.14 ASSISTANT GENERAL COUNSEL.
One or more Assistant General Counsels, if any, shall
perform such of the duties of the General Counsel as the General Counsel may
designate, and in the absence or disability of the General Counsel, any
Assistant General Counsel, in order of election to that office by the Board,
shall perform the duties of the General Counsel.
4.15 CONTROLLER.
The Controller shall be the chief accounting officer of the
corporation and shall have control over all accounting matters concerning the
corporation and shall perform such other duties as the President or General
Manager shall designate.
4.16 SECRETARY.
The Secretary shall keep or cause to be kept, at the principal
executive office and such other place as the Board may order, a book of minutes
of all meetings of the Members, the Board, and its committees.
The Secretary shall give, or cause to be given, notice of all
the meetings of the Members and of the Board and any committees thereof required
by this Agreement or by law to be given, shall keep the seal of the Company in
safe custody, shall from time to time issue such secretarial certificates as may
be required
for the business and affairs of the Company, and shall have such
other general powers and duties of management usually vested in the office of
secretary of a corporation and as may be prescribed by the Board, the President
or this Agreement.
4.17 ASSISTANT SECRETARY.
One or more Assistant Secretaries, if any, shall perform such
of the duties of the Secretary as the Secretary shall designate, and in the
absence or disabil ity of the Secretary, any Assistant Secretary, in order of
election to that office by the Board, shall perform the duties of the Secretary.
4.18 SECRETARY PRO TEMPORE.
At any meeting of the Board or of the Member from which the
Secretary and Assistant Secretary are absent, a Secretary pro tempore may be
appointed by the Board as appropriate and act.
4.19 TREASURER.
The Treasurer is the chief financial officer of the Company
and shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the Company.
The books of account shall at all times be open to inspection by any manager.
The Treasurer shall deposit, or cause to be deposited, all
moneys and other valuables in the name and to the credit of the Company with
such depositories as may be designated by the Board pursuant to Section 5.2. The
Treasurer shall disburse or cause to be disbursed, the funds of the Company as
may be ordered by the President or the General Manager, shall render to the
President, the General Manager or the Board, whenever they request it, an
account of all transactions as Treasurer and of the financial condition of the
Company, and shall have such other powers and perform such other duties as may
be prescribed by the Board, or this Agreement.
4.20 ASSISTANT TREASURER.
One or more Assistant Treasurers, if any, shall perform such
of the duties of the Treasurer as the Treasurer shall designate, and in the
absence or disability of the Treasurer, any Assistant Treasurer, in order of
election to that office by the Board, shall perform the duties of the Treasurer.
4.21 PERFORMANCE OF DUTIES.
Officers shall perform the duties of their respective offices
as stated in this Agreement, and such additional duties as the Board shall
designate.
ARTICLE V -- CAPITAL STRUCTURE AND CONTRIBUTIONS
5.1 CAPITAL STRUCTURE. The capital structure of the Company
shall consist of one class of common interests (the "Common Interests"). All
Common Interests shall be identical with each other in every respect. Initially,
the Member shall own one hundred (100) Common Interests.
5.2 CAPITAL CONTRIBUTIONS. From time to time, the Board may
determine that the Company requires capital and may request the Member to make
capital contribution(s) in an amount determined by the Board. A capital account
shall be maintained for the Member, to which contributions and profits shall be
credited and against which distributions and losses shall be charged.
5.3 CERTIFICATES.
(a) GENERAL. The Member shall be entitled to a certificate
repre senting its interest in the Company, in such form as may from time to time
be prescribed by the Board. Such certificate shall be signed by a Manager or an
officer on such Managers behalf, which signature may be a facsimile thereof. In
case the Manager or officer who has signed or whose facsimile signature has been
placed on such certificate shall have ceased to be a Manager or an officer, as
the case may be, before such certificate is issued by the Company with the same
effect as if such person were a Manager or an officer at the time of its issue.
(b) APPLICATION OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE.
The Company hereby irrevocably elects that all membership interest in the
Company shall be securities governed by Article 8 of the Uniform Commercial Code
in effect in the State of Delaware. Each certificate evidencing membership
interest in the Company shall bear the following legend:
"This Certificate evidences an interest in Midwest Generation, LLC and
shall be a security for purposes of Article 8 of the Uniform Com
mercial Code in effect in the State of Delaware."
This provision shall not be amended, and no such purported amendment to this
provision shall be effective until all outstanding certificates have been
surrendered
for cancellation.
ARTICLE VI -- PROFITS, LOSSES AND DISTRIBUTIONS
6.1 PROFITS AND LOSSES. For financial accounting and tax
purposes, the Company's net profits or net losses shall be determined on an
annual basis in accordance with the manner in which profit or loss is determined
for Federal income tax purposes. In each year, profits and losses shall be
allocated entirely to the Member.
6.2 DISTRIBUTIONS. The Board shall determine profits available
for distribution and the amount, if any, to be distributed to the Member, and
shall authorize and distribute on the Common Interests, the determined amount
when, as and if declared by the Board. The distributions of the Company shall be
allocated entirely to the Member.
6.3 WITHHOLDING TAXES. The Company is authorized to
withhold from distributions to the Member, or with respect to allocations to
the Member, and to pay over to a Federal, state or local government, any
amounts required to be withheld pursuant to the Internal Revenue Code of
1986, as amended (the "Code"), or any provisions of any other Federal, state
or local law. Any amounts so withheld shall be treated as having been
distributed to the Member pursuant to this Article 6 for all purposes of this
Agreement, and shall be offset against the current or next amounts otherwise
distributable to the Member.
ARTICLE VII -- ACCOUNTS
7.1 BOOKS. The Board shall cause to be maintained complete
and accurate books of account of the Company's affairs at the Company's
principal place of business. Such books shall be kept on such method of
accounting as the Board shall select. The Company's accounting period shall
be as determined by the Board.
7.2 REPORTS. The books of account of the Company shall be
closed after the close of each calendar year, and there shall be prepared and
sent to the Member a statement of the profits and losses of the Company for that
period.
7.3 FEDERAL TAX MATTERS. The Member shall be the Tax Matters
Member, who shall be considered the tax matters partner for purposes of Section
231
of the Code. The Tax Matters Member shall cause to be prepared and shall
sign all tax returns of the Company and monitor any governmental tax authority
in any audit that such authority may conduct of the Company's books and records
or other documents.
7.4 TAX TREATMENT. The Company has filed a timely election
under Treasury Regulation Section 301 7701-3(c)(1)(i) to be treated as a
corporation for income tax purposes.
ARTICLE VIII -- EVENTS OF DISSOLUTION
8.1 The Company shall be dissolved upon the occurrence of any
of the following events (each, an "Event of Dissolution"):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under
Section 18-802 of the Act.
8.2 CONTINUATION. No other event, including the withdrawal,
insolvency, liquidation, disposal, resignation, expulsion or bankruptcy of the
Mem ber shall cause the existence of the Company to terminate.
ARTICLE IX -- TRANSFER OF INTERESTS IN THE COMPANY
The Member may sell, assign, transfer; convey, gift, exchange
or otherwise dispose of any or all of its Common Interests and, upon receipt by
the Company of a written agreement by the person or business entity to whom such
Common Interests are to be transferred agreeing to be bound by the terms of this
Agreement, such person shall be admitted as a member.
ARTICLE X -- TERMINATION
10.1 LIQUIDATION. In the event that an Event of Dissolution
shall occur, then the Company shall be liquidated and its affairs shall be wound
up. All proceeds from such liquidation shall be distributed in accordance with
the provisions of Section 18-804 of the Act, and all Common Interests in the
Company shall be cancelled.
10.2 FINAL ACCOUNTING. In the event of the dissolution of the
Company, prior to any liquidation, a proper accounting shall be made to the
Member from the date of the last previous accounting to the date of dissolution.
10.3 DISTRIBUTION IN KIND. All or any portion of the Company's
assets may be distributed in kind to the Member in the event the Board
determines that it is in the best interest of the Company.
10.4 CANCELLATION OF CERTIFICATE. Upon the completion of the
winding up of the Company and the distribution of the Company's assets, the
Company shall be terminated and the Member shall cause the Company to execute
and file a Certificate of Cancellation in accordance with Section 18-203 of the
Act.
ARTICLE XI -- EXCULPATION AND INDEMNIFICATION
11.1 EXCULPATION. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, none of the Member, or any Managers, officers, directors, stockholders,
partners, employees, representatives or agents of any of the foregoing, nor any
Manager, officer, employee, representative or agent of the Company or any of its
affiliates (individually, a "Covered Person" and, collectively, the "Covered
Persons") shall be liable to the Company or any other person for any act or
omission (in relation to the Company, this Agreement, any related document or
any transaction or investment contemplated hereby or thereby) taken or omitted
by a Covered Person in the reasonable belief that such act or omission is in or
is not contrary to the best interests of the Company and is within the scope of
authority granted to such Covered Person by the Agreement, provided such act or
omission does not constitute fraud, willful misconduct, bad faith, or gross
negligence.
11.2 INDEMNIFICATION. To the fullest extent permitted by law,
the Company shall indemnify and hold harmless each Covered Person from and
against any and all losses, claims, demands, liabilities, expenses, judgments,
fines, settle ments and other amounts arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative or investigative
("Claims"), in which the Covered Person may be involved, or threatened to be
involved, as a party or other wise, by reason of its management of the affairs
of the Company or which relates to or arises out of the Company or its property,
business or affairs. A Covered Person shall not be entitled to indemnification
under this Section 11.2 with respect to (i) any Claim with respect to which such
Covered Person has engaged in fraud, willful misconduct, bad faith or gross
negligence or (ii) any Claim initiated by such
Covered Person unless such Claim (or part thereof) (A) was brought to enforce
such Covered Person's rights to indemnification hereunder or (B) was
authorized or consented to by the Board. Expenses incurred by a Covered
Person in defending any Claim shall be paid by the Company in advance of the
final disposition of such Claim upon receipt by the Company of an undertaking
by or on behalf of such Covered Person to repay such amount if it shall be
ultimately determined that such Covered Person is not entitled to be
indemnified by the Company as authorized by this Section 11.2.
11.3 AMENDMENTS. Any repeal or modification of this Article XI
by the Member shall not adversely affect any rights of such Covered Person
pursuant to this Article XI, including the right to indemnification and to the
advancement of expenses of a Covered Person existing at the time of such repeal
or modification with respect to any acts or omissions occurring prior to such
repeal or modification.
ARTICLE XII -- AMENDMENT TO AGREEMENT
Amendments to this Agreement and to the Certificate of
Formation shall be approved in writing by the Member. An amendment shall become
effective as of the date specified in the approval of the Member or if none is
specified, as of the date of such approval or as otherwise provided in the Act.
ARTICLE XIII -- GENERAL PROVISIONS
13.1 NOTICES. Unless otherwise specifically provided in this
Agreement, all notices and other communications required or permitted to be
given hereunder shall be in writing and shall be (i) delivered by hand, (ii)
delivered by a nationally recognized commercial overnight delivery service,
(iii) mailed postage prepaid by first class mail in any such case directed or
addressed to the address set forth below or (iv) transmitted by facsimile
transmitted to:
If to the Member, to:
Edison Mission Midwest Holdings Co.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Such notices shall be effective: (a) in the case of hand deliveries when
received; (b) in the case of an overnight delivery service, on the next business
day after being
placed in the possession of such delivery service, with delivery
charges prepaid; (c) in the case of mail, seven (7) days after deposit in the
postal system, first class mail, postage prepaid; and (d) in the case of
facsimile notices, when electronic indication of receipt is received. Any party
may change its address and telecopy number by written notice to the other given
in accordance with this Section 13.1.
13.2 CONSTRUCTION PRINCIPLES. As used in this Agreement words
in any gender shall be deemed to include all other genders. The singular shall
be deemed to include the plural and vice versa. The captions and article and
section headings in this Agreement are inserted for convenience of reference
only and are not intended to have significance for the interpretation of or
construction of the provi sions of this Agreement.
13.3 SEVERABILITY. If any provision or clause of this
Agreement is held to be invalid or unenforceable for any reason, such
provision or clause shall be ineffective to the extent of such invalidity or
unenforceability; PROVIDED, HOWEVER, that the remaining provisions and
clauses will continue in full force without being impaired or invalidated in
any way unless such invalid or unenforceable provision or clause shall be so
significant as to materially affect the expectations of the Member regarding
this Agreement. Otherwise, any invalid or unenforceable provision or clause
shall be replaced by the Member with a valid provision or clause which most
closely approximates the intent and economic effect of the invalid or
unenforceable provision or clause.
13.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws thereof.
13.5 BINDING EFFECT. This Agreement shall be binding upon, and
inure to the benefit of, the Member.
13.6 ADDITIONAL DOCUMENTS AND ACTS. The Member agrees to
execute and deliver such additional documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions, and conditions of this Agreement and
of the transactions contemplated hereby.
13.7 NO THIRD-PARTY BENEFICIARY. This Agreement is made solely
for the benefit of the Member and no other person shall have any rights,
interest, or claims hereunder or otherwise be entitled to any benefits under or
on account of this Agreement as a third-party beneficiary or otherwise.
13.8 LIMITED LIABILITY COMPANY. The Member intends to form a
limited liability company and does not intend to form a partnership or joint
venture under the laws of the State of Delaware or any other laws, and neither
the Member, or Manager nor any officer shall be a partner or joint venturer of
the other for any purposes, and this Agreement shall not be construed to the
contrary.
IN WITNESS WHEREOF, the undersigned has duly executed this
Agreement as of the day first above written.
EDISON MISSION MIDWEST HOLDINGS CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President