Exhibit 10.1
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 2
This Asset Purchase Agreement
Amendment No. 2 (the “ Amendment ”) is entered
into as of October 20, 2006, by and among Aquila, Inc., a Delaware
corporation (“ Seller ”), and Mid-Kansas
Electric Company, LLC, a Kansas limited liability company (“
Buyer ”). In addition, each Buyer Party and Guarantor
is executing this Amendment for the purposes set forth in Section 3
hereof.
WHEREAS, Buyer and Seller are
parties to that certain Asset Purchase Agreement, dated as of
September 21, 2005, as amended by that certain Asset Purchase
Agreement Amendment No. 1 dated August 11, 2006 (the “
Asset Purchase Agreement ”), pursuant to which Seller
agreed to sell, transfer and assign to Buyer, and Buyer has agreed
to purchase and assume, substantially all of the assets and
liabilities of the Business (as defined in the Asset Purchase
Agreement) upon the terms and conditions set forth in the Asset
Purchase Agreement, and subject to the conditions set forth in
Article VIII thereof;
WHEREAS, under Article VIII of the
Asset Purchase Agreement, the approval of a Joint Application filed
with the Kansas Corporation Commission for Seller’s transfer
to Buyer of: (i) the Purchased Assets, (ii) Seller’s
certificates of convenience and authority and Seller’s rate
tariffs, and (iii) the operation of the Business, is a condition
each Party’s obligation to effect the Closing;
WHEREAS, the Kansas Corporation
Commission assigned docket number 06-MKEE-524-ACQ to the Joint
Application, and issued a September 13, 2006 Order Adopting
Procedural Schedule in docket 06-MKEE-524-ACQ (the “
Procedural Schedule ”); and
WHEREAS, Seller and Buyer desire to
amend the Asset Purchase Agreement pursuant to Section 11.1 thereof
by deleting and replacing Section 10.1(b) in light of the
Procedural Schedule.
NOW, THEREFORE, in consideration of
the parties’ covenants and agreements set forth herein and
the benefits anticipated by each of the parties hereto as a result
of the matters set forth herein, and intending to be legally bound
hereby, the parties agree as follows:
The terms defined in the preamble
and recitals hereto shall have the respective meanings ascribed
therein. Capitalized terms used but not defined in this Agreement
shall have the mean
