exv10w4






Exhibit 10.4




1st Amendment to the




Amended and Restated Power Purchase Agreement

Between

Consumers Energy Company

And

Midland Cogeneration Venture Limited Partnership




     THIS AMENDMENT NO. 1 to Amended and Restated Power Purchase Agreement herein
termed “Amendment No. 1,” dated as of March 1, 2010, between Consumers Energy
Company, a Michigan corporation, herein called “Consumers,” and Midland Cogeneration
Venture Limited Partnership, herein called “Seller.” Consumers and Seller are
hereinafter sometimes referred to individually as “Party” and collectively as
“Parties” where appropriate.



WITNESSETH:



WHEREAS, Consumers and Seller have entered into an Amended and Restated Power
Purchase Agreement dated June 9, 2008, (the “Agreement”) and



WHEREAS, Consumers currently schedules its purchases of Commercial Energy from the
MC-Facility, and



WHEREAS, Seller has a right to assume the scheduling obligations of deliveries of
electric energy from the MC-Facility per Subsection 7(b) of the Agreement, and



WHEREAS, Subject to MPSC approval, Seller desires to exercise that right.



NOW, THERFORE, in consideration of the mutual covenants and agreements herein set
forth, the Parties hereto agree as follows:





	 	1.	 	Subsection 1(c), definition of Commercial Energy,
delete the second sentence.
	 
	 	2.	 	Subsection 1(v), definition of Point of Delivery,
shall, upon the effective date of Seller’s exercise of its right to
schedule pursuant to Subsection 7(b), be deleted in it’s entirety and
replaced with the following:






     “The billing meters used for financial settlement with MISO. The Point
of Delivery for purposes of the FBT shall be the CONS.MCV.MCV Commercial
Pricing Node or the successor thereof as defined by MISO.”




	 	3.	 	Section 5 shall be deleted in its entirety and replaced
with the following, “5. [THIS SECTION NOT USED].”.




 









 






	 	4.	 	Subsection 7(b) of the Agreement shall be deleted in
its entirety and replaced with the following:
	 
	 	 	 	“7(b) Sellers Right to Schedule
	 
	 	 	 	Seller shall have the right pursuant to this subparagraph to assume the
scheduling obligations, consistent with the safe and prudent operation
of the MC-Facility, of deliveries of electric energy from Consumers,
upon prior written notice to Consumers. Upon the effective date of
Seller’s exercise of the foregoing right, Subsection 7(a) shall not
apply (except that the Parties shall continue to cooperate to maintain
Designated Network Resource status of the MC-Facility for Consumers) and
Seller shall be responsible for the charges assessed and payments made
by MISO with respect to the asset owner of the Commercial Pricing Node
associated with electric energy deliveries under this Agreement. The
effective date of Seller’s exercise of the foregoing right shall be the
fifth business day after the effective date of the 1st
Amendment to this Agreement.
	 
	 	 	 	The following provisions shall be effective upon the effective date of
Seller’s exercise of its right pursuant to this Subsection 7(b):






	 	(i)	 	Seller’s obligation to schedule electric energy
deliveries to Consumers shall use the same scheduling parameters
with respect to offers into the MISO Day-Ahead Energy Markel (as
such term is defined by MISO) that are in effect as of the date
immediately preceding Seller’s notice exercising the above right.
Seller may adjust these parameters based on improvements in the
MISO Market or at the MC-Facility. Seller will notify Consumers of
proposed changes in advance.
	 
	 	(ii)	 	Seller’s delivery of Commercial Energy under
the Agreement shall be measured and effectuated by Financial
Bilateral Transactions (as such term is defined by MISO, “FBT”),
settled in either the Day-Ahead or Real-Time Energy Market in
accordance with Operating Practice 2, between the Parties.
Development of the FBT shall be based on MISO’s published Day-Ahead
Energy Market or Real-Time Energy Market results as modified to
reflect the MC-Facility operating constraints identified in
Operating Practice 4.”






	 	5.	 	Subsection 9(b), paragraph 3, shall be deleted in its
entirety and replaced with the following:
	 
	 	 	 	“For the energy payment associated with variable expenses, Consumers
shall pay Seller the sum of the hourly products of the




 









 







	 	 	 	Commercial Energy
quantity contained in the FBT Schedules and the Cost of Production
determined in accordance with Exhibit B.”
	 
	 	6.	 	This Amendment shall only be effective upon the
satisfactory completion of both of the following conditions;






	 	a.	 	The Parties shall have obtained approval of
this Amendment to the Agreement from the MPSC.
	 
	 	b.	 	MISO has received and acknowledged the Parties’
percentage change of the MC-Facility such that MISO has confirmed
the Parties’ ownership of the MC-Facility reflects Seller’s sole
ownership in the MISO Commercial Market.






	 	7.	 	Except as expressly amended by this Amendment No. I,
all terms, conditions, representations, and covenants of the Agreement
shall remain in full force and effect.






	 	 	 	IN WITNESS WHEREOF, the Parties hereto have executed this Amendment
No. 1 to the Agreement effective as of the date above.





	 	 	 	 	 

	CONSUMERS ENERGY COMPANY	 	 
	 
	 	 	 	 
	By:

	 	/s/ W.E. Garrity
 


	 	 
	Name:

	 	W.E. Garrity
	 	 
	Title:

	 	Senior Vice President	 	 
	 
	 	 	 	 
	MIDLAND COGENERATION VENTURE

LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 
	By:

	 	/s/ Gary B. Pasek
 


	 	 
	Name:

	 	Gary B. Pasek
	 	 
	Title:

	 	V.P., General Counsel and Secretary