of the Company’s First Mortgage Bonds, MBFC Series due 2044 (the “Twenty-fourth Series Bonds”) issued under the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 2-B-2 dated as of June 8, 2021 (“Officer’s Certificate No. 2-B-2”), entered into a Thirty-ninth Assignment of Availability Agreement, Consent and Agreement dated as of June 15, 2021 (“Thirty-ninth Assignment of Availability Agreement”) (also substantially in the form of this Agreement), to secure the Twenty-fourth Series Bonds; and (iv) the Company, the System Operating Companies, the Trustee, as trustee for the holders of $52,500,000 aggregate principal amount of the Company’s First Mortgage Bonds, 2022 Credit Agreement Collateral Series due November 6, 2023 (the “Twenty-fifth Series Bonds”) issued under the Original Restated Mortgage as supplemented, including by Officer’s Certificate No. 3-B-3 dated as of June 8, 2021 (“Officer’s Certificate No. 3-B-3”), and the Administrative Agent under that certain $50,000,000 Term Loan Credit Agreement, dated as of May 6, 2022 (the “Term Loan Credit Agreement”), among the Company, as borrower, the lenders party from time to time thereto and Royal Bank of Canada, as Administrative Agent, entered into a Fortieth Assignment of Availability Agreement, Consent and Agreement dated as of May 6, 2022 (“Fortieth Assignment of Availability Agreement”) (also substantially in the form of this Agreement), to secure the Twenty-fifth Series Bonds.
C. The Original Availability Agreement has been amended by the First Amendment thereto dated as of June 30, 1977, the Second Amendment thereto dated June 15, 1981, the Third Amendment thereto dated June 28, 1984, and the Fourth Amendment thereto dated as of June 1, 1989 (the Original Availability Agreement, as so amended and as it may be further amended and supplemented, is hereinafter referred to as the “Availability Agreement”).
D. Unit No. 1 and Unit No. 2 of the Project have been designated by the Company and the System Operating Companies as being subject to the Availability Agreement and as being System Energy Generating Units (as defined in the Availability Agreement) thereunder.
E. The Company seeks to refinance that part of the capital costs related to the Project heretofore financed, and, to that end, the Company has entered into an Underwriting Agreement, dated March 8, 2023, between the Company and the several underwriters set forth in Schedule I thereto, for whom Morgan Stanley & Co. LLC and RBC Capital Markets, LLC are acting as representatives, providing, among other things, for the issue and sale by the Company of $325,000,000 aggregate principal amount of First Mortgage Bonds, 6.00% Series due April 15, 2028 (the “Twenty-sixth Series Bonds”), to be issued under and secured pursuant to the Original Restated Mortgage as supplemented by Officer’s Certificate No. 4-B-4 dated as of March 8, 2023 (“Officer’s Certificate No. 4-B-4”) (the Original Restated Mortgage, as supplemented by Officer’s Certificate No. 1-B-1, Officer’s Certificate No. 2-B-2, Officer’s Certificate No. 3-B-3 and Officer’s Certificate No. 4-B-4, and as the same may from time to time hereafter be amended and supplemented in accordance with its terms, hereinafter referred to as the “Restated Mortgage”).
F. The Company, by this instrument, wishes to (i) provide for the assignment by the Company to the Trustee, for the benefit of the holders of the Twenty-sixth Series Bonds, of certain of the Company’s rights under the Availability Agreement, and (ii) create enforceable rights hereunder in the Trustee, all as hereunder set forth.
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