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HomeMy WebLinkAboutOrd 3446 08/21/1984AN ORDINANCE PROVIDING FOR THE FINANCING BY THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS, OF AN INDUSTRIAL PROJECT, AUTHORIZING THE ISSUANCE OF A $2,000,000 INDUSTRIAL REVENUE BOND, SERIES 1984 (TOKO AMERICA, INC. PROJECT) AND CONFIRMING THE SALE THEREOF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREE- MENT, A MORTGAGE AND SECURITY AGREEMENT, AN ASSIGNMENT AND AGREEMENT, A BOND PURCHASE AGREEMENT AND RELATED DOCUMENTS. WHEREAS, the Village of Mount Prospect, Cook County, Illinois (the "Issuer") is a duly constituted and validly existing municipality under Section 6(a) of Article VII of the 1970 Constitution of the State of illinois (the "Issuer',); and WHEREAS, the Issuer, pursuant to Ordinance No. 2925, adopted by its President and Board of Trustees on July 17, 1979, as supplemented and amended (the "Act"), is authorized and empowered to issue its revenue bonds to finance in whole or in part the costs of acquiring land and constructing and equipping industrial buildings, to the end that the Issuer may be able to relieve conditions of unemployment and to encourage the increase of industry and commerce within the Village of Mount Prospect; and WHEREAS, the Issuer, by resolution duly adopted on June 5, 1984, entered into a Memorandum of Agreement with Toko America, Inc., an Illinois corporation (the "Company"), regarding the issuance of its industrial revenue bonds for the purpose of acquiring land and constructing and equipping an industrial building thereon, including related site improvements; and WHEREAS, as a result of negotiations between the Issuer and the Company, contracts have been or will be entered into by the Company for the acquisition of approximately 160,767 square feet of land and the construction thereon of a building of approximately 18,000 square-feet to be owned and operated by the Company as office, warehouse and laboratory facilities (the "Project") and located at 1250 Feehanville Drive, Mount Prospect, Illinois, which Project will be owned by the Company and used by the Company in its business as an importer, assembler and marketer of electronic compo- nents, and will be of the character and will accomplish the purposes provided by the Act; and WHEREAS, pursuant to Section 103(k) of the Internal Revenue Code of 1954, as amended (the "Code"), the President and Board of Trustees of the Issuer held a public hearing relating to the issuance of the Bond hereinafter defined on June 19, 1984, pursuant to notice published in Mount Prospect Herald on June 5, 1984; and WHEREAS, it is proposed that the Issuer shall enter into a Loan Agree- ment, as hereinafter defined, with the Company pursuant to which the Issuer shall lend the Company a sum sufficient, together with other moneys of the Company, to accom- plish the acquisition and construction of the Project, and the Issuer is willing to issue its industrial revenue bond to finance the Project upon terms which shall be sufficient to pay the cost of the acquisition and construction of the Project as evidenced by such industrial revenue bond, all as set forth in the details and provisions of said Loan Agreement; and WHEREAS, it is estimated that the costs of the Proiect, including costs relating to the preparation and issuance of the industrial revenue bond, will be not less than $2,000,000; and WHEREAS, the Proiect will be of the character and will accomplish the purposes provided for by the Act and wilt create additional employment opportunities and encourage the increase of industry and commerce in the Village of Mount Prospect, Illinois; and WHEREAS, tl~e Issuer proposes to sell the industrial revenue bond herein- after authorized and designated "Industrial Revenue Bond, Series 1984 (Toko America, Inc. Project)" upon a negotiated basis to Chemical Bank, New York, New York; and WHEREAS, the Bond is secured by an assignment to the Bank of the Loan Agreement, the Note (as those terms are hereinafter defined) and by an irrevocable letter of credit issued in favor of Chemical Bank by The Saltama Bank, Ltd., a banking corporation duly organized and vaildly existing under the laws of Japan, acting through its duly licensed New York Branch; and WHEREAS, in order to comply with the provisions of the Code with respect to arbitrage, it is neeessary to provide a vehicle for the Temporary investment of proceeds of the bond hereinafter authorized; NOW, THEREFORE, BE IT ORDAINED By the President and Board of Trustees of the Village of Mount Prospect, Cook County, Illinois, AS FOLLOWS: DEFINITIONS Section 1. The following words and terms as used in this Ordinance shall have the following meanings unless the context or use indicates another or different meaning or intent: "Act" means Ordinance No. 2925, duly adopted by the President and Board of Trustees of the Issuer on July 17, 1979, as supplemented and amended. "Agreement" means the Loan Agreement dated as of August 1, 1984, by and between the Issuer and the Company, as from time to time supplemented and amended. "Assignment" means the Assignment and Agreement dated as of August 1, 1984, by and between the Issuer and the Bank, as from time to time supplemented and amended. "Authorized Company Representative" means such person at the time and from time to time designated to act on behalf of the Company by written certificate furnished to the Issuer and the Bank, containing the specimen signature of such person and signed on behalf of the Company by the President, any Vice President, the Treasurer, the Secretary or any Assistant Secretary of the Company. Such cert}ficate may desig- nate an alternate or alternates. "Bank" means Chemical Bank, New York, New York, a banking corporation duly organized and validly existing under the laws of the State of New York, its succes- sors and assigns, and any other registered owner of the Bond. "Bond" means the Bond of the Issuer issued pursuant hereto. "Bond Counsel" means a firm of attorneys of nationally recognized standing on the subject of bonds of states and their political subdivisions. "Bond Fund" means the Village of Mount Prospect, Industrial Revenue Bond Fund (Toko America, Inc. Project) created and established in Section 7 hereof. "Bondholder" means Chemical Bank, as original purchaser of the Bond, its successors and assigns, and any other registered owner of the Bond. "Bond Purchase Agreement" means the Bond Purchase Agreement dated as of August 1, 1984, by and between the Issuer and the Bank, as from time to time supple- mented and amended. "Building" means the building to be constructed on the Land through the use of the proceeds of the Bond, constituting part of the Project. "Code" means the Internal Revenue Code of 1954, as amended. "Company" means Toko America, Inc., a corporation duly organized and validly existing under the laws of the State of Illinois, and any surviving, resulting or transferee corporation as permitted by Section 5.2 of the Agreement. "Construction Fund" means the Village of Mount Prospect, Industrial Reve- nue Bond Construction Fund (Toko America, Inc. Project) created and established in Section 5 hereof. The term "default" means those defaults, exclusive of any period of grace, specified in and defined in Section 11 hereof. "Determination of Taxability" means the occurrence of: (a) the enactment of legislation, the issuance or rendering of a judicial decision or decree, or an order, ruling, regulation or official statement of general ,application of the Department of the Treasury or of the Internal Revenue Service of the United States; (b) the issuance of a written notice of deficiency or other final notice to any Bondholder or former Bondholder or any other action taken by the Department -4- of the Treasury or the Internal Revenue Service of the United States which is not subject to further review or rehearing except by the filing of a petition in the Tax Court of the United States or by other judicial proceeding; (c) the issuance of any public or private ruling or technical procedure by the Department of the Treasury or the Internal Revenue Service of the United States; (d) the Company or any other "principal user" of the Project (or any "rela- ted person" as defined in Section 103(b)(6)(C) of the Code) shall have paid or incurred capital expenditures in an aggregate amount in the Village of Mount Prospect in an amount such as to cause the aggregate face amount of the Bond to exceed the limitations of Section 103(b)(6)(D) of the Code; (e) nationally recognized Bond Counsel shall have advised any Bondholder or former Bondholder in writing either that interest on the Bond is currently includ- ible in gross income for Federal income tax purposes or that such Bond Counsel cannot render its opinion, without materially qualifying the same, to the effect that interest on the Bond is currently excludible from gross income for Federal income tax purposes; or (f) the occurrence of any other act, event or circumstance; with or having the effect that the interest income on the Bond is includible in the gross income for Federal income tax purposes of any Bondholder or former Bondholder (other than for a period during which such Bondholder or former Bondholder was the Company or any other "substantial user" of the facility as defined in Section 103 of the Code or a "related person"). Such Determination of Taxability shall be deemed to have occurred upon the date as of which interest on the Bond became so includible or, if such date shall not be so determinable, the date of the occurrence of the particular Determination of Taxability. 15- "Equipment" means the equipment to be acquired by the Company through the use of the proceeds of the Bond and installed in the Building as a part of the Project. The term "event of default" means those events specified in and defined in Section 11 hereof. The words "hereof", "herein", "hereunder" and other words of similar import refer to this Ordinance as a whole. "Issuer" means the Village of Mount Prospect, Cook County, Illinois, a political subdivision and a home rule unit of government under Section 6(a) of Article VII of the 1970 Constitution of the State of Illinois, and any successor body to the duties and functions of the Issuer. "Land" means the real estate more particularly described in Exhibit A attached to and made a part of the Agreement, which constitutes a part of the Proiect and on which the Building is located. "Letter of Credit" means the irrevocable Letter of Credit or any substitute letter of credit in the form attached to the Agreement as Exhibit D, with appropriate insertions, to be issued by the Letter of Credit Bank to the Bank as additional security for the Bond. "Letter of Credit Bank" means The Saitama Bank, Ltd.~ a banking corpo- ration duly organized and validly existing under the laws of Japan, acting through its duly licensed New York Branch. "Mortgage" means the Mortgage and Security Agreement dated as of August 1, 1984, by and between the Company, the Issuer and the Letter of Credit Bank, as from time to time supplemented and amended. "Note" means the Promissory Note of the Company made payable to the Issuer pursuant to Section 4.2(a) of the Agreement and endorsed by the Issuer to the Bank, in order to evidence the obligation of the Company to repay the loan made there- under, payments on which Note are provided to be sufficient to pay the principal of, premium, if any, and interest on the Bond. -3- amended. "Ordinance" means this Ordinance, as from time to time supplemented and "Prime Rate" means the per annum rate of interest from time to time announced by Chemical Bank as its prime rate at its principal office in New York, New York. Changes in the Prime Rate occurring in the period commencing five business days prior to an interest payment date shall not be taken into account in calculating the amount of interest due on such interest payment date. "Project" means the Land, Building and Equipment to be constructed and acquired by the Company and financed with the proceeds of the Bond, as defined and described in the Agreement. AUTHORIZATION OF THE PROJECT Section 2. That in order to relieve conditions of unemployment and to encourage the increase of industry and commerce in the Village of Mount Prospect, Illinois, the Project shall be and is hereby approved and authorized to be financed as described herein. The action of the Village Clerk in publishing notice of the aforesaid public hearing as required by Section 103(k) of the Code is hereby ratified, approved and confirmed. The estimated cost of the construction of the Project is not less than $2,225,000, of which $2,000,000 will be provided by the issuance of the Bond hereinafter authorized and the loan of the proceeds thereof to the Company. It is hereby found and declared that the financing of the Project and the use thereof by the Company as herein- before and hereinafter provided is necessary to accomplish the public purposes described in the preamble hereto, and that in order to further secure the Bond, the assignment of the right, title and interest of the Issuer in and to the Agreement, the Note and the Mortgage (except certain indemnification and expense payments), pursuant to the Assign- ment, the mortgaging of and granting of a security interest in the Project pursuant to the Mortgage, and the provision of further security for the prompt payment of the principal of and interest on the Bond pursuant to the Letter of Credit, are necessary and proper. AUTHORIZATION AND PAYMENT OF BOND Section 3. That for the purpose of financing a portion of the cost of the Project there shall be and there is hereby authorized to be issued by the Issuer its Indus- trial Revenue Bond, Series 1984 (Toko America, Inc. Project) in the principal sum of $2,000,000, to be dated the date of its delivery, lettered R and numbered 1, payable to Chemical Bank, or registered assigns, maturing as to principal in thirty-two (32) quar- terly installments of $62,500 commencing November 1, 1986 to and including August 1, 1994, except as the provisions hereinafter set forth with respect to redemption prior to maturity may become applicable thereto, and bearing interest on the unpaid principal amount of the Bond from the date of the Bond (except upon a Determination of Taxabil- ity and certain other events as hereinafter provided) at a rate equal to sixty-five per cent (65%) of the Prime Rate (the "Tax Exempt Rate"), which Tax Exempt Rate shall change when and as the Prime Rate changes, payable on November 1, 1984 and on the first day of each February, May, August and November thereafter until the Bond is fully paid. interest shall be computed on the basis of a calendar year consisting of 360 days and charged on the basis of the actual number of days elapsed. In the event of an increase or decrease in the Corporate Tax Rate after the issuance of the Bond, the Tax Exempt Rate shall be decreased (in the case of an increase in the Corporate Tax Rate) or increased (in the ease of a decrease in the Corporate Tax Rate) to the Adjusted Tax Exempt Rate, effective as of the date of such change in the Corporate Tax Rate. For purposes hereof (i) "Adjusted Tax Exempt Rate" shall mean the product of the Tax Exempt Rate times a fraction (expressed as a decimal) the numerator of which is the number one minus the Corporate Tax Rate in effect following such change referred to in the preceding sentence and the denominator of which is the number one minus the Corporate Tax Rate in effect on the date of issuance of the Bond; and (ii) "Corporate Tax Rate" shall mean the highest marginal statutory rate of Federal income tax imposed on corporations. In the event of a Determination of Taxability the interest rate on the Bond shall be increased from the Tax Exempt Rate applicable at the time the interest on the Bond first became taxable to a rate equal to the Prime Rate plus one and one half per cent (1~%) per annum (the "Initial Taxable Rate"), effective as of the date that interest on the Bond first became taxable, or if such date is not determinable then the date of the occurrence of the Determination of Taxability, which Initial Taxable Rate shall change when and as the Prime Rate changes. On the date of the first quarterly interest payment following the Determination of Taxability, in addition to the regular quarterly interest payment, a payment shall be made for all past additional interest at the Initial Taxable Rate due from the date that interest on the Bond first became taxable, or if such date is not determinable then the date of the occurrence of the Determination of Taxability, to the date of the first quarterly interest payment date following the Determination of Taxability, together with any income taxes, interest, penalties, fines, additions to tax or other amounts levied as a result of the Determination of Taxability imposed on the Bondholder or any former Bondholder by reason of its failure to include the interest paid on the Bond in its Federal income tax return. The provisions of this paragraph shall be self-executing without the need for any modification or amendment of the Bond. If any person shall have owned the Bond on or after the date that interest on the Bond first becomes taxable, or if such date is not determinable then the date of the occurrence of the Determination of Taxability, but transferred the Bond prior to the quarterly interest payment date on which such additional interest is to be paid, then any such prior owner of the Bond shall be paid an amount equal to the difference between the interest accruing on the Bond at the Initial Taxable Rate and the interest accruing on the Bond at the Tax Exempt Rate for the period during which such owner owned the Bond from the date that such interest became taxable (or the date of the occurrence of the Determi- nation of Taxability) to the date of transfer, plus ali income taxes, interest, penalties, fines, additions to tax or other amounts levied or assessed as a result of the Determi- -9- nation of Taxability. The covenants contained in this paragraph shall survive the final payment of the prlncipal of, premium, if any, and interest on the Bond. If the Bond remains outstanding after the date of the first quarterly inter- est payment following the Determination of Taxability, the remaining unpaid principal installments shall bear interest from such date at the Prime Rate (the "Taxable Rate"). In the event of delay or default in the payment of principal or interest on the Bond hereunder and during the continuation of such delay or default, the Bond shall bear interest at a rate equal to the Prime Rate, plus one and one half per cent (1½%) per armum. The principal of, premium, if any, and interest on the Bond shall be payable to the Bank in lawful money of the United States of America in Federal or other immedi- ately available funds at the princlpal office of the Bank in the City of New York, New York. The Bank shall note on the Payment Record attached as Schedule A to the Bond the date and amount of payment of the principal then being paid (whether at maturity or upon acceleration or call for redemption) and interest then being paid and of principal theretofore paid (whether at maturity or upon acceleration or call for redemption) and interest theretofore paid and not yet noted thereon and, upon request of the Company or the Issuer, the Bond shall be available for inspection by the Company or the Issuer during regular banking hours at the principal office of the Bank in the City of New York, New York. At least five (5) business days in advance of each date on which interest shall be payable on the Bond the Bank shall provide the Issuer and the Company with written notice of the Prime Rate in effect from time to time during the applicable interest payment period and the amount of ~nterest to be due and payable on the Bond on such interest payment date. The Bank or other owner of the Bond shall be entitled to certain additional payments from the Company in the event that any payment of interest or principal or -10- any amount of interest or indebtedness attributable directly or indirectly to the purchase or carrying of the Bond is subject to or affected by any preference tax, any minimum tax, any excess profits tax or any other Federal tax, as further described in and pursuant to Section 4.2(c) of the Agreement. The Bond, together with interest thereon, shall be a limited obligation of the Issuer secured by the Agreement, the Note made payable to the the Issuer and endorsed to the Bank, a mortgage on and a security interest in the Project pursuant to the Mortgage, an assignment and pledge of the right, title and interest of the Issuer in and to the Agreement, the Note and the Mortgage (except certain indemnification and expense payments) pursuant to the Assignment and by the Letter of Credit, and shall be payable solely from the revenues and income derived from the Agreement and the Note (except to the extent paid out of moneys attributable to the Bond proceeds, the income from the temporary investment thereof or payments made pursuant to or derived from the Mortgage or the Letter of Credit), and shall be a valid claim of the owner thereof only against the Bond Fund and other moneys held by the Bank and the revenues and income derived from the Agreement and the Note (except as provided aforesaid), which revenues and income shall be used for no other purpose than to pay the principal of, premium, if any, and interest on the Bond, except as may be otherwise expressly author- ized in this Ordinance and in the Agreement. The Bond and the obligation to pay interest thereon do not now and shall never constitute an indebtedness or a loan of cred}t of the Issuer, the State of Illinois or any political subdivision thereof, or a charge against the general credit or taxing powers of any of them, within the meaning of any constitutional or statutory provision, but sl~all be secured as aforesaid, and shall be payable solely from the revenues and income derived from the Agreement and the Note (except as provided aforesaid). The owner of the Bond shall not have the r}ght to compel the taxing power of the Issuer, the State of Illinois or any political subdivision thereof to pay the principal of, premium, if any or interest on the Bond° -i1- Principal installments of the Bond shall be subject to prior redemption in whole, or in part in inverse order of maturity, at the option of the Issuer from any avail- able funds, including the prepayment of the Note or a portion thereof at the option of the Company pursuant to Section 7.1 of the Agreement on any interest payment date, in the amount Of $62,500 or any whole multiple thereof, at a redemption price of 100% of the principal amount thereof being redeemed plus accrued interest thereon to the date fixed for redemption, plus a premium for each amount so redeemed in accordance with the following schedule: Redemption Date Premium November 1, 1984 - August 1, 1985 5% November 1, 1985 - August 1, 1986 3% November 1, 1986 - August 1, 1987 1% November 1, 1987 and thereafter none Outstanding principal installments of the Bond shah be further subject to redemption prior to maturity, on any interest payment date, in whole, at the option of the Issuer, from any available funds including prepayment of the Note, upon a Determi- nation of Taxability or upon substantial damage to or destruction of the Project, at a redemption price of par plus accrued interest to the date fixed for redemption. Upon receipt by the Issuer and the Bank of at least thirty (30) days' prior written notice from the Company specifying a date for the prior redemption of the Bond (or a portion thereof), the Bank shall, to the extent that amounts are or become available therefor in the Bond Fund, apply such amounts in the Bond Fund on behalf of the Issuer to the prior redemption of the Bond (or a portion thereof) in accordance with the preceding paragraphs. All principal amounts of the Bond designated for prior redemption will cease to bear interest on the date of such redemption. The Bond shall be prepared in typewritten form. The Bond shall be signed by the President of the Issuer by her manual signature, and attested by the manual signature of the Village Clerk of the Issuer, and the official seal of the Issuer shall be affixed thereto, tn case any official whose signa- -12- ture shall appear on the Bond shall cease to be such official before the delivery of the Bond, such signature shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery. The Bond shall be transferable only as a whole as provided herein. Upon surrender of the Bond for transfer at the principal office of the Issuer, duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his attorney duly author}zed in writing, the Issuer shall execute and deliver in the name of the transferee a substitute fully registered Bond of the same series, in the denomination of the unpaid principal amount thereof, with the same outstanding maturity and interest rate, dated the first day of the February, May, August or November next preceding the date of its issuance, or if issued on the first day of a February, May, August or November, as of such date. The Issuer shall cause books for the registration and for the transfer of the Bond as provided in this Ordinance to be kept by the Village Clerk of the Issuer. The Village Clerk, as Bond Registrar, shall keep and maintain, on behalf of the Issuer, registration books ~ndicating the name and address of the owner from time to time of the Bond. The Village Clerk shall not be required to transfer the Bond during the period of ten (10) days next preceding any interest payment date of the Bond nor to transfer the Bond after the mailing of notice calling the Bond (or a portion thereof) for prior redemption has been given as herein provided. The person in whose name the Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of, premium, if any, or interest on the Bond shall be made only to or upon the written order of the registered owner thereof or his legal representative, but such registration may be changed as hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon the Bond to the extent of the sum or sums so paid. In each case the Issuer shall require the payment by the owner of the Bond requesting transfer of any tax or other governmental charge required to be paid with respect to such transfer. -13- In the event the Bond is mutilated, lost, stolen or destroyed, the Issuer may execute a substitute Bond of like date, tenor and maturity as the Bond mutilated, lost, stolen or destroyed; provided that, in the case the Bond is mutilated, the mutilated Bond shall first be surrendered to the Issuer, and in the case the Bond is lost, stolen or des- troyed, there shall be first furnished to the Issuer evidence of such loss, theft or destruc- tion satisfactory to the Issuer, together with indemnity satisfactory to the Issuer. The Issuer shall duplicate on the Payment Record of the substitute Bond replacing the muti- lated, lost, stolen or destroyed Bond all payments of principal (whether at maturity or upon acceleration or call for redemption) and interest which the records of the Issuer indicate as having appeared on the mutilated, lost, stolen, or destroyed Bond. In the event the Bond shall have matured, instead of issuing a duplicate Bond the Issuer may pay the same without surrender thereof. The Issuer may charge the owner of the Bond with reasonable fees and expenses in this connection. BOND FORM Section 4. That the Bond, and the Payment Record Schedule "A", shall be in substantially the following form: UNITED STATES OF AMERICA STATE OF ILLINOIS COUNTY OF COOK VILLAGE OF MOUNT PROSPECT Industrial Revenue Bond, Series 1984 (Toko America, Inc. Project) PAYABLE BY THE ISSUER SOLELY AND ONLY FROM REVENUES AND INCOME DERIVED FROM THE LOAN AGREEMENT AND PROMISSORY NOTE REFERRED TO HEREIN No. R-1 $2,000,000 Village of Mount KNOW ALL MEN BY THESE PRESENTS that the Prospect, Cook County, Illinois, a municipality organized and existing under Section 6(a) of Article VII of the 1970 Constitution of the State of Illinois (the "Issuer"), for value received, promises to pay, solely and only from the sources and as hereinafter provided, to CHEMICAL BANt< New York, New York or registered assigns (the "Bank"), the principal sum of: TWO MILLION DOLLARS ($2,000,000), maturing as to principal in thirty- two (32) quarterly installments of $62,500 commencing November 1, 1986 to and includ- ing August 1, 1994, except as the provisions hereinafter set forth with respect to redemption prior to maturity may become applicable hereto, together with interest on the unpaid principal amount hereof from the date hereof (except upon a Determination of Taxability and certain other events as hereinafter provided) at a rate equal to sixty-five percent (65%) of the Prime Rate (as defined in the Bond Ordinance hereinafter referred to) (the "Tax Exempt Rate"), which Tax Exempt Rate shall change when and as said Prime Rate changes, payable on November 1, 1984, and on the first day of each February, May, August and November thereafter until this Bond is fully paid. Interest shall be computed on the basis of a calendar year consisting of 360 days, and charged on the basis of the actual number of days elapsed. The principal hereof and premium, if any, and interest hereon are payable in lawful money of the United States of America in Federal or other immediately available funds at the principal office of the Bank in the City of New York, New York. In the event of an increase or decrease in the Corporate Tax Rate after the issuance of this Bond, the Tax Exempt Rate shall be decreased (in the case of an increase in the Corporate Tax Rate) or increased (in the case of a decrease in the Corporate Tax Rate) to the Adjusted Tax Exempt Rate, effective as of the date of such change in the Corporate Tax Rate. For purposes hereof (i) "Adjusted Tax Exempt Rate" shall mean the product of the Tax Exempt Rate times a fraction (expressed as a decimal) the numerator of which is the number one minus the Corporate Tax Rate in effect following such -15- change referred to in the preceding sentence and the denominator of which is the number one minus the Corporate Tax Rate in effect on the date of issuance of the Bond; and (ii) "Corporate Tax Rate" shall mean the highest marginal statutory rate of Federal income tax imposed on corporations. In the event of a Determination of Taxability (as defined in the Bond Ordi- nance hereinafter referred to) the interest rate on this Bond shall be increased from the Tax Exempt Rate applicable at the time the interest on the Bond first becomes taxable to a rate equal to said Prime Rate plus one and one half percent (1½%) per annum (the "Initial Taxable Rate"), effective as of the date that interest on this Bond first becomes taxable, or if such date is not determinable then the date of the occurrence of said Determination of Taxability, which Initial Taxable Rate shall change when and as said Prime Rate changes. On the date of the first quarterly interest payment following said Determination of Taxability, in addition to the regular quarterly interest payment, a payment shall be made for all past additiona! interest at the Initial Taxable Rate due from the date that interest on this Bond first became taxable, or if such date is not determinable then the date of the occurrence of said Determination of Taxability, to the date of the first quarterly interest payment date following said Determination of Taxa- bility, together with any income taxes, interest~ penalties, fines, additions to tax or other amounts levied as a result of the Determination of Taxability imposed on the Bondholder or any former Bondholder by reason of its failure to include the interest paid on this Bond in its Federal income tax return. The provisions of this paragraph shall be self-executing without the need for any modification or amendment of the Note. If any person shall have owned this Bond on or after the date that interest on this Bond first becomes tax- able, or if such date is not determinable then the date of the occurrence of said Determi- nation of Taxability, but transferred this Bond prior to the quarterly interest payment date on which such additional interest is to be paid, such prior owner of the Bond shall be paid an amount equal to the difference between the interest accruing on this Bond at the -16- Initial Taxable Rate and the interest accruing on this Bond at the Tax Exempt Rate for the period during which such owner owned this Bond from the date that such interest became taxable (or the date of the occurrence of the Determination of Taxability) to the date of transfer, plus all income taxes, interest, penalties, fines, additions to tax or other amounts levied or assessed as a result of said Determination of Taxability. The covenants contained in this paragraph shall survive the final payment of the principal of, premium, if any, and interest on this Bond. If the Bond remains outstanding after the date of the first quarterly inter- est payment following the Determination of Taxability, the remaining unpaid principal installments shall bear interest from such date at the Prime Rate (the "Taxable Rate"). In the event of delay or default in the payment of principal or interest on the Bond under the Bond Ordinance hereinafter referred to and during the continuation of such delay or default, this Bond shall bear interest at the Prime Rate, plus one and one half percent (1½%) per annum. The Bank shall provide the Issuer and the Company (as hereinafter defined) with' written notice at least five (5) business days in advance of each date on which interest shall be payable on this Bond of the Prime Rate in effect from time to time during the applicable interest payment period and the amount of interest to be due and payable on this Bond on such interest payment date. The Bank or other owner of this Bond shall be entitled to certain additional payments from the Company (as hereinafter defined) in the event that any payment of interest or principal or any amount of interest or indebtedness attributable directly or indirectly to the purchase or carrying of this Bond is subject to or affected by any pref- erence tax, any minimum tax~ any excess profits tax or any other Federal tax, as further described in and pursuant to Section 4.2(c) of the Loan Agreement hereinafter referred to. -17- Payments of principal (whether at maturity or upon acceleration or call for redemption) and payments of interest shall be noted by the Bank on the Payment Record- Schedule "A" made a part of this Bond, as provided in the Bond Ordinance hereinafter identified, pursuant to which this Bond is issued. The Bank or any other owner of this Bond shall make this Bond available for inspection during regular banking hours at the principal office of the Bank in the City of New York, New York, at the request of the Company or the Issuer. This Bond is issued in the principal sum of $2,000,000 and designated "Industrial Revenue Bond, Series 1984 (Toko America, Inc. Project)", pursuant to the hereinafter described Act and to a Bond Ordinance duly adopted by the governing body of the Issuer on August 21, 1984 (the "Bond Ordinance") for the purpose of providing funds to finance the cost of acquiring land and constructing and equipping an industrial building thereon, including related site improvements located within the Village of Mount Prospect, Cook County, Illinois (the "Project") and paying expenses incidental thereto, to the end that the Issuer may be able to relieve conditions of unemployment and encourage the increase of industry and commerce in the Village of Mount Prospect, Illinois. The proceeds of this Bond will be used by the Issuer to pay or reimburse Toko America, Inc., a corporation incorporated and existing under the laws of the State of Illinois (the "Com- pany''), for a portion of the costs of the construction of the Project, under the terms of a Loan Agreement dated as of August 1, 1984, by and between the Issuer and the Company (which agreement, as from time to time supplemented and amended, is hereinafter referred to as the "Agreement"). This Bond is secured by a pledge and assignment of the revenues and income derived by the Issuer from the repayment of the loan by the Company and other revenues and income derived pursuant to the Agreement and the Promissory Note issued by the Company thereunder (the "Note"), and is further secured by an assignment of the right, title and interest of the issuer in and to the Agreement, the Note and the Mortgage -18- and Security Agreement referred to in the Agreement (except certain indemnification and expense payments) granting a mortgage on and security interest in the Project, all as more fully described in the Bond Ordinance. Reference is made to the Bond Ordinance for a description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Issuer, the rights of the owner of this Bond, and the terms on which this Bond is or may be issued and to all of the provisions to which the owner hereof by the acceptance of this Bond assents. The principa! of and interest on this Bond is further secured by an irrevocable letter of credit (the "Letter of Credit") delivered by The Saitama Bank, Ltd. in favor of the Chemical Bank. Reference is hereby made to the Letter of Credit for a statement of the terms and conditions thereof. This Bond is issued pursuant to and in full compliance with the provisions of Ordinance No. 2925, adopted by the President and Board of Trustees of the Issuer on July 17, 1979, as supplemented and amended (the "Act"), and pursuant to the Bond Ordinance. THIS BOND SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OR A LOAN OF CREDIT OF THE ISSUER, THE STATE OF ILLINOIS OR ANY POLITICAL SUBDIVISION THEREOF, WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION, BUT IS A LIMITED OBLIGATION OF THE ISSUER, PAYABLE SOLELY OUT OF THE REVENUES AND INCOME OF THE ISSUER DERIVED PURSUANT TO THE NOTE AND THE AGREEMENT. No owner of this Bond shall have the right to compel any exercise of the taxing power of the Issuer, the State of Illinois or any political subdivision thereof, to pay this Bond or the interest or premium, if any, hereon, and this Bond does not constitute an indebtedness or a loan of credit of the Issuer, the State of Illinois or any political subdivision thereof, within the meaning of any constitutional or statutory provision. Pursuant to the provisions of the Agreement, payments sufficient for the prompt payment when due of the principal of, premium, if any, and interest on this Bond are to be paid by the Company to the Bank for -19- the account of the Issuer and deposited in a special account created by the Issuer and designated "Village of Mount Prospect, Industrial Revenue Bond Fund (Toko America, Inc. Project)" (the "Bond Fund"), and all revenues and income accruing from the repayment of the loan by the Company under the Agreement and the Note have been duly pledged and assigned to the Bank for that purpose, under the Bond Ordinance, to secure payment of the principal of, premium, if any, and interest on this Bond. Principal installments of this Bond are subject to prior redemption in whole, or in part in inverse order of maturity, at the option of the Issuer from any avail- able funds, including the prepayment of the Note or a portion thereof at the option of the Company pursuant to Section 7.1 of the Agreement, on any interest payment date, in the amount of $62,500 or any whole multiple thereof, at a redemption price of 100% of the principal amount being redeemed plus accrued interest thereon to the date fixed for redemption, plus a premium for each amount so redeemed in accordance with the follow- ing schedule: Redemption Date Premium November 1, 1984 - August 1, 1985 5% November 1, 1985 - August 1, 1986 3% November 1, 1986 - August 1, 1987 1% November 1, 1987 and thereafter none Outstanding principal installments of the Bond shall be further subject to redemption prior to maturity, on any interest payment date, in whole, at the option of the Issuer, from any available funds, including prepayment of the Note, upon a Determi- nation of Taxability or substantial damage to or destruction of the Proiect, at a redemption price of par plus accrued interest to the date fixed for redemption. Upon receipt by the Issuer and the Bank of at least thirty (30) days' prior written notice from the Company specifying a date for the prior redemption of this Bond (or a portion hereof), the Bank shall, to the extent that amounts are or become available therefor in the Bond Fund, apply such amounts in the Bond Fund on behalf of the Issuer to the redemption of this Bond (or a portion hereof) in accordance with the preceding para- -20- raphs. Ail principal amounts of this Bond designated for prior redemption shall cease to bear interest on the date fixed for such redemption. In certain events, on the conditions, in the manner and with the effect set forth in the Bond Ordinance, this Bond may become or may be declared due and payable before the stated maturity thereof, together with interest accrued thereon. Modifications, alterations or amendments of the provisions of the Bond Ordinance may be made only to the extent and in the c~rcumstances permitted by the Bond Ordinance. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required by the Constituti~on and the laws of the State of Illinois to happen, exist and be performed precedent to and in the issuance of this Bond have hap- pened, exist and have been performed in due time, form and manner as required by law; and that the issuance of this Bond, together with all other obligations of the Issuer, does not exceed or violate any constitutional or statutory limitation. This Bond is issued with the intent that the laws of the State of Illinois w~ll govern its construction. IN WITNESS WHEREOF, the Village of Mount Prospect, Cook County, Illinois, has caused this Bond to be signed on its behalf by the manual signature of its President and attested manually by its Village Clerk and the official seal of the Issuer to be affixed hereto, all as of August , 1984. VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS 3~ President Village Clerk- -21- SCHEDULE A PAYMENT RECORD Date Principal Payment Principal Balance Due Interest Payment Chemical Bank Authorized Official and Title -22- SCHEDULE A PAYMENT RECORD Date Principal Payment Principal Balance Due Interest Payment Chemical Bank Authorized Official and Title -23- CUSTODY AND APPLICATION OF PROCEEDS OF BOND: CONSTRUCTION FUND Section 5. There is hereby created and established with the Bank, which is hereby constituted and appointed as depositary for the Issuer, a special fund in the name of the Issuer to be designated "Village of Mount Prospect, Industrial Revenue Bond Con- struction Fund (To~(o America, Inc. Proiect)". The proceeds received by the Issuer upon the sale of the Bond, exclusive of accrued interest, if any, which shall be deposited in the Bond Fund, shall be deposited in the Construction Fund which shall be held in a separate account by the Bank, as depositary. Moneys in the Construction Fund shall be expended in accordance with the provisions of the Agreement, and particularly Section 3.3 thereof. The Bank, as depositary, shall keep and maintain adequate records pertain- ing to the Construction Fund and all disbursements therefrom and may designate one or more escrow agents for purposes of disbursing all or portions of the Construction Fund. The completion of the Project and payment of all costs and expenses inci- dent thereto shall be evidenced by the filing with the Issuer and the Bank of a certificate of the Authorized Company Representative required by Section 3.4 of the Agreement. Any moneys thereafter remaining in the Construction Fund shall be applied in accordance with Section 3.4 of the Agreement. CONSTRUCTION OF PROJECT AND PAYMENT OF AMOUNTS UNDER THE AGREEMENT Section 6. It is the declared intention of the Issuer to authorize the dis- bursement of the proceeds of the Bond in order to finance the construction of the Project by the Company, pursuant to the Agreement in substantially the form which has been presented to and is hereby approved by tl~e Issuer. The Agreement and the revenues and income thereof, including all moneys received under its terms and conditions and the Note therein authorized, are provided to -24- be sufficient to pay the principal of, premium, if any, and interest on the Bond hereby authorized, and are hereby pledged and ordered paid into the Bond Fund as specified in Seetion 7 hereof. The Agreement provides that the Company shall remit the required payments in repayment of the loan under the terms and conditions of the Agreement directly to the Bank for the account of the Issuer for deposit in the Bond Fund and such provision is hereby expressly approved. REVENUES; BOND FUND Section 7. The Bond and all payments required of the Issuer hereunder are not general obligations of the Issuer, but are special and limited obligations secured by an assignment and pledge of the right, title and interest of the Issuer in and to the Agree- ment, the Note and the Mortgage, pursuant to the Assignment, a mortgage on and secur- ity interest in the Project, pursuant to the Mortgage, and the Letter of Credit, and shall be payable by the Issuer solely and only out of the revenues and income derived from the Agreement and the Note and as otherwise provided herein. There is hereby created by the Issuer and ordered established with the Bank, as depositary, a special fund to be designated "Village of Mount Prospect, Indus- trial Revenue Bond Fund (Toko America, Inc. Project)", which shall be used to pay the principal of, premium, if any, and interest on the Bond. There shall be deposited into the Bond Fund, as and when received (a) a sum equal to the accrued interest paid by the purchaser of the Bond, if any; (b) any amount remaining in the Construction Fund to the extent provided in Section 3.4 of the Agree- ment; (c) all payments made on the Note; (d) all prepayments of the Note as specified in Article VII of the Agreement; and (e) all other moneys received by the Bank under and pursuant to any of the provisions of the Agreement, the Note, the Assignment, the Mort- gage or the Letter of Credit which are required or accompanied by directions that such -25- moneys are to be deposited in the Bond Fund. The Bank is authorized and directed to apply amounts available therefor in the Bond Fund to the payment when due of the principal of, premium, if any, and interest on the Bond (whether at maturity or upon acceleration or call for redemption). The Issuer covenants and agrees that, should there be a default under the Agreement, the Issuer shall fully cooperate with the Bank as owner of the Bond or any other owner of the Bond to the end of fully protecting the rights and security of the Bank or such other owner of the Bond. Nothing herein shall be construed as requiring the Issuer to operate the Project or to use any funds or revenues from any source other than funds and revenues derived from the Agreement and the Note (except as otherwise provided herein). Any amounts remaining in the Bond Fund, after payment in full of the principal of, premium, if any, and interest on the Bond and the charges and expenses of the Bank, shall be paid to the Company, as provided herein and in Section 9.5 of the Agreement. ASSIGNMENT, MORTGAGE, AND LETTER OF CREDIT Section 8. As security for the due and punctual payment of the principal of, premium, if any, and interest on the Bond hereby authorized, the Issuer hereby assigns and pledges to the Bank all revenues and income derived by the Issuer pursuant to the Agreement, the Note and the Mortgage (except any payment made pursuant to Section 4.2(f) of the Agreement, relating to the obligation of the Company to pay reasonable and necessary expenses of the Issuer, Section 5.3 of the Agreement, relating to indemnifica- tion of the Issuer by the Company, and Section 6.4 of. the Agreement, relating to the obligation of the Company to pay attorneys' fees and expenses incurred ~Sy the Issuer upon a default thereunder) and all rights and remedies of the Issuer under the Agreement, -26- the Note and the Mortgage to enforce payment thereof and as evidence of such assign- ment, pledge and security interest and of the agreement of the Bank to accept its responsibilities with respect to the Construction Fund created pursuant .to Section 5 hereof, to the Bond Fund created pursuant to Section 7 hereof and to any other duty imposed upon the Bank by this Ordinance or the Agreement, the President of the Issuer is hereby authorized to execute the Assignment for and on behalf of the Issuer and the Village Clerk of the Issuer is hereby authorized to attest the same and to affix thereto the official seal of the Issuer, and said officers are authorized and directed to cause the Assignment to be executed by the Bank, the Assignment to be in substantially the form which has been presented to and is hereby approved by the Issuer. As further security for the payment of the principal of, premium, ~f any, and ~nterest on the Bond, the Company will execute and deliver the Mortgage and will cause to be delivered the Letter of Credit, each in substantially the form presented to the Issuer, the form, terms and provisions of which are hereby approved, and the Com- pany will cause the Mortgage to be recorded in the real estate records of the off}ce of the Recorder of Deeds of Cook County, Illinois. INVESTMENTS; ARBITRAGE Section 9. Any moneys held as part of the Construction Fund created pursuant to Section 5 hereof and the Bond Fund created pursuant to Section 7 hereof, may be invested or reinvested on the direction of the Authorized Company Representa- tive, in accordance with the provisions of Section 3.5 of the Agreement. Any such investment shall be held by or under control of the Bank and shall be deemed at all times a part of the fund for which the investment was made, and the interest accruing thereon and any profit realized from such investments shall be credited to such fund, and any loss resulting from such investments shall be charged to such fund, which loss shall be an -27- obligation of the Company as provided in the Agreement. The Company shal! forthwith pay to the Bank for deposit into such fund the amount of any losses on such investments provided that such payment shall not release the Bank from any liability due to its negli- gence or willful misconduct. As and when any amount invested pursuant to this Section 9 may be needed for disbursement, the Authorized Company Representative may, upon 72 hours' prior notice from the Company to the Bank, direct the Bank to cause a sufficient amount of the investments to be sold and reduced to cash to the credit of such funds regardless of the loss on such liquidation. Absent such direction, the Bank is authorized to and shall liquidate such investments whenever necessary to make timely payment of any amounts due on the Bond. With respect to Section 103(c) of the Code, the Company has made certain covenants with the Issuer ~n Section 3.6 of the Agreement, and the Company will make certain certifications and representations with respect to Section 103(c) of the Code on the date of delivery of the Bond, which the Issuer shall accept and adopt, and the Issuer, acting in reliance on such covenants, certifications and representations, hereby cove- nants with the Bank and any other owner of the Bond that so long as any principal of, premium, if any, or interest on the Bond remains unpaid, the Issuer will not take or authorize the taking of any action which will cause the Bond to be classified as an "arbi- trage bond" within the meaning of Section 103(c) of the Code and any regulations prom- ulgated or proposed thereunder, including Section 1.103-13, Section 1.103-14 and Section 1.103-15 of the Income Tax Regulations (26 C.F.R., Part l) as the same presently exist or may from time to time hereafter be amended, supplemented or revised, or within the meaning of any Federal legislation and any regulations promulgated or proposed there- under. In order to insure that the Bond will not be or become an "arbitrage bond", in -28- exercise of its home rule powers, the President and Board of Trustees hereby determine that it is in the best interest of the Issuer to permit the proceeds of the Bond to be invested in obligations issued by states or units of local government, the interest on which is excludable from federal gross income. GENERAL COVENANTS Section 10. The Issuer covenants that it will promptly cause to be paid, solely and only from the sources mentioned in the Bond, the principal of, premium, if any~ and interest on the Bond hereby authorized at the place, on the dates and in the manner provided herein and in the Bond according to the true intent and meaning thereof. The Bond and the obligation to pay interest thereon are limited obligations of the issuer, secured by the Note of the Company, the Assignment, the Mortgage, and the Letter of Credit, and payable as set out in Section 3 hereof. The Issuer covenants that it will faithfully perform at all times any and aJ_l covenants, undertakings~ stipulations and provisions contained in this Ordinance, the Bond, the Agreement, the Mortgage and the Assignment~ and in its proceedings pertain- ing thereto. The Issuer covenants that it is duly authorized as an exercise of its powers as a home rule unit under Section 6(a) of Article VII of the 1970 Constitution of the State of Illinois and the Aet~ to issue the Bond authorized hereby and to pledge and assign the revenues and income hereby pledged and assigned in the manner and to the extent herein set forth~ that all action on its part for the issuance of the Bond has been or wills before delivery of the Bond, have been duly and effectively taken and that the Bond, when issued and delivered to the Bank, will be a valid and enforceable limited obligation of the Issuer according to the true intent and meaning thereof. The Issuer covenants that it will execute, acknowledge and deliver such instruments, financing statements and other documents as the Bank or any other owner -29- of the Bond may reasonably request for the better assuring, granting, pledging and assigning unto the Bank the right, title and interest of the Issuer in and to the Agree- ment, the Note and the Mortgage, as well as the rights of the Issuer in and to the required payments of revenues and income pursuant to Section 4.2(a) of the Agreement and the Note hereby assigned and pledged to the payment of the principal of, premium, if any, and interest on the Bond. The Issuer covenants and agrees that, excep~ as herein and in the Agreement provided, it will not sell, convey, mortgage, encumber or otherwise dispose of any part of the revenues and income derived from the Agreement and the Note, or of its rights under the Agreement, the Note and the Mortgage. The Issuer covenants and agrees that all books and documents in its posses- sion relating to the Projec~ and the payments on the Note and under the Agreement shall at all reasonable times be open to inspection by the Bank or any other owner of the Bond or such accountants or other agencies as the Bank or such owner may from time to time designate. The Issuer covenants and agrees that it shall, through the Bank or any other owner of the Bond, enforce all of its rights and all of the obligations of the Company under the Agreement for the benefit of the Bank or any other owner of the Bond. The Issuer shall protect the rigt~ts of the Bank or any other owner of the Bond hereunder with respect to the assignment and pledge of the revenues and income coming due under the Agreement and the Note. EVENTS OF DEFAULT AND REMEDIES Section 11. If any of the following events occurs ~t is hereby defined as and declared to be and to constitute an "event of default" hereunder: (a) Default in the due and punctual payment of any interest on the Bond. -30- (b) Default in the due and punctual payment of any principal of or premium, if any, on the Bond, whether at the stated maturity thereof or upon call for redemption or pro- ceedings for the acceleration thereof. (c) An "Event of Default" shall have occurred and be continuing under the Agreement. (d) The Letter of Credit is terminated other than by reason of payment of all of the principal of the Bond with moneys resulting from a draw on the Letter of Credit. (e) The Letter of Credit Bank becomes insolvent, or a receiver, trustee, custodian or similar entity is appointed for or otherwise takes control of the Letter of Credit Bank or of the whole or any part of its property and, within thirty (30) days thereafter, the Company is unable to secure a substitute letter of credit substantially in the form of the Letter of Credit delivered by a bank acceptable to the holder of the Bond. Upon the occurrence of an event of default hereunder and so long as such event of default is continuing, the Bank or any other owner of the Bond, by notice in writing delivered to the Company, the Issuer and the Letter of Credit Bank, shall declare the principal of the Bond and the interest accrued thereon immediately due and payable, and immediately accelerate such principal and interest and may draw against the Letter of Credit up to the stated amount thereof. Upon any such declaration and acceleration all payments under the Agreement and the Note from the Company shall become imme- diately due and payable as provided in Section 6.2 of the Agreement. -31- While any principal of, premium, if any, or interest on the Bond remains unpaid, the Issuer shall not exercise any of the remedies available upon an "Event of Default" specified in Section 6.2 of the Agreement without first obtaining the prior written consent of the Bank or any other owner of the Bond. Upon the occurrence of an event of default hereunder, the Bank or any other owner of the Bond and the Letter of Credit Bank as a mortgagee under the Mortgage may exercise such rights as exist under the Agreement, the Note, the Assign- ment, the Mortgage, the Letter of Credit or this Ordinance and may pursue any available remedy at law or in equity by suit, action, mandamus or other @roceeding to enforce the payment of the principal of, premium, if any, and interest on the Bond and to enforce and compel the performance of the duties and obligations of the Company as herein and in the Agreement, the Note, the Mortgage and the Letter of Credit set forth. No remedy by the terms of this Ordinance conferred upon or reserved to the Bank is intended to be exclusive of any other remedy, but each and every such rem- edy shall be cumulative and shall be in addition to any other remedy given to the Bank or any other owner of the Bond hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right, power or remedy accruing upon any event of default hereunder shall impair any such right, power or remedy or shall be construed to be a waiver of any such event of default hereunder or acquiescence therein; and every such right, power or remedy may be exercised from time to time as often as may be deemed expedient. Ail moneys received pursuant to any right given or action taken under the provisions of this Section 11 or under the provisions of Article VI of the Agreement or under the Note, the Assignment, the Mortgage or the Letter of Credit, and all moneys in the Construction Fund at the time of the occurrence of an event of default hereunder -32- hall be deposited in the Bond Fund and all such moneys in the Bond Fund shall be applied to the payment of the principal, premium, if any, and interest due and unpaid upon the Bond to the person entitled thereto (including the Letter of Credit Bank, if the Letter of Credit Bank has made payment to the Bank under the Letter of Credit). Whenever moneys are to be applied pursuant to the provisions of this Sec- tion 11, such moneys shall be applied to the payment of the principal of, premium, if any, or interest on the Bond on behalf of the Issuer, upon receipt of such moneys by the Bank (or any other owner of the Bond). Whenever all principal of, premium, if any, and interest on the Bond have been paid under the provisions of this Section ll, all expenses of the Bank and the Issuer have been paid and all amounts owed by the Company to the Letter of Credit Bank have been paid in full, any balance remaining in the Bond Fund shall be paid to the Company pursuant to Section 9.5 of the Agreement. The Bank or any other owner of the Bond may in its discretion waive any event of default hereunder and its consequences and rescind any declaration of accelera- tion of principal, and in eases of any such waiver or rescission, or in ease any proceeding taken by the Bank on account of any such event of default hereunder shall have been discontinued or abandoned or determined adversely, then and in every such case the Issuer, the Company, the Bank and any other owner of the Bond shall be restored to their former positions and rights hereunder, respectively, but no such waiver or rescission shall extend to any subsequent or other event of default hereunder, or impair any right conse- quent thereon. With regard to any default concerning which notice is given to the Com- pany under the provisions of this Section 11, the Issuer hereby grants the Company full authority for account of the Issuer to perform or observe any covenant or obligation alleged in said notice not to have been performed or observed, in the name and stead of -33- the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do in order to remedy such default. SALE OF THE BOND: EXECUTION OF DOCUMENTS Section 12. (a) The sale of the Bond to the Bank is hereby authorized at a price of $2,000,000 plus accrued interest, if any, and payment pursuant to the Bond Purehase Agreement in substantially the form which has been presented to the Issuer is hereby approved by the Issuer, and the Bond Purchase Agreement in substantially the form which has been presented to the Issuer is hereby in all respects authorized, approved and confirmed. The President of the Issuer is hereby authorized and directed to execute the Bond Purchase Agreement for and on behalf of the Issuer, and the Village Clerk of the Issuer is hereby authorized to attest the same and to affix the official seal of the Issuer thereto. (b) The Agreement, the Mortgage, the Assignment and the Letter of Cre- dit, in substantially the form in which the same have been presented to the Issuer, are hereby approved by the Issuer and are in all respects authorized, approved and confirmed. The President of the Issuer is hereby authorized and directed to execute the Agreement, the Mortgage and the Assignment for and on behalf of the Issuer, and the Village Clerk of the Issuer is hereby authorized to attest the same and to affix the offi- cial seal of the Issuer thereto. PERFORMANCE PROVISIONS Section 13. The President and the Village Clerk of the Issuer, for and on behalf of the Issuer be, and each of them hereby is, authorized and directed to do any and all things necessary to effect the performance of all obligations of the Issuer under and pursuant to this Ordinance, the advancement of the loan, the execution and delivery of the Bond and the performance of all other acts of whatever nature necessary to effect -34- and carry out the authority conferred by this Ordinance. The President and the Village Clerk of the Issuer be, and they are hereby, further authorized and directed for and on behalf of the Issuer, to execute all papers, documents, certificates and other instruments that may be required for the carrying out of the authority conferred by this Ordinance or to evidence said authority and to exercise and otherwise take all necessary action to the full realization of the rights, accomplishments and purposes of the Issuer under the Agreement, the Mortgage, the Assignment and the Bond Purchase Agreement and to discharge ali of the obligations of the Issuer thereunder. NOTICES Section 14. Ail notices, certificates or other communications shall be sufficiently given and shall be deemed given when the same are (i) deposited in the United States mail and sent by first class mail, postage prepaid, or (ii) delivered, in each case to the parties at the folio_wing addresses or such other address as a party may desig- nate by notice to the otl~er parties: if to the Issuer, at 100 South Emerson Street, Mount Prospect, Illinois 60156, Attention: Finance Director; if to the Bank, at Chemical Bank, 277 Park Avenue, New York, New York 10172, Attention: Asian Division, Japan Group, provided that all payments to the Bank shall be made to the Bank at 52 Broadway, New York, New York 10004, Attention: Helga Harney, Wholesale Loan Department; and if to the Company, at 5520 West Touhy Avenue, Skokie, Illinois 60077, Attention: President, or at such other addresses as the parties may subsequently specify. ORDINANCE A CONTRACT; PROVISIONS FOR MODIFICATIONS, ALTERATIONS AND AMENDMENTS Section 15. The provisions of this Ordinance shall constitute a contract between the Issuer and the owner of the Bond hereby authorized; and after the issuance of the Bond, no modification, alteration, amendment or supplement to the provisions of this Ordinance shall be made in any manner except with the written consent of the Bank 135- or any other owner of the Bond and the Letter of Credit Bank until such time as all principal of, premium, if any, and interest on the Bond shall have been paid in full. SATISFACTION AND DISCHARGE Section 16. All rights and obligations of the Issuer and the Company under the Bond, this Ordinance, the Agreement, the Note, the Assignment, the Mortgage, the Letter of Credit and the Bond Purchase Agreement shall terminate and such instruments shall cease to be of further effect, and the Bank or any other owner of the Bond shall surrender the Bond, cance! the Bond, deliver ~t to the Issuer, deliver a copy of the can- celled Bond to the Company and assign and deliver to the Company any moneys in the Bond Fund required to be paid to the Company under Section 7 hereof (except moneys held by the Bank for the payment of principal of, premium, if any, or interest on the Bond) when: (a) all expenses of the Issuer and the Bank shall have been paid; (b) the Issuer, the Company and the Letter of Credit Bank shall have performed all of their covenants and promises ~n the Bond, this Ordinance, the Agreement, the Assignment, the Mortgage, the Letter of Credit and the Bond Purchase Agreement; and (e) all principal of, premium, if any, and interest on the Bond have been paid. SEVERABILITY Section 17. If any section, paragraph, clause or provision of this Ordinance shall be ruled by any court of competent jurisdiction to be ~nvalid, the ~nvalldity of such section, paragraph, clause or provision shall not affect any of the remaining sections, paragraphs, clauses or provisions hereof. -36- CAPTIONS Section 18. The captions or headings of this Ordinance are for convenience only and in no way define, limit or describe the scope or intent of any provision of this Ordinance. EFFECTIVE DATE Section 19. Ail ordinances, resolutions and orders, or parts thereof, in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby superseded. This Ordinance shall be in full force and effect immediately upon its adop- tion. Adopted August , 1984 Approved August , 1984 Recorded August , 1984 sident (SEAL) ATTEST: Village Clerk -37- nded the motion that said ordinance as presented be adopted. After a full discussion thereof, the President directed that the roll be called for a vote upon the motion to adopt the ordinance as read. Upon roll being called, the President and the following Trustees voted: NAY: ~JO~j ABSENT OR NOT VOTING: F~o~)~, ~l~lj ~ Whereupon the President declared the motion carried and the ordinance adopted, and henceforth did approve and sign the same in open meeting, and did direct the Village Clerk to record the same in full in the records of the President and Board of Trustees of the Village of Mount Prospect, Cook County, Illinois. Other business not pertinent to the adoption of said ordinance was duly transacted at said meeting. Upon motion duly made and seconded, the meeting was adjourned. (SEAL) Village Clerk -38- TATE OF ILLINOIS COUNTY OF COOK ) ) ss. ) I, Carol A. Fields, do hereby certify that I am the duly qualified and acting Clerk of the Village of Mount Prospect, Cook County, Illinois, and as such officer I am the keeper of the records and files of the President and Board of Trustees of said Village. I do further certify that the foregoing constitutes a full, true and complete transcript of the minutes of the leg.~a~,ly convened meeting of said President and Board of Trustees of said Village held on the~'day of August 1984, insofar as same relates to the adoption of a bond ordinance authorizing the issuance of a $2,000,000 Industrial Revenue Bond, Series 1984 (Toko America, Inc. Project) of said Village, a true, correct and com- plete copy of which said ordinance as adopted at same meeting appears in the foregoing transcript of the minutes of said meeting. I do further certify that the deliberations of the President and Board of Trustees on the adoption of said ordinance were taken openly; that the vote on the adop- tion of said ordinance was taken openly; that said meeting was held at a specified time and place convenient to the public; that notice of said meeting was duly given to all newspapers, radio or television stations and other news media requesting such notice; and that said meeting was called and held in strict accordance with the provisions of the Open Meetings Act of the State of Illinois, as amended, and the provisions of the Illinois Municipal Code, as amended, and that said President and Board of Trustees have eom- plied with all of the applicable provisions of said Act and said Code and their procedural rules in the adoption of said ordinance. IN WITNESS WHEREOF, I have hereunto affixed my official signature and the seal of said Village, this ,~,~?day of August, 1984. :z-: ~.':?: Village Clerk, Village of Moun~ Prospect, ~-'5/~ Cook County, Illinois (SEAL)" -39-