1
Record and Return to:
Paul J. D'Onfro, Esquire
Mirick, O'Connell, DeMallie & Lougee
1700 Bank of Boston Tower
Worcester, MA 01608
MORTGAGE
SPECTRAN CORPORATION, a Delaware corporation having a principal place
of business at 50 Hall Road, Sturbridge, Massachusetts ("Mortgagor"), for
consideration paid, grants the Premises to FLEET NATIONAL BANK, a national
banking corporation with a place of business at 370 Main Street, Worcester,
Massachusetts ("Mortgagee") with MORTGAGE COVENANTS, to secure the payment,
performance and observance of all the Obligations. The term "Obligations" means
all of the debts, liabilities, agreements and other obligations of Mortgagor,
SPECTRAN SPECIALTY OPTICS COMPANY ("Optics"), APPLIED PHOTONIC DEVICES, INC.
("Photonic") and SPECTRAN COMMUNICATION FIBER TECHNOLOGIES, INC.
("Communication") (Mortgagor, Optics, Photonic and Communication and sometimes
hereinafter referred to as "Obligors") due Mortgagee, whether direct or
indirect, absolute or contingent, joint or several, due or to become due, now
existing or arising in the future. The term "Loan Documents" includes this
Mortgage, the $5,000,000.00 Mortgage Note of Obligors, the $5,000,000.00 Term
Note of Obligors, the $12,000,000.00 Revolving Note of Obligors, the Loan and
Security Agreement among Obligors and Mortgagee and all other documents
delivered to Mortgagee in connection with this Mortgage by Obligors and all
amendments, extensions and renewals of this Mortgage and the other agreements
and documents referred to above.
The term "Premises" includes the following, all of which are subject to
this Mortgage:
(i) The land in Sturbridge, Worcester County, Massachusetts having an
address of 50 Hall Road, more particularly described in Exhibit A
attached;
(ii) All buildings, structures and improvements now or at any time in
the future on the land;
(iii) All Fixtures, which term means (1) all goods, equipment,
fixtures, building materials and tangible personal property (except (a)
consumable goods, (b) equipment of Mortgagor which is not affixed to the real
estate and (c) personal property owned by tenants of the Premises which the
tenants are entitled to remove by law or agreement) now or in the future located
on, attached to or incorporated in the construction of and used in connection
with the operation of the Premises including, but not limited to, all
sidetracks, boilers, tanks, pumps, furnaces, radiators, alarm systems, cooling
towers, compressors, elevators, escalators, cranes and all heating, lighting,
power, plumbing, electrical, communications, ventilating, refrigerating, air
conditioning, sprinkler, incinerating and building service equipment, and (2)
all related accessories, additions and replacements;
2
(iv) All right, title and interest of Mortgagor in all easements,
rights (including mineral, air and water rights), privileges, appurtenances,
licenses, permits and governmental approvals, now or in the future pertaining to
the Premises; and
(v) All rents, income, profits, royalties or accounts receivables from
the Premises.
SECTION 1 - GENERAL COVENANTS OF MORTGAGOR. Until the Obligations are
paid, performed and observed in full, in addition to the STATUTORY CONDITION,
Mortgagor agrees as follows:
1.1 INSURANCE. To keep all buildings, improvements and
Fixtures which are part of the Premises insured against direct risk of physical
loss in an amount not less than 100% of their replacement cost with deductibles
satisfactory to Mortgagee. Mortgagor agrees to maintain such other insurance and
in such amounts and on such terms as Mortgagee reasonably requests. If a
structure which is part of the Premises is within a flood hazard area, Mortgagor
agrees to carry flood insurance to the extent required under applicable law or
by Mortgagee. Mortgagor agrees to keep all buildings and improvements under
construction insured under a Builder's Risk, Completed Value, non-reporting form
of policy which provides coverage for "completion and/or premises occupancy."
All insurance will (i) be written with a standard mortgagee clause by companies
of recognized responsibility authorized to write such insurance in Massachusetts
and having a Best's financial rating of B or better, (ii) be in amounts and on
forms satisfactory to Mortgagee, (iii) be payable in case of loss to Mortgagee,
as its interest may appear, and (iv) contain a provision that it may not be
cancelled or modified without at least ten (10) days prior written notice to
Mortgagee. Mortgagor agrees to deliver to Mortgagee, when requested,
satisfactory evidence of (a) all existing insurance policies, (b) new policies
for insurance about to expire at least ten (10) days before the expiration and
(c) payment of all insurance premiums. Subject to the rights of the holder of
any prior mortgage, after demand by Mortgagee, Mortgagor agrees (x) to deposit
with Mortgagee on each day that interest payments are required by the terms of
the Loan Documents, a sum equal to that fraction of insurance premiums payable
each year estimated by Mortgagee to be sufficient to provide, in total, a sum
adequate to pay the insurance premiums when due, (y) to deposit with Mortgagee
the balance necessary to pay the insurance premiums in full before they are due
and (z) to forward to Mortgagee bills for the insurance premiums as soon as they
are received by Mortgagor.
1.2 TAXES. To pay or cause to be paid, before the last
day on which payment may be made without penalty or interest (the "Payment
Date") all taxes (or payments in lieu of taxes), special or general assessments,
water and sewer charges and other municipal charges with respect to the Premises
("Taxes"), except for Taxes which Mortgagor is contesting in good faith for
which adequate reserves have been made. After the occurrence of an Event of
Default and upon written demand by Mortgagee, Mortgagor agrees (i) to deposit
with Mortgagee on each day that interest payments are required by the terms of
the Loan Documents, a sum equal to that fraction of the Taxes for each year
estimated by Mortgagee to be sufficient to provide, in total, a sum adequate to
pay the Taxes on the Payment Date, (ii) to deposit with Mortgagee the balance
necessary to pay the Taxes in full before the Payment Date and (iii) to forward
to Mortgagee bills
2
3
for the Taxes as soon as they are received by Mortgagor. Mortgagee may invest
all sums deposited by Mortgagor for its own account without obligation to pay
interest to Mortgagor.
1.3 MORTGAGES AND ENCUMBRANCES. To keep the title to the
Premises free of all mortgages and other encumbrances except (i) the lien for
Taxes not yet due, (ii) the lien for Taxes being contested in good faith for
which adequate reserves have been made, (iii) encumbrances assented to by
Mortgagee, (iv) encumbrances which individually do not exceed $5,000.00 and (v)
encumbrances for more than $5,000.00 which are not discharged, satisfied, stayed
or bonded within thirty (30) days after Mortgagor becomes aware of the existence
of such encumbrances.
1.4 MAINTENANCE AND USE OF PREMISES. To maintain the Premises
in substantially the same condition as they now are or may be in the future,
reasonable wear and tear excepted. Mortgagor agrees not to permit (i) removal,
demolition or other waste of the Premises, (ii) lapse or revocation of any
material license, permit or other governmental authorization issued with respect
to the Premises, (iii) material change in the structure or use of the Premises
or (iv) violation in any material respect of a law or ordinance affecting the
Premises or its use. At Mortgagee's request, Mortgagor agrees to provide
evidence of compliance with the provisions of this or any other covenant in the
Loan Documents.
1.5 LEASES. To deliver to Mortgagee for examination and copying
originals of all leases, licenses, franchises and other agreements under which a
person occupies any part of the Premises ("Leases"). Mortgagor assigns the
Leases and all rent, income, fees and other amounts due Mortgagor under the
Leases ("Rents") to Mortgagee as additional security for the Obligations.
Mortgagor grants to Mortgagee full power, as irrevocable attorney-in-fact of
Mortgagor, to execute and deliver assignments of the Leases and the Rents to
itself, to any future holder of this Mortgage or to any person claiming title to
the Premises as a result of foreclosure proceedings in the event Mortgagor fails
to do so. When an Event of Default exists, Mortgagee may, without waiving any of
its other rights, collect the Rents and enforce all obligations of tenants under
the Leases without taking possession of the Premises and without performing any
obligations of the landlord under the Leases.
1.6 ENVIRONMENTAL LAWS AND COMPLIANCE. To comply with and to
cause the Premises to comply in all material respects with all applicable
Federal, state and local laws, codes, ordinances, rules, regulations and
interpretations now or in the future existing, and all applicable orders of
administrative agencies including, but not limited to, the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, the Superfund Amendments and Reauthorization Act of
1986 and Massachusetts General Laws, Chapters 21C and 21E, relating to the
environment, health, safety, sanitation, underground storage tanks and the
"release or threat of release" of Hazardous Materials (the "Environmental
Laws"). The term "Hazardous Materials" means (i) lead paint, asbestos, radon and
(ii) "oil", "hazardous materials", "hazardous wastes" and "hazardous substances"
as those terms are defined in the Environmental Laws.
3
4
1.6.1 COPIES OF NOTICES. To give to Mortgagee,
immediately, copies of all notices, reports, citations and other communications
given or received by Mortgagor in connection with any Environmental Laws whether
or not relating to the Premises.
1.6.2 TESTING AND REMEDIATION. Provided Mortgagee has
reasonable grounds to believe that Hazardous Materials have been released at the
Premises in amounts in excess of reportable thresholds, Mortgagee or its agents
may enter the Premises at any time and perform, or may require Mortgagor to
deliver to Mortgagee, whatever tests it considers necessary to determine the
existence or non-existence of Hazardous Materials. If Hazardous Materials exist
on the Premises in amounts exceeding reportable thresholds and such Hazardous
Materials are not contained and/or removed in accordance with applicable law by
Mortgagor within 30 days after receipt of notice thereof from Mortgagee or if
such Hazardous Materials cannot be contained and/or removed within such period,
Mortgagee has not commenced containment and/or removal and does not continue to
prosecute such containment and/or removal with reasonable diligence (in any
event such containment and/or removal must be completed within 180 days after
notice thereof from Mortgagee), Mortgagee has the right (but not the obligation)
to cause the Hazardous Material to be contained and/or removed, and, using
contractors of its choice, to enter the Premises to perform any remedial action
it considers necessary, all without incurring liability to Mortgagor for any
action taken by Mortgagee or its agents, except for liability incurred by
Mortgagor resulting from Mortgagees gross negligence.
1.7 INDEMNIFICATION. To defend, indemnify and hold Mortgagee
and its directors, officers, agents and employees harmless against all claims,
losses and liabilities, including reasonable attorneys' fees and costs of
litigation (but not including consequential, special, exemplary or punitive
damages), incurred by Mortgagee on account of (i) Mortgagor's failure to comply
with Environmental Laws, (ii) a release or threat of release of Hazardous
Materials on the Premises, (iii) any activity on or condition of the Premises
which requires removal, remediation or corrective action under applicable
Environmental Laws and (iv) any future law, regulation, judicial order or
governmental action affecting the Premises.
1.8 ALIENATION. Not to cause or permit, directly or indirectly,
whether voluntarily or by operation of law, (i) title to all or part of the
Premises to become vested in a person other than Mortgagor, or (ii) all or part
of the Premises to become subject to the provisions of Massachusetts General
Laws, Chapter 183A relating to condominiums. If any of the changes described
above occur, in addition to exercising remedies available to it, Mortgagee may,
at its option and without notice to Mortgagor, deal with the successor in
interest with reference to this Mortgage and the Obligations in the same manner
as with Mortgagor, without reducing or discharging Mortgagor's liability for the
Obligations.
SECTION 2 - EVENTS OF DEFAULT. The occurrence of one or more of the
following events or conditions is an Event of Default and a breach of the
condition of this Mortgage:
(i) The failure to pay an Obligation when due and, except in the
case of a demand Obligation, the continuation of the failure beyond an
applicable period of notice or grace;
4
5
(ii) The failure, other than in the payment of money, to perform or
observe an Obligation which continues beyond an applicable period of notice or
grace;
(iii) A statement, certificate, report, financial statement,
representation or warranty made or furnished to Mortgagee by a party to the Loan
Documents or in compliance with the provisions of the Loan Documents proves to
have been false or incomplete in any material respect when made;
(iv) Mortgagor or a guarantor of the Obligations (a) is or becomes
insolvent within the meaning of the Massachusetts Uniform Commercial Code; (b)
files a petition in bankruptcy or a petition to take advantage of an insolvency
act; (c) makes an assignment for the benefit of its creditors; (d) consents to
the appointment of a receiver or custodian of itself or of the whole or a
substantial part of its property; (e) is named debtor party in an involuntary
bankruptcy proceeding and the proceeding is not dismissed within sixty (60)
days; (f) files a petition or answer seeking reorganization or arrangement under
a Federal or state law; or (g) dies, dissolves or terminates its existence;
(v) With respect to Mortgagor or a guarantor, and without the
consent of either, a court enters an order (a) appointing a receiver or
custodian of either or of the whole or a substantial part the property of
either, or (b) approving a petition filed against either seeking reorganization
or arrangement under a Federal or state law, and the order is not vacated, set
aside or stayed within sixty (60) days after it is entered;
(vi) Under a law for the relief or aid of debtors, a court assumes
custody or control of Mortgagor or a guarantor or of the whole or a substantial
part of the property of either, and the custody or control is not terminated or
stayed within sixty (60) days after the date it is assumed;
(vii) A court enters final judgment against Mortgagor or a guarantor
for the payment of money, and within sixty (60) days after entry of the judgment
Mortgagor or the guarantor does not (a) discharge the judgment or provide for
its discharge in accordance with its terms, or (b) procure a stay of execution
and within the (60) day period, or such longer period during which execution of
the judgment has been stayed, appeal and cause the execution to be stayed during
the appeal;
(viii) The failure by Mortgagor or a guarantor (a) to pay when due
the principal of, or interest or premium on, any indebtedness (other than an
Obligation) incurred or assumed by Mortgagor or the guarantor for money borrowed
or for the acquisition of property or (b) to perform or observe any of the
obligations which are imposed on Mortgagor or the guarantor by an agreement
securing or evidencing the indebtedness or under which the indebtedness is
issued, and in either case the failure is not cured within an applicable period
of grace or notice; or
(ix) The occurrence of an Event of Default under the Loan Documents.
5
6
SECTION 3 - RIGHTS AND REMEDIES. Without prejudice to Mortgagee's
rights with respect to Obligations payable on demand, if an Event of Default
exists, Mortgagee may, without notice except to the extent notice is required by
law, exercise the rights and remedies provided in this Section 3, conferred by
law or under the Loan Documents with respect to the Premises, Mortgagor or any
other person. Mortgagee's rights and remedies are cumulative and not exclusive
of or alternative to any rights or remedies it would otherwise have. A delay or
failure by Mortgagee in exercising or enforcing its rights or remedies does not
constitute a waiver.
3.1 REMEDIES. Whenever an Event of Default exists, Mortgagee may:
(i) Declare the Obligations immediately due and payable, without
presentment, notice, protest or further demand, all of which are hereby
expressly waived;
(ii) Exercise the STATUTORY POWER OF SALE;
(iii) Initiate actions or proceedings available to Mortgagee under
applicable law to protect its interest in the Premises and the Obligations; or
(iv) Petition for the appointment of a receiver of the Premises,
which appointment may be made ex parte and without notice except to the extent
notice is required by law, without regard to the solvency of Mortgagor or a
guarantor at the time of application for the receiver and without regard to the
value of the Premises.
3.2 RECEIVER. Effective upon the occurrence of an Event of Default,
Mortgagor consents to the appointment of Mortgagee or other qualified person as
receiver, to take possession of and to operate the Premises and to collect the
Rents. Notwithstanding the appointment of a receiver or other custodian,
Mortgagee is entitled, as pledgee, to the possession and control of all cash,
deposits and instruments at the time payable or deliverable under this Mortgage.
3.3 SPECIFIC PERFORMANCE. Failure by Mortgagor to perform its
agreements contained in the Loan Documents will result in irreparable harm to
Mortgagee for which Mortgagee has no adequate remedy at law. Therefore,
Mortgagor agrees that its agreements contained in the Loan Documents are
specifically enforceable by Mortgagee.
3.4 FORECLOSURE SALES. Mortgagee has the right in case of a sale which
it is entitled to make, to sell the Premises at public auction, either as a
whole or by parcels and without regard to other collateral now or in the future
securing the Obligations. In the case of a sale by parcels, the purchaser of a
parcel will take good title, even if a sum may already have been realized from
the sale of other parcels sufficient to satisfy all the Obligations. The
foreclosure sale may be held at the offices of Mortgagee or on or near the
Premises, without notice or demand, except to the extent notice or demand is
required by law.
3.5 FORECLOSURE EXPENSES, SURPLUS. If (i) foreclosure, bankruptcy or
other legal proceedings involve Mortgagee's interest under this Mortgage,
whether the proceedings are begun
6
7
by Mortgagee or others and whether the proceedings are suspended or terminated
or the Premises redeemed, or (ii) Mortgagee takes possession of the Premises,
Mortgagee will be entitled to collect and Mortgagor agrees to reimburse
Mortgagee for all expenses, including reasonable attorneys' fees, incurred by
Mortgagee in the foreclosure, bankruptcy or other legal proceeding or in the
maintenance, protection and management of the Premises. If surplus proceeds are
realized from a foreclosure sale, Mortgagee will not be liable for interest on
the proceeds pending distribution, and all costs and reasonable attorneys' fees
incurred by it in proceedings to determine the person or persons entitled to the
surplus will be paid from the surplus proceeds.
3.6 FORBEARANCE NOT A WAIVER. The liability of Mortgagor will not be
reduced, the priority of this Mortgage will not be affected, and the rights of
Mortgagee with respect to Mortgagor or the security for the Obligations will not
be impaired by any of the following events, regardless of whether Mortgagee
receives additional consideration: (i) the sale of all or part of the Premises,
(ii) a forbearance by Mortgagee, (iii) an extension of the time for payment or
performance of the Obligations, (iv) a release of security for or a guarantor of
the Obligations or (v) an indulgence given by Mortgagee to Mortgagor or to any
other person having an interest in the Premises or liable for the Obligations.
Mortgagor waives notice of any extension, forbearance or indulgence and agrees
that no waiver, express or implied, by Mortgagee of a default by a party to the
Loan Documents will constitute a waiver of a future default in the same or any
other provision of the Loan Documents.
3.7 INSURANCE POLICIES. If this Mortgage is foreclosed, Mortgagor
grants to Mortgagee full power, as irrevocable attorney-in-fact of Mortgagor, to
cancel the insurance required to be maintained by Mortgagee under this Mortgage,
retain the return premiums and apply them to the Obligations or to transfer the
insurance to a person claiming title to the Premises as a result of foreclosure
proceedings.
SECTION 4 - DAMAGE TO PREMISES. Mortgagor appoints Mortgagee as its
irrevocable attorney-in-fact (i) to adjust and to settle claims on account of
damage to the Premises resulting from a taking or casualty, (ii) to receive all
condemnation and insurance proceeds ("Proceeds") arising out of the damage and
(iii) to endorse in favor of itself or any other person drafts or checks for
Proceeds received by it. Provided no Event of Default exists under the Loan
Documents, all Proceeds will be applied by Mortgagee, to the cost of restoring
the Premises. Mortgagee may, in its discretion, (a) pay the Proceeds to
Mortgagor for application to the cost of the work, or (b) advance the Proceeds
from time to time to Mortgagor and/or its contractor for application to the cost
of the work as the cost is certified to Mortgagee by an architect or contractor
in charge of the restoration who has been approved in writing by Mortgagee.
Mortgagee is not obligated to make advances if, as a result, the balance of the
Proceeds are or will become less than the amount specified in the architect's or
contractor's certificate as the amount required to complete the restoration.
Upon receipt by Mortgagee of satisfactory evidence that the restoration has been
completed, that the cost of all labor and materials has been paid in full and
that there are no liens on the Premises and if no Event of Default exists,
Mortgagee agrees to pay the balance of the Proceeds held by it to Mortgagor. If
the Proceeds held by
7
8
Mortgagee are insufficient to pay the entire cost of restoration, Mortgagor
agrees to pay the deficiency on demand. After the occurrence of an Event of
Default under the Loan Documents, Mortgagee may, at its option, apply all
Proceeds to the Obligations, whether or not then due, in any order Mortgagee
determines.
SECTION 5 - PAYMENTS BY MORTGAGEE. Mortgagee is authorized but not obligated
(i) to pay all Taxes with accrued interest, penalties and charges, (ii) to pay
the premiums for insurance required under the Loan Documents, (iii) to incur and
pay reasonable expenses, including attorneys' fees, in protecting its rights
under the Loan Documents, and maintaining, protecting or managing the collateral
securing the Obligations, (iv) to pay indebtedness secured by a mortgage of real
estate or security interest in property or Fixtures included as part of the
Premises, (v) to add all amounts paid or incurred for the above purposes to the
principal amount of the Obligations, and (vi) to apply to the above purposes or
to the repayment of amounts paid by Mortgagee, sums paid under the Loan
Documents as interest or principal. The amounts paid by Mortgagee will bear
interest at the highest rate payable under the Loan Documents and will be
payable on demand.
SECTION 6 - ENTRY BY MORTGAGEE. Mortgagee or its agents may enter the
Premises at any time upon reasonable advance notice, before or after an Event of
Default, to inspect the Premises, to appraise the Premises, to determine
compliance with the provisions of the Loan Documents and to take any action
while on the Premises authorized under this Mortgage or which it considers
necessary to preserve the value of the Premises. Entry by Mortgagee for the
purposes authorized under this Section will not be considered entry for any
other purpose or constitute possession of the Premises. Mortgagor agrees to
reimburse Mortgagee on demand for all expenses incurred in connection with an
entry made under this Section, including the cost of appraisal, testing,
remedial action or other activities by Mortgagee or its agents while on the
Premises other than expenses attributable to Mortgagee's gross negligence.
SECTION 7 - NOTICES AND COMMUNICATIONS. All notices, demands, requests and
other communications provided for or permitted under this Mortgage must be in
writing and be delivered by hand or sent by telecopy, nationally recognized and
reputable overnight delivery service, express mail, certified mail or
first-class mail, postage prepaid, to the parties, respectively at the following
addresses:
(a) If to Mortgagee, at the address stated at the beginning of this
Mortgage (or at such other address as Mortgagee designates in writing to
Mortgagor), with a copy to the persons Mortgagee designates in writing to
Mortgagor, or
(b) if to Mortgagor, at the address stated at the beginning of this
Mortgage (or at such other address as Mortgagor designates in writing to
Mortgagee) with a copy to the persons Mortgagor designates in writing to
Mortgagee.
A communication provided for in this Mortgage will become effective only when
the person to whom it is given receives it or is considered to have received it.
If it is mailed by express,
8
9
certified or first-class mail, it will be considered to be received on (i) the
second business day after being mailed or (ii) the day of its receipt, whichever
is earlier. If given by telecopy, it will be considered to be received when
confirmation of complete receipt is received by the transmitting person during
normal business hours on a business day, or on the next business day if
confirmation is received after normal business hours.
SECTION 8 - MISCELLANEOUS PROVISIONS. The following miscellaneous provisions
are applicable to this Mortgage:
8.1 SUCCESSORS AND ASSIGNS. The term "Mortgagee" includes
Mortgagee, its successors and assigns, and any subsequent holder or holders of
this Mortgage. The term "Mortgagor" includes Mortgagor and any subsequent owner
or owners of the equity of redemption of the Premises assented to by Mortgagee.
All of the agreements of Mortgagor are binding upon the successors and assigns
of the original Mortgagor and any person claiming under Mortgagor.
8.2 AMENDMENT. This Mortgage may not be amended except by
written agreement signed by Mortgagor and Mortgagee.
8.3 HEADINGS. The headings contained in this Mortgage are for
reference purposes only and do not affect the meaning or interpretation of this
Mortgage.
8.4 GOVERNING LAW. This Mortgage will be construed under and
governed by the laws of the Commonwealth of Massachusetts.
8.5 SEVERABILITY. If a provision of this Mortgage is held to be
invalid or unenforceable, the provision will be enforceable to the extent that a
court, after limiting or reducing it, considers it reasonable to enforce the
provision. If it is held to be unreasonable to enforce the provision to any
extent, the provision will be severed from this Mortgage and the remainder of
this Mortgage will continue in effect.
8.6 DISCHARGE. Upon satisfaction of the Obligations, Mortgagee
will execute and deliver to Mortgagor a discharge of mortgage in recordable
form.
SECTION 9 - CONSENT TO JURISDICTION; WAIVERS. MORTGAGOR IRREVOCABLY AND
UNCONDITIONALLY (i) SUBMITS TO PERSONAL JURISDICTION IN THE COMMONWEALTH OF
MASSACHUSETTS OVER ANY ACTION OR PROCEEDING ARISING OUT OF THE LOAN DOCUMENTS,
AND (ii) WAIVES ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY STATE (a) TO TRIAL BY
JURY, (b) TO OBJECT TO JURISDICTION WITHIN THE COMMONWEALTH OF MASSACHUSETTS OR
VENUE IN A PARTICULAR FORUM WITHIN THE COMMONWEALTH OF MASSACHUSETTS AND (c) TO
CLAIM OR RECOVER ANY DAMAGES OTHER THAN ACTUAL DAMAGES INCLUDING SPECIAL
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. MORTGAGOR AGREES THAT, IN ADDITION
TO METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER
9
10
APPLICABLE LAW, SERVICE MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
DIRECTED TO MORTGAGOR AT THE ADDRESS PROVIDED IN SECTION 7, WHICH SERVICE WILL
BE COMPLETE FIVE (5) DAYS AFTER BEING MAILED. This provision may not be
construed to prevent Mortgagor from bringing an action or proceeding or
exercising its rights in any other jurisdiction. Mortgagor acknowledges that it
has been informed by Mortgagee that the provisions of this Section constitute a
material inducement upon which Mortgagee has relied, is relying and will rely in
entering into this Mortgage and the other Loan Documents, and that it has
reviewed the provisions of this Section with its counsel. Either party may file
an original counterpart or a copy of this Section with any court as written
evidence of the consent of Mortgagor and Mortgagee to the waiver of their rights
to trial by jury.
WITNESS the execution hereof under seal this ______ day of April, 1996.
SPECTRAN CORPORATION
By:/s/Glenn E. Moore
-------------------
Its President
By:/s/ Bruce A. Cannon
-------------------
Its Treasurer
COMMONWEALTH OF MASSACHUSETTS
Worcester, ss. April 25, 1996
Then personally appeared the above-named Glenn Moore, its President,
and acknowledged the foregoing instrument to be the free act and deed of
SPECTRAN CORPORATION, before me.
/s/
----------------------
Notary Public
My Commission Expires:
--------------
10
11
COMMONWEALTH OF MASSACHUSETTS
Worcester, ss. April 25, 1996
Then personally appeared the above-named Bruce A. Cannon, its
Treasurer, and acknowledged the foregoing instrument to be the free act and deed
of SPECTRAN CORPORATION, before me.
/s/
----------------------
Notary Public
My Commission Expires:
--------------
11