Gorman John Joseph – ‘SC 13D’ on 2/20/01 re: Firstmark Corp/ME – EX-99.A

On:  Tuesday, 2/20/01, at 4:40pm ET   ·   Accession #:  950134-1-1622   ·   File #:  5-50803

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General Statement of Beneficial Ownership   —   Schedule 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D      General Statement of Beneficial Ownership              7     22K 
 2: EX-99.A     Promissory Note                                        4     19K 

EX-99.A   —   Promissory Note
Exhibit Table of Contents

EX-99.A
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 EXHIBIT A

 PROMISSORY NOTE

$530,000.00                                                      AUSTIN, TEXAS  
                                                            FEBRUARY 8, 2001

       FOR VALUE RECEIVED, the undersigned, Arch Aplin III, a Texas resident
("Borrower"), hereby promises and agrees to pay to the order of John Joseph     
Gorman, a Texas resident (the "Lender"), the aggregate principal sum of Five    
Hundred Thirty Thousand and 00/100 ($530,000.00), together with interest thereon
as hereinafter provided, in lawful money of the United States of America, in the
manner set forth herein, on or before the 31st day of August, 2001 (the         
"Maturity Date"), pursuant to the terms and conditions set forth herein.        

The principal of this note (this "Note") shall bear interest on the unpaid      
balance thereof at a fixed rate per annum equal to the Applicable Rate (as      
hereinafter defined). All interest on this Note shall be computed daily on the  
basis of the actual number of days elapsed over a year assumed to consist of    
three hundred sixty (360) days.                                                 

The term, "Applicable Rate," as used herein shall mean, at any time, a rate of  
interest per annum equal to the Prime Rate plus one and one-half percent        
(1-1/2%). The "Prime Rate" shall mean the prime rate of Bank of America, N.A. in
effect from day to day, with each such change in the rate of interest charged   
hereunder to become effective, without notice to Borrower, on the effective date
of each change in the Applicable Rate or the Maximum Rate (as hereinafter       
defined), as the case may be; provided, however, if at any time the rate of     
interest specified above as the Applicable Rate shall exceed the Maximum Rate,  
thereby causing the interest rate hereon to be limited to the Maximum Rate, then
any subsequent reduction in the Applicable Rate will not reduce the rate of     
interest hereon below the Maximum Rate until the total amount of interest       
accrued hereon equals the amount of interest which would have accrued hereon if 
the Applicable Rate had at all times been in effect.                            

     All payments of principal and interest and any other sums due under
this Note shall be made on or before the Maturity Date to Lender at 2700 Via    
Fortuna, Suite 400, Austin, Texas 78746 or to such other person or at such other
address as may be designated in writing by the holder of this Note. All payments
on this Note shall be applied first to the payment of accrued interest and then 
to the principal balance hereof, or in such other order as Lender may elect in  
its sole discretion. Borrower shall have the right to prepay, at any time and   
from time to time without premium or penalty, the entire unpaid principal       
balance of this Note or any portion thereof.                                    

 In order to secure the obligations and indebtedness of Borrower
evidenced by this Note, Borrower hereby grants Lender a security interest in and
pledges to Lender 749,067 shares of common stock, par value $.20, of Firstmark  
Corp., a Maine corporation, acquired by Borrower as of the date hereof.         

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Notwithstanding anything to the contrary contained herein, no 
provisions of this Note shall require the payment or permit the collection of   
interest in excess of the Maximum Rate. If any excess of interest in such       
respect is herein provided for, or shall be adjudicated to be so provided, in   
this Note or otherwise in connection with this loan transaction, the provisions 
of this paragraph shall govern and prevail, and neither Borrower nor the        
sureties, guarantors, successors or assigns of Borrower shall be obligated to   
pay the excess amount of such interest, or any other excess sum paid for the    
use, forbearance or detention of sums loaned pursuant hereto. If for any reason 
interest in excess of the Maximum Rate shall be deemed charged, required or     
permitted by any court of competent jurisdiction, any such excess shall be      
applied as a payment and reduction of the principal of indebtedness evidenced by
this Note; and, if the principal amount hereof has been paid in full, any       
remaining excess shall forthwith be paid to Borrower. In determining whether or 
not the interest paid or payable exceeds the Maximum Rate, Borrower and Lender  
shall, to the extent permitted by applicable law, (i) characterize any          
non-principal payment as an expense, fee, or premium rather as interest, (ii)   
exclude voluntary prepayments and the effects thereof, and (iii) amortize,      
prorate, allocate, and spread in equal or unequal parts the total amount of     
interest throughout the entire contemplated term of the indebtedness evidenced  
by this Note so that the interest for the entire term does not exceed the       
Maximum Rate.                                                                   

     The occurrence of any of the following shall constitute an event of
default ("Event of Default") hereunder: (i) failure to pay, when due, the       
principal, any interest, or any other sum payable hereunder, and the continuance
of such failure for five (5) business days after the date on which such         
principal, interest or other sum is due (whether upon maturity hereof, upon     
acceleration, or otherwise); or (ii) the insolvency, general assignment for the 
benefit of creditors or the commencement by or against Borrower of any case,    
proceeding or other action which is not dismissed within 60 days after the      
commencement thereof seeking the (a) reorganization, arrangement, adjustment,   
liquidation or dissolution of Borrower's debt under any law relating to         
bankruptcy, insolvency, reorganization or relief of debtors, or (b) appointment 
of a receivor, trustee, custodian or other similar official for all or          
substantially all of Borrower's assets. Upon the occurrence of an Event of      
Default hereunder, the entire principal amount hereof, and all accrued and      
unpaid interest thereon, and any other sums due hereunder shall be accelerated, 
and shall be immediately due and payable, at the option of the Lender, without  
demand or notice, and in addition thereto, and not in substitution therefor, and
the Lender shall be entitled to exercise any one or more of the rights and      
remedies at law or in equity. The failure of the Lender to exercise any right or
entitlement pursuant to this paragraph or to pursue such other remedies shall   
not constitute a waiver of such rights, entitlements or such other remedies or  
of the right to exercise any of the same with respect to such Event of Default  
or any subsequent Event of Default hereunder.                                   

       Upon the occurrence of an Event of Default, and regardless of whether
the Lender exercises the Lender's right to accelerate the payment of all amounts
payable hereunder as herein provided, the whole of the unpaid principal amount  
evidenced hereby, and all unpaid costs and expenses of collection, all unpaid   
accrued interest thereon shall, from the date when such payment was due and     
payable until the date of payment in full thereof, bear interest at the higher  
of the rate of interest hereinbefore provided for or the Maximum Rate or, if no 
Maximum Rate                                                                    

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exists, at a fixed rate per annum equal to 18%. As used herein, the term        
"Maximum Rate" means the maximum rate of nonusurious interest permitted from day
to day by applicable law, but otherwise without limitation, that rate calculated
after taking into account any and all relevant fees, payments, and other charges
in respect of this Note which are deemed to be interest under applicable law.   
For purposes of determining the Maximum Rate under Texas law, the applicable    
rate ceiling shall be the weekly ceiling described in, and computed in          
accordance with, Chapter 303 of the Texas Finance Code, as the same may be      
amended.                                                                        

       Borrower promises to pay all reasonable costs and expenses (including
without limitation reasonable attorneys' and paralegals' fees and disbursements)
incurred in connection with the collection hereof, and to perform each and every
covenant or agreement to be performed by Borrower under this Note.              

       Any payment on this Note coming due on a Saturday, a Sunday, or a day
which is a legal holiday in the place at which a payment is to be made hereunder
shall be made on the next succeeding day which is a business day in such place, 
and any such extension of the time of payment shall be included in the          
computation of interest hereunder.                                              

 Each Obligor (which term shall include Borrower and all makers,
sureties, guarantors, endorsers, and other persons assuming obligations pursuant
to this Note) under this Note hereby waives presentment, protest, demand, notice
of dishonor, and all other notices, and all defenses and pleas on the grounds of
any extension or extensions of the time of payments or the due dates of this    
Note, in whole or in part, before or after maturity, with or without notice. No 
renewal or extension of this Note, no release or surrender of any collateral    
given as security for this Note, no release of any Obligor, and no delay in     
enforcement of this Note or in exercising any right or power hereunder, shall   
affect the liability of any Obligor. The pleading of any statute of limitations 
as a defense to any demand against any Obligor is expressly waived.             

    No single or partial exercise by the Lender of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any     
other rights. No delay or omission on the part of the Lender in exercising any  
right hereunder shall operate as a waiver of such right or of any other right   
under this Note. The mere acceptance by the Lender of any payment hereunder that
is less than payment in full of all amounts due and payable at the time of such 
payment shall not be deemed to constitute a waiver of the Lender's right to     
exercise any of the foregoing rights or remedies at that time or in the future  
nor nullify any prior exercise of any rights or remedies the Holder may have.   
The remedies of the Lender, hereunder and under applicable law, shall be        
distinct and cumulative, may be pursued singly, successively or together at the 
discretion of the Lender, and may be exercised as often as occasion therefor    
shall arise. Time shall be of the essence in the payment of all amounts payable 
pursuant to this Note and the performance of Borrower's other obligations under 
this Note.                                                                      

        If any provision, or portion thereof, of this Note, or the application
thereof to any persons or circumstances shall to any extent be invalid or       
unenforceable, the remainder of this Note, or the application of such provision,
or portion thereof, to any other person or circumstances shall                  

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not be affected thereby, and each provision of this Note shall be valid and     
enforceable to the fullest extent permitted by law.                             

This Note has been delivered in, and shall be governed by and construed in      
accordance with the laws of the State of Texas. Lender, Borrower and each       
Obligor hereby (i) irrevocably and unconditionally submit to the jurisdiction of
any State of Texas court or Federal court of the United States of America       
sitting in the State of Texas in any action or proceeding arising out of or     
relating to this Note and (ii) agrees that all claims in respect of any such    
action or proceeding shall be heard and determined in such State of Texas or    
Federal court.                                                                  

    Whenever used herein, the words "Borrower," "Lender" and "Obligor"
shall be deemed to include their respective successors and assigns.             

        THIS NOTE AND ALL OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED
AND DELIVERED BY BORROWER IN CONNECTION WITH THE INDEBTEDNESS EVIDENCED BY THIS 
NOTE EMBODY THE FINAL, ENTIRE AGREEMENT OF BORROWER AND LENDER WITH RESPECT TO  
THE INDEBTEDNESS EVIDENCED BY THIS NOTE AND SUPERSEDE ANY AND ALL PRIOR         
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR 
ORAL, RELATING TO THE INDEBTEDNESS EVIDENCED BY THIS NOTE AND MAY NOT BE        
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL 
AGREEMENTS OR DISCUSSIONS OF BORROWER AND LENDER. THERE ARE NO ORAL AGREEMENTS  
BETWEEN BORROWER AND LENDER.                                                    

      IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first above written.                                                       

           BORROWER:

                /s/ ARCH APLIN
                                     -----------------------------------
                Arch Aplin III

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Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SC 13D’ Filing		Date		First		Last			Other Filings
Filed on:		2/20/01							3,  SC 13D
		2/8/01		1
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