EXHIBIT 10.20A
AMENDMENT NO.1 TO SUBORDINATED LOAN AGREEMENT
Amendment No. 1, dated as of December 23, 1997 ("Amendment"), to the
Subordinated Loan Agreement, dated as of September 16, 1996 (the Subordinated
Loan Agreement"), between First Albany Corporation, a New York corporation (the
"Company"), and Xxxxxx X. Xxxxx (the "Lender").
WHEREAS, in order to extend the maturity on the Note dated September 16,
1996 from the Company to the Lender and issued pursuant to the Subordinated Loan
Agreement (the "Original Note"), the Original Note has been cancelled as of the
date hereof and replaced with a note, dated the date hereof, and in
substantially the form attached hereto as Exhibit A;
and
WHEREAS, the parties hereto wish to make certain amendments to the
Subordinated Loan Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the parties
hereby agree as follows:
1.All capitalized terms shall have the respective meaning ascribed to
them in the Subordinated Loan Agreement unless otherwise defined
herein.
2.Section 6(E)(ii) of the Subordinated Loan Agreement is hereby
amended by deleting the number "3.5" in the first line thereof and
inserting the number "3.0" in lieu thereof.
3.Section 3(A) of the Subordinated Loan Agreement is hereby amended
by deleting the words "July 31, 2001" in the last sentence thereof
and inserting the words "December 31, 2002" in lieu thereof.
4.This Amendment may be executed in two or more counterparts each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been executed and delivered as
of the date first written above.
FIRST ALBANY CORPORATION
By: /s/ XXXX XXXXXXXX
-------------------------
Name:
Title:
LENDER
By: /s/ XXXXXX X. XXXXX
--------------------------
Xxxxxx X. Xxxxx
NOTE
$5,000,000.00* * * Albany, New York
December 23 1997
FOR VALUE RECEIVED, the undersigned FIRST ALBANY CORPORATION, a New
York corporation with offices at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000, promises to pay to the order of Xxxxxx X. Xxxxx, (herein called the
"Lender"), at the office of the Lender in Albany, New York or at such other
place as may be designated from time to time by the Lender, the sum of Five
Million ($5,000,000.00) Dollars and to pay interest on the disbursed,
unpaid principal, from the date hereof, at the rate of nine and one-quarter
(9.25%) percent per annum.
The undersigned promises to pay the principal and interest as follows:
a)Accrued interest to be paid on the 31st day of December, 1997, and
on the last business day of each succeeding month thereafter during
the term thereof .
b)The entire unpaid balance of principal together with accrued
interest to be paid to the Lender on the 31st day of December,
2002.
All amounts paid pursuant to this paragraph shall be applied first to
the payment of accrued interest to the date of payment and then to the
reduction of principal.
The undersigned agrees to pay accrued interest and/or principal when
due.
This Note is subject to the terms, covenants and conditions set forth
in a Subordinated Loan Agreement by and between the undersigned and the
Lender dated as of September 16, 1996, as amended (the "Loan Agreement"),
and all such terms, covenants and conditions of such Loan Agreement are all
hereby incorporated in this Note, with the same force and effect as though
said terms, covenants and conditions were fully set forth herein. This Note
is issued as a replacement for the note issued pursuant to the Loan
Agreement and dated September 16, 1996. The prepayment of any portion of
the principal or interest due under this Note shall be allowed in
accordance with the terms of the Loan Agreement.
DEFAULT. Upon the occurrence of certain Events of Default, specified
in the Loan Agreement, the principal of and interest on this Note may be
declared due and payable either immediately or as set forth therein. The
payment of principal of the Note may be suspended upon the occurrence of
certain events specified in the Loan Agreement, and such suspension will
not constitute a default hereunder.
The undersigned agrees to pay all costs and expenses incurred by the
holder hereof in enforcing this Note, including, without limitation,
reasonable attorneys' fees and legal expenses.
(CORPORATE SEAL) FIRST ALBANY CORPORATION
ATTEST By: /s/ XXXX X. XXXXXXXX
---------------------------
/s/ XXXXXXX X. XXXX Xxxx X. Xxxxxxxx, President
--------------------------
Xxxxxxx X. Xxxx, Secretary
THIS OPTION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAS BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A
VIEW TO THE DISTRIBUTION THEREOF, AND THIS OPTION MAY NOT BE SOLD OR
TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING IT
OR THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE
COMPANY) FROM THE TRANSFEROR REASONABLY ACCEPTABLE TO IT STATING THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT.
OPTION TO PURCHASE COMMON STOCK
OF
FIRST ALBANY COMPANIES INC.
1.a. This certifies that, subject to the terms set forth below,
in consideration of Xxxxxx X. Xxxxx, (the "Holder") making a loan of Five
Million and 00/100 Dollars ($5,000,000) (the Indebtedness") to a wholly-
owned subsidiary, First Albany Corporation, of FIRST ALBANY COMPANIES INC.
(the "Company"), the Company grants to Holder the option to purchase, at
any time during the Exercise Period (as defined below) 88,200 shares of its
common stock, par value $.01 per share, (the "Common Stock") at a purchase
price of $11.34 per share (the "Purchase Price"). The Purchase Price shall
be paid by the discharge of One Million and 00/100 Dollars ($1,000,000) of
the Indebtedness.
b. The Exercise Period shall begin on the date hereof and end
at 5:00 p.m., New York time on the earlier of (i) 5:00 p.m., New York time,
on the final scheduled maturity date of the Note (as defined in the
Subordinated Loan Agreement between the Holder and the Company dated
September 16, 1996 (the "Agreement")), (ii) the Change of Control Payment
Date (as defined in the Agreement); and (iii) the date of any Voluntary
Prepayment (as defined in the Agreement). Notwithstanding anything
contained herein to the contrary, any exercise of this option during the
period beginning six months prior to the final scheduled maturity date
shall not be effective until the final scheduled maturity date.
c. This Option may be exercised by surrender to the Company, at
its principal executive offices, of the subscription form attached hereto
duly executed and the simultaneous delivery to the Company of a document,
in form and substance acceptable to the Company, evidencing the discharge
of One Million and 00/100 Dollars ($1,000,000) of the Indebtedness.
d. The Company agrees to give the Holder thirty (30) days prior
written notice of any Voluntary Prepayment.
e. All notices sent to the Company and the Holder under this
Option shall be sent by certified mail, return receipt requested, or by
personal delivery addressed to the Company's General Counsel at its
principal executive offices, or addressed to the Holder at the address
provided in the Agreement or at such other address as the Holder may give
to the Company pursuant to the Agreement, respectively.
f. Certificates for shares of Common Stock purchased upon
exercise of this Option will be delivered by the Company to the Holder or
his designee within thirty (30) business days after the exercise of the
Option.
g. The Common Stock issuable upon the exercise of this Option
will be deemed to have been issued on the date (the "Exercise Date") the
Company receives satisfactory evidence of payment of the Purchase Price,
and the Holder will be deemed for all purposes to have become the record
holder of such Common Stock on the Exercise Date.
h. The issuance of certificates for shares of Common Stock upon
exercise of this Option shall be made subject to, and the Holder shall be
responsible for, any and all charges to the Holder for any issuance tax in
respect thereof or other cost incured by the Company in connection with
such exercise and the related issuance of shares of Common Stock. Each
share of Common Stock issuable upon exercise of this Option will, upon
payment of the Purchase Price thereof, be fully paid and nonassessable and
free from all liens and charges with respect to the issuance thereof.
i. After the date hereof and prior to the exercise of this
Option, the aggregate number of shares subject to this Option and the
exercise price shall be adjusted to reflect any stock splits or stock
dividends declared with respect to the Common Stock.
2. The Holder shall have no rights as a shareholder in respect
of shares covered by the Option prior to exercise of this Option with
respect thereto and until the Holder has made payment therefor as herein
provided, and the Holder shall have no rights with respect to such shares
not expressly conferred by this Option.
3. The Company shall at all times during the term of this
Option reserve and keep available such number of shares of its Common Stock
as will be sufficient to satisfy the requirements of this Option.
4. This Option shall be binding upon the Company's successors
and assigns. This Option shall not be transferred by the Holder without
the prior written consent of the Company; any such transfer without the
consent of the Company will render this Option void.
5. This Option shall be construed and enforced in accordance
with and governed by the laws of New York without regard to its principles
of conflicts of laws. Any action or proceeding brought by the Holder or
the Company against the other arising out of or related to the Option shall
be brought in a State or Federal Court of competent jurisdiction located in
Albany, New York and the Holder and the Company hereby submit to the
jurisdiction of such courts for the purposes of any such action or
proceeding.
6. The Holder agrees that he will comply with all applicable
laws, rules and regulations of all Federal and State securities regulators,
including but not limited to the Securities and Exchange Commission, the
New York Stock Exchange, the National Association of Securities Dealers and
applicable state securities regulators with respect to disclosure, filings
and any other requirements resulting in any way from the issuance of this
Option other than those required to be made by the Company in accordance
with applicable Federal and State securities laws and regulations.
IN WITNESS WHEREOF, the parties have signed this Option intending to
be legally bound hereto.
DATED: December 23, 1997 FIRST ALBANY COMPANIES INC.
/s/ XXXX X. XXXXXXXX
----------------------------
President
HOLDER:
/s/ XXXXXX X. XXXXX
----------------------------
Xxxxxx X. Xxxxx
SUBSCRIPTION FORM
(to the executed only upon exercise of Option)
The undersigned Holder of the Option granted pursuant to the Option
Agreement dated December 23, 1997 (the "Option Agreement"), irrevocably
exercises this Option to purchase all such shares of Common Stock of First
Albany Companies Inc. as are granted as of the date hereof pursuant to the
Option Agreement and herewith makes payment therefor, all at the price and
on the terms and conditions specified in this Option.
DATED:
Number of Shares: _______________________
__________________________________
(Signature of Holder)
__________________________________
(Name of Holder)
__________________________________
Street Address
__________________________________
(City) (State) (Zip)
