EXHIBIT 10.17
NOTE
$2,000,000.00 Date: March 29, 1995
FIRST ALBANY COMPANIES, INC.
Borrower
00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000
Xxxxxxxx's Address
1. XXXXXXXX'S PROMISE TO PAY
FIRST ALBANY COMPANIES, INC. (the "Borrower" or the "Undersigned"), for
value received, promises to pay to the order of THE XXXXXX CITY SAVINGS
INSTITUTION (the "Bank", "Lender" or "Note Holder") the sum of TWO MILLION AND
00/100 DOLLARS ($2,000,000.00) (the "Principal") at One Xxxxxx City Centre,
Hudson, New York 12534, which shall be paid at such rate and in accordance with
such terms as indicated below.
2. RATE
The interest rate that the Borrower shall pay shall be:
A variable Interest Rate equal to one and one-half (1.50) percentage points
per annum above the prime rate announced by the Lender from time to time, at its
principal office, as its best lending rate. This interest rate will change as
and when the prime rate changes. Such change will become effective immediately
upon announcement by the Lender of the change in its prime rate. The Lender
shall not be required to deliver any notice to the Borrower of a change in the
Interest Rate. However, upon request, the Lender shall provide the Borrower with
information regarding the dates and amounts of the change in its best lending
rate. At the present time the prime rate is nine percent (9.00%) and the initial
Interest Rate of this Note is ten and one-half percent (10.50%). There is no
maximum limit on the amount the interest rate may change.
3. REPAYMENT TERMS
The Borrower will repay this Note by making successive monthly payments of
Principal and interest of $65,005.00 each commencing on May 1, 1995 and on the
same date of each successive month thereafter until April 1, 1998, the end of
the term, when the remaining unpaid Principal and interest shall be due and
payable in full. Additionally, an interest only payment on the outstanding
Principal balance on the amount loaned for the period of March 29, 1995 through
March 31, 1995 shall be due on May 1, 1995.
If the Interest Rate changes, the amount of the monthly payment will
automatically change to such amount as is required to pay a Two Million and
00/100 Dollar ($2,000,000.00) loan over a period of three (3) years based upon
the new interest rate.
4. BUSINESS LOAN
The Borrower represents and warrants that this Note evidences a loan for
business or commercial purposes and is not a consumer transaction.
5. APPLICATION OF PAYMENTS
Each payment received on this Note shall be applied first to interest due
and then to the outstanding principal balance. However, if there are any
additional amounts due to the Bank hereunder, such as late charges, the Bank may
elect to apply any monies received for payment of such additional amounts due,
prior to applying same toward payment of the principal balance.
6. COLLECTION OR ENFORCEMENT COSTS
If it is necessary for the Bank to bring any action or proceeding in order
to collect any amounts due hereunder or as a result of a breach of any of the
terms or conditions herein, including an action or proceeding pursuant to
Article 9 of the Uniform Commercial Code, or if the Bank is made a party to a
lawsuit by virtue of this agreement, the Borrower shall be responsible for
paying all costs, expenses and reasonable attorneys' fees incurred by the Bank
in such lawsuit, action or proceeding, and also for all costs, expenses and
reasonable attorneys' fees incurred by the Bank incidental to the care,
preservation, processing and sale of the Collateral, or in any way relating to
the rights of the Bank hereunder.
7. BINDING AGREEMENT; GOVERNING LAW
The Note shall be binding upon the heirs, successors and assigns of the
Borrower and the Bank. It shall be interpreted and construed in accordance with
the laws of New York State.
8. MORE THAN ONE SIGNER
If more than one person or entity signs this Note as a Borrower, the
obligations contained herein shall be deemed joint and several and all
references to "Borrower" shall apply to all persons signing this agreement both
individually and jointly.
9. DEFAULT
The total unpaid balance of this Note shall become due and payable without
notice or demand upon the occurrence of any one of the following "Events of
Default"; (a) default in any payment of principal or interest when due under
this Note and the continuance thereof for twenty (20) days after the due date,
except that the twenty-day period shall not apply for any payment due at the end
of the term or upon demand, which shall be due immediately upon such date; (b)
default in any payment of late charges when due under this Note and the
continuance thereof for ten (10) days after the due date; (a) failure to fulfill
or perform any other term of this Note or to keep any promises made in this Note
or related Term Loan Agreement, mortgage, building loan agreement or security
agreement, if any, and such failure continues for a period of ten (10) days
after giving of notice except that no such notice shall be required upon a
default pursuant to paragraph 20 herein; (d) a false or incomplete statement in
any information submitted to the Bank in connection with this Note; (e) entry of
a judgment against the Borrower; (f) a significant decline in the value of any
real or personal property securing payment of this Note; (g) business failure or
dissolution of any Borrower; (h) commencement of any bankruptcy, receivership or
similar proceeding involving any Borrower as debtor; (i) transfer of any
interest in the Collateral pledged or granted to the Bank as a security
interest, or any other breach by the Borrower with regard to the terms and
conditions of the security instrument given by the Borrower to the Lender; (j)
transfer of any interest which the Borrower has in its wholly owned subsidiary,
First Albany Corporation, the transfer of any of the stock of First Albany
Corporation to any other party or entity or the sale or transfer of any of the
assets of First Albany Corporation to any other entity, other than in the
regular course of business of said corporation.
10. WAIVER
The Borrower and all endorsers, sureties and guarantors hereof hereby
jointly and severally waive presentment for payment, demand, notice of non-
payment, notice of protest and/or notice of dishonor, and protest of this Note.
11. EXCESS INTEREST
At no time shall the Interest Rate exceed the highest rate allowed by law
for this type of loan. Should this occur or should the Lender ever erroneously
collect interest at a rate which exceeds the applicable legal limit, such excess
will be credited to principal. However, this shall not be grounds for voiding
the Borrower's obligations hereunder and in such event, the Borrower's
obligations shall be deemed to be automatically modified to conform with any
such applicable legal limit.
12. GIVING OF NOTICES OR DEMANDS
Any notice or demand by the Bank to the Borrower shall be deemed to have
been made and completed at such time as the Bank shall mail by first class mail
said notice or demand to the Borrower at the address indicated in the
introductory paragraph, or at a different address if written notice of a change
is given by the Borrower to the Bank and upon receipt or refusal of delivery.
Any notice that must be given to the Bank undo this Note shall be given by
mailing it by first class mail to the Bank at its address stated in the
introductory paragraph which shall be deemed to be made and completed upon
receipt or refusal of delivery. In the alternative any notice or demand given
either by the Borrower or by the Lender shall be deemed sufficiently given if
delivered by any one of the following methods: (i) personal delivery which, in
case of notice to the Lender, shall be to an officer or principal thereof; (ii)
certified or registered mail, return receipt requested, postage prepaid and
properly addressed as set forth in the introductory paragraph; or (iii) Federal
Express or other nationally recognized courier services providing written
evidence of delivery.
13. RIGHT TO TRANSFER
The Bank may transfer or assign this Note and deliver all or any of its
rights in the Collateral held as security therefore to another party or entity
which shall thereupon become vested of all of the powers and rights given to the
Bank herein, and the Bank shall thereafter be forever relieved and fully
discharged of any liability or responsibility to the Borrower.
14. RIGHT OF SETOFF
The Bank, in addition to any right available to it under applicable law,
shall have the right, immediately and without notice or further action by it, to
set off against this Note and/or other liabilities of the Borrower hereof, all
money owed by the Bank to the Borrower in any capacity, whether by savings
account, checking account, Certificate of Deposit or otherwise; and the Bank
shall be deemed to have exercised such right of set off and to have made charge
against any such money immediately upon the occurrence of default, even though
such charge is made or entered on the books of the Bank subsequent thereto.
15. LATE CHARGES
In addition to any other payment required herein, the Borrower shall also
be obligated to pay a late charge of five percent (5%) for any payment due
hereunder which is received by the Bank more than ten (10) days after such
payment is due. This payment shall automatically be payable by the Borrower to
the Bank, without demand, and the failure to pay same shall constitute a default
in accordance with paragraph "9" of this Note.
16. ALL MODIFICATIONS IN WRITING
No modification or waiver of any of the provisions of this Note shall be
effective unless in writing, signed by an officer of the Bank and only to the
extent therein set forth, nor shall any such waiver be applicable, except in the
specific instance for which given.
17. WAIVER OF JURY TRIAL AND SETOFFS
The Borrower hereby waives trial by jury and the right to interpose any
setoffs of any kind in any litigation commenced by the Bank relating to this
Note or any Collateral security for this Note.
18. STRICT PERFORMANCE
The failure of the Bank to immediately act with respect to any of its
rights herein shall not be deemed to be a waiver on its part with respect to any
such rights, and the Bank shall have the right to so act with respect to any of
its rights herein at any time thereafter.
19. SECURED NOTE
In addition to the protections given to the Lender under this Note, the
Borrower has also given the Lender a Mortgage and/or Security Agreement covering
certain real and/or personal property (the "Security Instrument") dated the same
date as this Note, which provides the Lender with certain rights as set forth
herein and also sets forth certain obligations on the part of the Borrower. A
default in any of the provisions of the Security Instrument shall constitute a
default with respect to this Note.
20. SALE OR TRANSFER OF PROPERTY OR- INTEREST THEREIN IS
PROHIBITED
The Borrower may not sell or otherwise transfer all or any part of any
property pledged as collateral pursuant to any Security Instrument executed by
the Borrower in connection with this transaction except in the ordinary course
of business. In addition, if the Borrower is not a natural person, no beneficial
interest in the Borrower, corporation, partnership or other entity may be sold
or otherwise transferred to any other party without the express written consent
of the Lender. If all or any part of the property or any interest in the
property referred to herein is sold or otherwise transferred or if the
beneficial interest in the Borrower, corporation, partnership or other entity is
sold or otherwise transferred where the Borrower is not a natural person, the
entire indebtedness under the Note and underlying Security Instruments shall
become immediately due and payable. If the Borrower fails to pay these sums, the
Lender may bring a lawsuit for foreclosure and sale or invoke any remedies
permitted pursuant to this Note or any of the Security Instruments, without
further notice or demand on the Borrower.
21. XXXXXXXX'S RIGHT TO PREPAY
The Borrower shall have the right to make a full prepayment or partial
prepayment of the principal due hereunder at any time, without penalty. When the
Borrower makes a prepayment, the Borrower will tell the Lender, in writing, that
it is doing so. If the Borrower makes a partial prepayment, there will be no
change in the due dates or in the amount of the monthly payments unless
otherwise agreed to in writing by the Lender.
IN WITNESS WHEREOF, this Note has been signed by the Borrower at Albany,
New York on March 29, 1995.
FIRST ALBANY COMPANIES, INC., Borrower
By: /s/ Xxxxx Xxxxxxxxxx
---------------------
Xxxxx Xxxxxxxxxx
Chief Financial Officer
STATE OF NEW YORK:
ss.:
COUNTY OF ALBANY:
On this 29th day of March, 1995, before me personally came Xxxxx X.
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides in Albany, New York; that he is the Chief Financial Officer of First
Albany Companies, Inc., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of said corporation.
/s/ Xxxxxxxx Xxxxxxxx XX
-------------------------
Notary Public
XXXXXXXX XXXXXXXX XX
Notary Public, State of New York
Qualified in Columbia County
Commission Expires 2/28/97
