efc7-1952_fmsc13da.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C.
20549
SCHEDULE
13D
(Rule
13d-101)
Under
the Securities Exchange Act of 1934
(AMENDMENT
NO. 1)
INFORMATION
TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS
THERETO FILED PURSUANT TO RULE 13d-2(a)*
FIRST
ALBANY COMPANIES INC.
(Name
of Issuer)
COMMON
STOCK, PAR VALUE $0.01 PER SHARE
(Title
of Class of Securities)
318465101
(CUSIP
Number)
Robert
H.
Weiss
General
Counsel
MatlinPatterson
Global Advisers LLC
520
Madison Avenue
New
York,
New York 10022
Telephone:
(212) 651-9525
(Name,
Address and Telephone Number of Person Authorized
to
Receive Notices and Communications)
July
24, 2007
(Date
of Event which Requires Filing of this Statement)
If
the
filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-l(e), 240.13d-l(f) or 240.13d-l(g), check
the
following box |_|
Note:
Schedules filed in paper format shall include a signed original and five copies
of the schedule, including all exhibits. See ss. 240.13d-7 for other parties
to
whom copies are to be sent.
*The
remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed
to
be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Exchange Act”) or otherwise subject to the liabilities of that section of the
Exchange Act but shall be subject to all other provisions of the Exchange Act
(however, see the Notes).
INTRODUCTION.
This
amendment (this “Amendment No. 1”) amends the Schedule 13D Statement dated May
14, 2007 (“Statement”), filed on behalf of (i) MatlinPatterson FA Acquisition
LLC, a Delaware limited liability company (“Matlin FA”), (ii) MatlinPatterson
Global Opportunities Partners II L.P. (“Matlin Partners (Delaware)”), a Delaware
limited partnership, (iii) MatlinPatterson Global Opportunities Partners
(Cayman) II L.P. (“Matlin Partners (Cayman)” and, together with Matlin Partners
(Delaware), the “Matlin Partners”), a Cayman Islands limited partnership, (iv)
MatlinPatterson Global Advisers LLC (“Matlin Advisers”), a Delaware limited
liability company, by virtue of its investment authority over securities held
by
each of the Matlin Partners, (v) MatlinPatterson Global Partners II LLC (“Matlin
Global Partners”), a Delaware limited liability company, as the general partner
of each of the Matlin Partners, (vi) MatlinPatterson Asset Management LLC
(“Matlin Asset Management”), a Delaware limited liability company, as the holder
of all of the membership interests in Matlin Global Partners and Matlin
Advisers, (vii) MatlinPatterson LLC (“MatlinPatterson”), a Delaware limited
liability company, as the holder of all of the membership interests in Matlin
Asset Management, (vii) David J. Matlin and Mark R. Patterson each, as a holder
of 50% of the membership interests in MatlinPatterson, and (viii) Christopher
Pechock and Frank Plimpton, each an employee of Matlin Advisers, as the persons
named in the Proxies described therein, with respect to the common stock, par
value $0.01 per share (“Common Stock”), of First Albany Companies Inc. (the
“Issuer”). Capitalized terms used and not defined in this Amendment
No. 1 shall have the meanings set forth in the Statement. Except as
specifically provided herein, this Amendment No. 1 does not modify any of
the information previously reported on the Statement.
ITEM
4. PURPOSE OF TRANSACTION
Item
4 is amended and supplemented by adding the following:
According
to a form 8-K filed by the Issuer on March 12, 2007, on March 6, 2007 (the
"Form 8-K"), the Issuer and First Albany Capital Inc., a subsidiary of
the Issuer (“First Albany Capital”), entered into an Asset Purchase
Agreement (the “Asset Purchase Agreement”) with DEPFA BANK plc, an
Irish public limited company (“DEPFA”). Pursuant to the Asset Purchase
Agreement, DEPFA will purchase First Albany Capital’s Municipal Capital Markets
Group (the “Municipal Capital Markets Group”) and certain assets of the
Issuer and First Albany Capital related thereto as described in the Asset
Purchase Agreement for a purchase price of $12,000,000 in cash, subject to
certain upward and downward adjustments, including a downward adjustment in
the
event certain employees of the Municipal Capital Markets Group do not have
effective employment arrangements in place with DEPFA on the closing date or
are
not otherwise able to perform the essential functions of their jobs with DEPFA
following the closing. Further, pursuant to the Asset Purchase Agreement, DEPFA
will purchase First Albany Capital’s municipal bond inventory used in the
business of the Municipal Capital Markets Group, which is expected to range
in
value at closing from between $150,000,000 to $200,000,000.
According
to the Form 8-K, the purchase price for the municipal bond inventory will be
based on First Albany Capital’s estimate of the fair market value of each bond
in inventory at the close of business on the business day prior to
the closing (the “Municipal Bond Purchase Price”). The Municipal Bond
Purchase Price will be subject to adjustment, upward or downward,
dollar-for-dollar, by the amount, if any, by which the Municipal Bond Purchase
Price differs from the valuation price for the municipal bond inventory at
the
close of business on the business day prior to the closing as determined by
a
third party municipal bond valuation service. Pursuant to the Asset Purchase
Agreement, 5% of the Municipal Bond Purchase Price will be deposited into
escrow at the closing to be held by a third party escrow agent to secure the
purchase price adjustment with respect to the municipal bond
inventory.
In
connection with the transaction, DEPFA shall assume certain contractual
obligations of the Issuer and First Albany Capital and acquire the right to
use
the name “First Albany” and any derivative thereof except for certain
exceptions.
According
to the Form 8-K, the closing is currently expected to occur in the third quarter
of 2007. Pursuant to the Asset Purchase Agreement, in the event the closing
has not taken place on or before September 30, 2007, either First Albany
Capital or DEPFA may terminate the Asset Purchase Agreement.
The
foregoing discussion is based upon the disclosure
contained in the Form 8-K and is qualified in its entirety by reference
thereto and the Asset Purchase Agreement filed as an exhibit
thereto.
Voting
Agreement
On
July
20, 2007, Matlin FA entered into a voting agreement, dated as of June 29,
2007 with DEPFA (the “DEPFA Voting Agreement”), attached hereto as
Exhibit 1. The term of the DEPFA Voting Agreement commences on June 29,
2007 and expires on the earlier of (i) the Closing
Date,
as defined in the Asset Purchase Agreement; and (ii) the termination of
the
Asset Purchase Agreement in accordance with its terms.
Among
other things, the DEPFA Voting Agreement provides that (i) Matlin FA vote
any
shares of the Common Stock as to which Matlin FA and its affiliates are the
beneficial owner or Matlin FA is otherwise able to direct the voting thereof
(the “Shares”), in favor of an amendment to the certificate of incorporation of
the Issuer changing its corporate name to a name that does not include the
words
“First Albany” or any derivative thereof at every meeting of the Issuer at which
such matter is considered and every adjournment thereof; (ii) Matlin FA agree
not to solicit, encourage or recommend to other stockholders of the Issuer
that
(x) they vote their shares of Common Stock or any other securities in any
contrary manner, or (y) they not vote their shares of Common Stock at all;
and (iii) Matlin FA vote the Shares (x) in favor of the approval of
the Asset Purchase Agreement if submitted to a vote of the Issuer’s
stockholders, and (y) against any Incompatible Transaction, as defined in
the
DEPFA Voting Agreement, submitted to a vote of the Issuer’s
stockholders.
This
description of the DEPFA Voting Agreement does not purport to be complete
and is
qualified in its entirety by the full text of such agreement, a copy of which
is
attached hereto as Exhibit 1.
ITEM
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
Item
6 is amended and supplemented by adding the following:
The
information set forth under the heading "Voting Agreement" in Item 4 hereof
is
hereby incorporated by reference into this Item 6.
ITEM
7. MATERIAL TO BE FILED AS EXHIBITS
Item
7 is amended and supplemented by adding the following:
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1
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Voting
Agreement, dated as of June 29, 2007, by and between DEPFA Bank
plc and
MatlinPatterson FA Acquisition LLC.
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2
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Joint
Filing Agreement, dated as of July 25, 2007, among the Reporting
Persons.
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After
reasonable inquiry and to the best of our knowledge and belief, we certify
that
the information set forth in this Statement is true, complete and
correct.
Dated:
July 25, 2007
MatlinPatterson
FA Acquisition LLC
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
Title:
Member
MATLINPATTERSON
LLC
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
Title:
Member
MATLINPATTERSON
ASSET MANAGEMENT LLC
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
Title:
Chairman
MATLINPATTERSON
GLOBAL ADVISERS LLC
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
Title:
Chairman
MATLINPATTERSON
GLOBAL PARTNERS II LLC
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
Title:
Director
MATLINPATTERSON
GLOBAL OPPORTUNITIES
PARTNERS
II L.P.
By:
MatlinPatterson Global Partners II
LLC,
its
general partner
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
Title:
Director
MATLINPATTERSON
GLOBAL OPPORTUNITIES
PARTNERS
(Cayman) L.P.
By:
MatlinPatterson Global Partners II
LLC,
its
general partner
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
Title:
Director
DAVID
J.
MATLIN
By:
/s/
David J. Matlin
-------------------------------
Name:
David J. Matlin
MARK
R.
PATTERSON
By:
/s/
Mark R. Patterson
-------------------------------
Name:
Mark R. Patterson
FRANK
PLIMPTON
By:
/s/
Frank Plimpton
-------------------------------
Name:
Frank Plimpton
CHRISTOPHER
PECHOCK
By:
/s/
Christopher Pechock
-------------------------------
Name:
Christopher Pechock
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Voting
Agreement, dated as of June 29, 2007, by and between DEPFA Bank plc
and
MatlinPatterson FA Acquisition LLC.
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2
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Joint
Filing Agreement, dated as of July 25, 2007, among the Reporting
Persons.
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EXHIBIT
1
VOTING
AGREEMENT
This
Voting Agreement dated as of June 29, 2007 (the "Agreement"), is made by
and between DEPFA Bank plc, an Irish public limited company (“DEPFA”),
and MatlinPatterson FA Acquisition LLC, a Delaware limited liability company
(“MatlinPatterson”).
PRELIMINARY
STATEMENTS
A. DEPFA
entered into the Asset Purchase Agreement (the “Asset Purchase
Agreement”), dated as of March 6, 2007, with First Albany Capital Inc., a
New York corporation (“FA Capital”), and First Albany Companies Inc., a
New York corporation (“FAC”).
B. MatlinPatterson
entered into the Investment Agreement (the “Investment Agreement”) dated
as of May 14, 2007 with FAC, whereby MatlinPatterson will acquire certain shares
of FAC common stock, par value $0.01 per share (the “Common
Stock”).
C. Under
the Asset Purchase Agreement, FAC agreed to include as a management proposal,
to
be voted on by the shareholders of FAC at its next annual meeting of
shareholders no later than June 30, 2007, an amendment to its certificate of
incorporation (the “Charter Amendment”) changing its corporate name to a
name that does not include the words “First Albany” or any derivative thereof or
the word “FA” except for certain agreed derivations provided in Schedule 2.2
thereto. The approval of the Charter Amendment by FAC’s shareholders
is a condition precedent to the closing of the transactions contemplated by
the
Asset Purchase Agreement.
D. FAC
is seeking DEPFA’s consent to waive the requirement to have a shareholder
meeting on the Charter Amendment by June 30, 2007, and as a condition to
granting such waiver, DEPFA has requested that MatlinPatterson enter into this
Agreement and vote any Shares held by MatlinPatterson in favor of the Charter
Amendment.
E. As
used herein, the term "Shares" includes all shares of such Common Stock
as to which MatlinPatterson and its affiliates (at any time prior to the
termination of this Agreement) are the beneficial owner or is otherwise able
to
direct the voting thereof and all securities issued or exchanges with respect
to
any such Shares upon any reclassification, recapitalization, reorganization,
merger, consolidation, spin-off, stock split, combination, stock or other
dividend or any other change in FAC’s capital structure.
NOW,
THEREFORE, for good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties to this Agreement
intending to be legally bound do agree as follows:
1. Representations
and Warranties. MatlinPatterson represents and warrants to DEPFA
that (i) upon the closing of the recapitalization of FAC contemplated by
the Investment Agreement, MatlinPatterson expects to own and have the right
to
vote Shares constituting a majority of the shares of Common Stock then
outstanding; (ii) this Agreement has been duly authorized, executed and
delivered by all necessary organizational action of MatlinPatterson; and (iii)
this Agreement constitutes the legal, valid and binding obligation of
MatlinPatterson, enforceable in accordance with its terms.
2. Agreements
with Respect to the Shares. MatlinPatterson agrees during the
term of this Agreement:
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(i)
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to
vote the Shares in favor of the Charter Amendment at every meeting
of the
stockholders of FAC at which such matter is considered and at every
adjournment thereof;
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(ii)
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not
to solicit, encourage or recommend to other stockholders of FAC that
(x)
they vote their shares of Common Stock or any other securities in
any
contrary manner, or (y) they not vote their shares of Common Stock
at all;
and
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(iii)
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to
vote the Shares (x) in favor of the approval of Asset Purchase Agreement,
if submitted to a vote of the FAC stockholders, and (y) against any
Incompatible Transaction submitted to a vote of the FAC
stockholders.
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For
purposes of this Agreement, a “Incompatible Transaction” shall mean a
transaction of any kind (including, without limitation, a merger, consolidation,
share exchange, reclassification, reorganization, recapitalization, sale or
encumbrance of substantially all the assets of FAC or FA Capital outside the
ordinary course of business, or sale or exchange by stockholders of FAC or
FA
Capital of all or substantially all the shares of FAC's or FA Capital’s capital
stock) proposed by any person(s) pursuant to which (x) a person other than
FA
Capital would become the owner of the Business (as defined in the Asset Purchase
Agreement), unless such person assumes the obligations of FA Capital under
the
Asset Purchase Agreement, or (y) a person other than FAC would become the
controlling shareholder of FA Capital, unless such person assumes the
obligations of FAC under the Asset Purchase Agreement. For the
avoidance of doubt, the Investment Agreement and the transactions contemplated
thereby as of the date hereof shall not constitute an Incompatible
Transaction.
3. Limitation
on Sales. During the term of this Agreement, MatlinPatterson
agrees not to sell, assign, transfer, loan, tender, pledge, hypothecate,
exchange, encumber or otherwise dispose of, or issue an option or call with
respect to, any of the Shares unless the transferee, pledgee, optionee or other
counterparty, to the extent it could acquire rights to vote such Shares during
the term of this Agreement, agrees to be bound by and subject to the terms
and
conditions of this Agreement as if such transferee, pledgee, optionee or other
counterparty had executed this Agreement on the date hereof.
4. Specific
Performance. MatlinPatterson acknowledges that it will be
impossible to measure in money the damage to DEPFA if MatlinPatterson fails
to
comply with the obligations imposed by this Agreement, and that, in the event
of
any such failure, DEPFA will not have an adequate remedy at law or in
damages. Accordingly, MatlinPatterson agrees that injunctive relief
or any other equitable remedy, in addition to any remedies at law or damages,
is
the appropriate remedy for any such failure and will not oppose the granting
of
any such remedy on the basis that DEPFA has an adequate remedy at
law. MatlinPatterson agrees not to seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with DEPFA
seeking or obtaining such equitable relief.
5. Publicity. MatlinPatterson
agrees that, from the date hereof through the Closing Date, it shall not issue
any public release or announcement concerning the transactions contemplated
by
this Agreement without the prior consent of DEPFA (which consent shall not
be
unreasonably withheld or delayed), except as such release or announcement,
in
the opinion of MatlinPatterson's counsel, may be required by applicable law
or
NASDAQ rule.
6. Term
of Agreement; Termination.
The
term
of this Agreement shall commence on the date hereof and shall terminate upon
the
earlier to occur of (i) the Closing Date (as defined in the Asset Purchase
Agreement) and (ii) the due and proper termination of the Asset Purchase
Agreement in accordance with its terms. Upon such termination, no
party shall have any further obligations or liabilities hereunder.
7. Miscellaneous.
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(a)
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Entire
Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement
and
supersedes all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter
of this
Agreement.
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(b)
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Notices. Any
notice, request, instruction or other document to be given hereunder
by
any party to the others shall be in writing and shall be deemed to
have
been duly given on the next business day after the same is sent,
if
delivered personally or sent by telecopy or overnight delivery, or
five
calendar days after the same is sent, if sent by registered or certified
mail, return receipt requested, postage prepaid, as set forth below,
or to
such other persons or addresses as may be designated in writing in
accordance with the terms hereof by the party to receive such
notice.
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If
to
DEPFA:
DEPFA
BANK plc
1,
Commons Street
Dublin
1
Ireland
Facsimile:
+ 353 1 792 2210
Attention: Legal
Department
and
DEPFA
BANK plc, New York branch
623
Fifth
Avenue, 22nd Floor
New
York,
NY 10022
Facsimile:
212 796 9219
Attention: Executive
Director
If
to
MatlinPatterson:
MatlinPatterson
FA Acquisition LLC
c/o
MatlinPatterson Global Advisers LLC
520
Madison Avenue, 35th Floor
New
York,
New York 10022
Attention: General
Counsel
Fax:
(212) 651-4011
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(c)
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Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York as applied to contracts
made and fully performed in such state without giving effect to the
principles of conflict of laws
thereof.
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(d)
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Rules
of Construction. The descriptive headings in this Agreement
are inserted for convenience of reference only and are not intended
to be
part of or to affect the meaning or interpretation of this
Agreement. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed
to
include any other gender, masculine or feminine, or neuter, and any
other
number, singular or plural, as the context requires. As used in
this Agreement, the word "including" is not limiting, and the word
"or" is
not exclusive.
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(e)
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Parties
in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties to this Agreement and their
legal
successors-in-interest, and nothing in this Agreement, express or
implied,
is intended to confer upon any other person any rights or remedies
of any
nature whatsoever under or by reason of this
Agreement.
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(f)
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Counterparts. This
Agreement may be executed in one or more counterparts, and each of
such
counterparts shall for all purposes be deemed to be an original,
but all
such counterparts together shall constitute but one
instrument.
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(g)
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Assignment. No
party hereto shall assign its rights and obligations under this Agreement
or any part thereof, nor shall any party assign or delegate any of
its
rights or duties hereunder without the prior written consent of the
other
party, and any assignment made without such consent shall be
void. Except as otherwise provided herein, this Agreement shall
be binding upon and inure to the benefit of the parties hereto and
their
respective successors and permitted
assigns.
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(h)
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Amendment. This
Agreement may not be amended except by an instrument in writing signed
on
behalf of all the parties.
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(i)
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Extension;
Waiver. Any party to this Agreement may extend the time for
the performance of any of the obligations or other acts of any of
the
other parties to this Agreement or waive compliance by any other
party
with any of the agreements or conditions contained herein or any
breach
thereof. Any agreement on the part of any party to any such
extension or waiver shall be valid only if set forth in an instrument
in
writing signed on behalf of such
party.
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(j)
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Severability. The
provisions of this Agreement are severable and, if any thereof are
invalid
or unenforceable in any jurisdiction, the same and the other provisions
hereof shall not be rendered otherwise invalid or
unenforceable.
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IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Voting Agreement as of the date first above
written.
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DEPFA
BANK PLC
By:
/s/ Jim Ryan
Name:
Jim Ryan
Title:
By:
/s/ M. John Andrade
Name:
M. John Andrade
Title:
MATLINPATTERSON
FA ACQUISITION LLC
By:
/s/ Robert Weiss
Name:
Robert Weiss
Title:
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EXHIBIT
2
JOINT
FILING AGREEMENT
In
accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934,
as
amended, the undersigned hereby agree to the joint filing of MatlinPatterson
FA
Acquisition LLC, MatlinPatterson LLC, MatlinPatterson Asset Management LLC,
MatlinPatterson Global Advisers LLC, MatlinPatterson Global Partners II LLC,
MatlinPatterson Global Opportunities Partners II L.P., MatlinPatterson Global
Opportunities Partners (Cayman) II L.P., David J. Matlin and Mark R. Patterson,
on behalf of each of them a statement on Schedule 13D (including amendments
thereto) with respect to shares of common stock, par value $0.01 per share,
of
First Albany Companies Inc., a New York corporation, and that this Agreement
be
included as an Exhibit to such joint filing. This Agreement may be executed
in
any number of counterparts all of which taken together shall constitute one
and
the same instrument.
IN
WITNESS WHEREOF, the undersigned hereby execute this Agreement this 25th day of
July
2007.
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MATLINPATTERSON
FA ACQUISITION LLC
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
Title:
Member
MATLINPATTERSON
LLC
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
Title:
Member
MATLINPATTERSON
ASSET MANAGEMENT LLC
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
Title:
Chairman
MATLINPATTERSON
GLOBAL ADVISERS LLC
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
Title:
Chairman
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MATLINPATTERSON
GLOBAL PARTNERS II LLC
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
Title:
Director
MATLINPATTERSON
GLOBAL OPPORTUNITIES
PARTNERS
II L.P.
By:
MatlinPatterson Global Partners II LLC,
its
general partner
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
Title:
Director
MATLINPATTERSON
GLOBAL OPPORTUNITIES
PARTNERS
(Cayman) L.P.
By:
MatlinPatterson Global Partners II LLC,
its
general partner
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
Title:
Director
DAVID
J. MATLIN
By:
/s/ David J. Matlin
Name:
David J. Matlin
MARK
R. PATTERSON
By:
/s/ Mark R. Patterson
Name:
Mark R. Patterson
FRANK
PLIMPTON
By:
/s/ Frank Plimpton
Name:
Frank Plimpton
CHRISTOPHER
PECHOCK
By:
/s/ Christopher Pechock
Name:
Christopher Pechock
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