Exhibit 10.7
FIRST AMENDMENT TO
SUBORDINATED PROMISSORY NOTE AND SECURITY AGREEMENT
This FIRST AMENDMENT TO SUBORDINATED PROMISSORY NOTE AND
SECURITY AGREEMENT entered into as of this 15th day of November, 2004 (this
"First Amendment"), is hereby entered into among PhoneTel Technologies, Inc., an
Ohio corporation ("PhoneTel"), Cherokee Communications, Inc., a Texas
corporation ("Cherokee", and together with PhoneTel, the "Company"), each having
its chief executive office at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx and
Davel Acquisition Corp., a Delaware corporation (the "Payee") having its chief
executive office at 0000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 as
a successor in interest to Cerberus Partners, L.P. ("Cerberus").
RECITALS
WHEREAS, the Company and Cerberus entered into that certain
Subordinated Promissory Note and Security Agreement dated November 17, 1999 (the
"Promissory Note");
WHEREAS, pursuant to the terms and conditions of the Loan
Purchase Agreement and Transfer and Assignment of Shares dated September 3,
2004, as amended by that certain letter agreement by and between the parties
dated November __, 2004 (the "Amended Loan Purchase Agreement") Cerberus sold,
transferred and assigned all of its rights and interest in the Promissory Note
to the Payee;
WHEREAS, the Company has requested, and the Payee has agreed,
that the Maturity Date, as defined in the Promissory Note, be extended.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and upon the terms and
conditions set forth herein the Company and the Payee hereby agree as follows:
1. INCORPORATION. The recitals set forth above are incorporated herein by
reference. Unless otherwise specified, all terms shall have those
meanings ascribed to them in the Promissory Note.
2. MATURITY DATE EXTENSION. The Maturity Date of the Promissory Note
shall be extended until September 29, 2005.
3. SUCCESSORS AND ASSIGNS. This First Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
4. COUNTERPARTS. This First Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts, each of
which shall be deemed an original and all of which, taken together,
shall be deemed to constitute one and the same instrument. Delivery of
an executed counterpart of this First Amendment by facsimile
transmission shall be as effective as delivery of an originally
executed counterpart hereof.
5. RATIFICATION. Except as expressly amended or waived herein, all of the
representations, warranties, terms, covenants and conditions of the
Promissory Note shall remain unamended and shall continue to be, and
shall remain, in full force and effect in accordance with their
respective terms.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed and delivered as of the date first above written.
COMPANY: PHONETEL TECHNOLOGIES, INC.,
an Ohio corporation
By: /S/ XXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
CHEROKEE COMMUNICATIONS, INC.,
a Texas corporation
By: /S/ XXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PAYEE: MOBILEPRO ACQUISITION CORP.,
a Delaware corporation
By: /S/ XXX X. XXXXXX
--------------------------------
Name: Xxx Xxxxxx
Title: Chief Executive Officer
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