Exhibit 10.6
GUARANTY AGREEMENT
t 6 0 THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of December
29, 2005, is by Inphonic, Inc., a Delaware corporation (the "Guarantor"), in
favor of Teleplus Wireless Corp., a Nevada corporation (the "Purchaser").
WHEREAS, the Purchaser has acquired certain of the assets of Star Number,
Inc. ("the Vendor"), a wholly-owned subsidiary of the Guarantor, pursuant to an
Asset Purchase Agreement (the "Purchase Agreement") dated December 29, 2005, by
and between the Vendor and the Purchaser; and
WHEREAS, in connection with the closing of the transactions contemplated
by the Purchase Agreement, it is a condition of the Purchase Agreement that the
Guarantor provide a guarantee to the Purchaser of the Obligations (as defined
below) of the Vendor under the Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and in exchange for good
and valuable consideration, both the receipt and legal sufficiency of which are
hereby acknowledged, the Guarantor hereby agrees as follows:
1. Subject to Section 2, the Guarantor hereby unconditionally and
absolutely guarantees to the Purchaser the performance of all of the obligations
arising from time to time under the Purchase Agreement (all such obligations
being referred to herein as the "Obligations"). Upon written notice of any
failure of the Vendor promptly to pay when due of any sum of money owing under
the Purchase Agreement, the Guarantor shall promptly pay such Obligation.
2. The Guarantor acknowledges and agrees that this Guaranty Agreement is a
primary and unconditional obligation, and this Guaranty Agreement is
irrevocable. Notwithstanding anything in this Guaranty Agreement to the
contrary, the Guarantor shall have no obligation to the Purchaser beyond the
obligations of the Vendor under the Purchase Agreement.
3. The Guarantor hereby represents and warrants that this Guaranty
Agreement has been duly authorized, executed and delivered and constitutes a
legal, valid and binding obligation of the Guarantor, enforceable in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization and other laws of general application limiting the enforcement of
creditors' rights generally and to the fact that specific performance is an
equitable remedy available only in the discretion of the court, and the
execution and delivery of this Guaranty Agreement does not contravene the
provisions of, or create a default under, any material agreement or instrument
to which the Guarantor is a party or by which the Guarantor is bound.
4. The Guarantor agrees that its liabilities and obligations hereunder
shall not be impaired, modified, changed, released or limited in any manner
whatsoever by any impairment, modification, change, release or limitation of the
liability of the Vendor in bankruptcy as a result of the operation of any
present or future provision of the bankruptcy laws or other similar statutes.
The Guarantor's obligations hereunder shall not be affected or limited in any
way by any change in the status of the Vendor, including any dissolution or
liquidation of the Vendor.
5. The Guarantor waives notice of acceptance of this Guaranty, and
presentment, demand, protest, notice of protest and diligence in collecting any
Obligations. Guarantor acknowledges and agrees that the liabilities created by
this Guaranty Agreement are direct and are not conditioned upon pursuit by the
Purchaser of any remedy the Purchaser may have against the Vendor or any other
person or any security. No invalidity, irregularity or unenforceability by
reason of any bankruptcy, insolvency or other similar law, or any law or order
of any government or agency thereof purporting to reduce, amend or otherwise
affect the Obligations shall impair, affect or be a defense to the obligations
of the Guarantor under this Guaranty Agreement.
6. The Guarantor delivers this Guaranty Agreement based solely on the
Guarantor's independent investigation of the financial condition of the Vendor
and is not relying on any information furnished by the Purchaser. The Guarantor
assumes full responsibility for obtaining any further information concerning the
Vendor's financial condition, the status of the obligations or any other matter
which the Guarantor may deem necessary or appropriate from time to time. The
Guarantor hereby waives any duty on the part of the Purchaser, and agrees that
it is not relying upon nor expecting the Purchaser to disclose to the Guarantor
any fact now or hereafter known by the Purchaser, whether relating to the
operations or condition of the Vendor, the existence, liabilities or financial
condition of any co-guarantor of the Obligations, the occurrence of any default
with respect to the Obligations, or otherwise, notwithstanding any effect such
fact may have upon the Guarantor's risk hereunder or the Guarantor's rights
against the Vendor. The Guarantor knowingly accepts the full range of risk
encompassed in this Guaranty Agreement.
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7. The Purchaser shall have no duty to enforce or protect any rights which
the Guarantor may have against the Vendor, and the Guarantor assumes full
responsibility for enforcing and protecting any such rights.
8. If after receipt of any payment of all or any part of the Obligations,
the Purchaser is for any reason compelled to surrender such payment to any
person or entity, because such payment is determined to be void or voidable as a
preference, impermissible setoff, diversion of trust funds or for any other
reason, then to the extent of that payment, the Obligations shall be revived and
the obligations under this Guaranty Agreement shall be continued in effect
without reduction or discharge for that payment, and this Guaranty Agreement
shall continue in full force notwithstanding any contrary action which may have
been taken by the Purchaser in reliance upon such payment, and any such contrary
action so taken shall be without prejudice to the Purchaser's rights under this
Guaranty Agreement and shall be deemed to have been conditioned upon such
payment having become final and irrevocable.
9. Any notice required or permitted under this Agreement shall be given in
accordance with Section 15.9 of the Purchase Agreement; provided that any notice
to the Guarantor shall be sent to the Purchaser and to:
Inphonic, Inc.
1010 Wisconsin Avenue
Washington, DC 20007
Fax: (202) 333-8280
Attention: Walter W. Leach, General Counsel
10. This Guaranty Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns. The
Guarantor's obligations under this Guaranty Agreement may not be assigned
without the prior written consent of the Purchaser. If any part of this Guaranty
Agreement is adjudged invalid, then such partial invalidity shall not cause the
remainder of this Guaranty Agreement to be or to become invalid. The
interpretation and performance of this Guaranty Agreement shall be governed by
the laws of the State of Delaware (without reference to the choice of law
provisions of the State of Delaware).
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IN WITNESS WHEREOF, this Guaranty Agreement has been duly executed by
the undersigned as of the date first above written.
ATTEST: INPHONIC, INC.
By: /s/ Frank C. Bennett
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Secretary Name:
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Title:
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I have the authority to bind the
Corporation
ATTEST: TELEPLUS WIRELESS, CORP.
By: /s/ Marius Silvasan
- -------------------------------- --------------------------------
Secretary Name:
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Title:
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I have the authority to bind the
Corporation
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