Exhibit
10.6
AMENDED GUARANTY
New York, New York
December 28, 2006
FOR
VALUE RECEIVED, and in consideration of
note purchases, loans made or
to be made or credit otherwise extended or to be extended by Laurus
Master Fund,
Ltd. ("Laurus")
to or for the account of New Century
Energy Corp., a Colorado
corporation ("Debtor"), from time to time and at any time and for
other good and
valuable consideration and to induce Laurus, in its discretion, to
purchase such
notes, make
such loans or other
extensions of credit and to make or grant such
renewals, extensions,
releases of collateral or relinquishments of legal rights
as Laurus may deem
advisable, each of the undersigned (and each of them if more
than one, the liability under this guaranty ("Guaranty") being joint and
several) (jointly
and severally referred to as "Guarantors" or "the
undersigned")
unconditionally
guaranties to Laurus,
its successors, endorsees
and assigns
the prompt payment
when due (whether by acceleration or otherwise)
of all present and future obligations and
liabilities of any and all kinds of
Debtor to Laurus and
of all instruments of any nature evidencing or relating to
any such obligations and liabilities upon which Debtor
or one or more parties
and Debtor
is or may become liable to Laurus, whether
incurred by Debtor as
maker, endorser,
drawer, acceptor, guarantor, accommodation party or otherwise,
and whether due or to
become due, secured or unsecured, absolute or contingent,
joint or several, and however or whenever acquired
by Laurus, whether arising
under, out
of, or in connection with (i) that certain Securities
Purchase
Agreement dated
as of June 30, 2005 by and between
the Debtor and Laurus (the
"June 2005 Securities Purchase Agreement"), (ii) each Related
Agreement referred
to in the June 2005 Securities Purchase Agreement, (iii) that
certain Securities
Purchase Agreement
dated as of September 19, 2005 by and between the Debtor and
Laurus (the
"September 2005
Securities Purchase Agreement"), (iv) each Related
Agreement referred to in the September 2005 Securities Purchase
Agreement (each,
a "September
2005 Related Agreement") (the June 2005 Securities Purchase
Agreement, each
June 2005 Related Agreement, the September 2005 Securities
Purchase Agreement
and each September 2005 Related Agreement,
as each may be
amended, modified,
restated or supplemented from time to time, are collectively
referred to herein as
the "Documents"), and (v) each Related Agreement referred
to in the December 2006 Securities Purchase
Agreement (each, a "December 2006
Related Agreement"
and each December 2006 Related Agreement, as each
may be
amended, modified,
restated or supplemented from time to time, are collectively
referred to
herein as the
"December Documents"), or any documents, instruments
or agreements relating to or executed in connection with the
Documents, December
Documents or
any documents, instruments or agreements referred
to therein or
otherwise, or
any other
indebtedness, obligations or liabilities of the Debtor
to Laurus,
whether now existing or hereafter arising, direct or indirect,
liquidated or
unliquidated, absolute
or contingent, due or not due and whether
under, pursuant
to or evidenced by a note, agreement,
guaranty, instrument or
otherwise (all
of which are herein collectively referred to as the
"Obligations"), and
irrespective
of the genuineness, validity,
regularity or
enforceability of
such Obligations, or
of any instrument evidencing any of the
Obligations or of any
collateral therefor or of the existence or extent of such
collateral, and
irrespective of the
allowability, allowance or disallowance of
any or all of the Obligations in any case
commenced by or against Debtor under
Title 11, United States Code, including, without limitation,
obligations or
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indebtedness of Debtor
for post-petition interest, fees, costs and charges that
would have accrued or
been added to the Obligations but for the commencement of
such case.
Terms not otherwise defined herein shall
have the meaning assigned
such terms
in the Securities Purchase Agreement. In furtherance of the
foregoing, the
undersigned
hereby agrees as follows:
1.
No Impairment. Laurus may at any time and from time to time,
either
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before or after the maturity thereof, without
notice to or further consent of
the undersigned,
extend the time of payment of, exchange or surrender any
collateral for,
renew or extend any of
the Obligations or increase or decrease
the interest
rate thereon, and may
also make any agreement with Debtor or with
any other party to or person liable on any of the
Obligations, or interested
therein, for
the extension,
renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms
thereof or of
any agreement
between Laurus and Debtor or any such
other party or person, or
make any election of rights Laurus may deem
desirable under the United States
Bankruptcy Code,
as amended, or any other federal or state bankruptcy,
reorganization,
moratorium or
insolvency
law relating to or affecting the
enforcement of creditors' rights generally (any of the foregoing,
an "Insolvency
Law") without
in any way impairing or affecting this
Guaranty. This Guaranty
shall be effective regardless of the subsequent incorporation, merger or
consolidation of
Debtor, or any change in the composition, nature, personnel or
location of Debtor and shall extend to any successor entity to
Debtor, including
a debtor in possession or the like under any Insolvency Law.
2.
Guaranty Absolute. Subject to Section 5(c) hereof, each of the
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undersigned jointly
and severally
guarantees that the Obligations will be paid
strictly in
accordance
with the terms of the Documents, December
Documents
and/or any
other document, instrument or agreement
creating or evidencing the
Obligations,
regardless of
any law, regulation or order now or
hereafter in
effect in any jurisdiction affecting any of
such terms or the rights of Debtor
with respect thereto.
Guarantors hereby knowingly accept the full range of risk
encompassed within
a contract of
"continuing guaranty" which risk includes the
possibility that
Debtor will contract additional indebtedness for which
Guarantors may be liable hereunder after Debtor's financial
condition or ability
to pay its lawful debts when they fall due has
deteriorated, whether or not
Debtor has
properly authorized incurring such additional indebtedness. The
undersigned
acknowledge that
(i) no oral representations, including any
representations to
extend credit or provide other financial
accommodations to
Debtor, have
been made by Laurus to induce the
undersigned to enter into this
Guaranty and (ii) any extension of credit to the Debtor shall be
governed solely
by the provisions of the Documents and December Documents. The
liability of each
of the undersigned under this Guaranty
shall be absolute and unconditional, in
accordance with
its terms, and shall remain in full force and
effect without
regard to,
and shall not be released, suspended, discharged,
terminated or
otherwise affected
by, any circumstance or occurrence
whatsoever, including,
without limitation: (a) any waiver, indulgence, renewal, extension,
amendment or
modification of
or addition, consent or supplement to
or deletion from or any
other action
or inaction under or in respect of the Documents, December
Documents or any other
instruments or agreements relating to the Obligations or
any assignment
or transfer of any thereof, (b) any lack of validity or
enforceability of
any Document, December Documents or other documents,
instruments or
agreements
relating to the Obligations or any assignment
or
transfer of any thereof, (c) any furnishing of any additional
security to Laurus
or its assignees or any acceptance thereof or any
release of any security by
Laurus or its assignees, (d) any limitation on any party's liability or
<PAGE>
obligation under
the Documents, December Documents or any other documents,
instruments or
agreements
relating to the Obligations or any assignment
or
transfer of
any thereof or any invalidity or
unenforceability, in whole or in
part, of any such document, instrument or agreement or any term
thereof, (e) any
bankruptcy,
insolvency,
reorganization,
composition, adjustment, dissolution,
liquidation or
other like proceeding relating to Debtor, or
any action taken
with respect
to this Guaranty by any trustee or
receiver, or by any court, in
any such proceeding, whether or not the undersigned shall have notice or
knowledge of any of the foregoing, (f) any exchange, release or
nonperfection of
any collateral,
or any release, or amendment or waiver of or consent to
departure from
any guaranty or
security, for all or any of the Obligations, or
(g) any other
circumstance which might otherwise constitute a defense
available
to, or a discharge of,
the undersigned. Any amounts due from the undersigned to
Laurus shall
bear interest until such amounts are
paid in full at the highest
rate then applicable to the Obligations. Obligations include
post-petition
interest whether
or not allowed or allowable.
3.
Waivers.
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(a) This Guaranty is a guaranty of payment and not of
collection.
Laurus shall
be under no obligation
to institute suit, exercise rights or
remedies or
take any other action against Debtor or any
other person or
entity liable
with respect to any of the Obligations or resort to
any
collateral security
held by it to secure any of the Obligations as a
condition precedent to the undersigned being obligated to perform
as agreed
herein and each of the Guarantors hereby waives any and all rights
which it
may
have by statute or otherwise which would
require Laurus to do any of
the
foregoing.
Each of the Guarantors further consents and
agrees that
Laurus shall
be under no obligation to marshal any assets in favor
of
Guarantors, or against
or in payment of any or all of the Obligations. The
undersigned hereby
waives all suretyship defenses and any rights to
interpose any defense, counterclaim or offset of any nature and
description
which the undersigned may have or which may exist between and among
Laurus,
Debtor and/or the undersigned with respect to the undersigned's
obligations
under this
Guaranty, or which Debtor may assert on the
underlying debt,
including but not
limited to failure of consideration, breach of warranty,
fraud, payment
(other than cash payment in full of the Obligations),
statute of frauds,
bankruptcy, infancy, statute of limitations, accord and
satisfaction, and
usury.
(b) Each of the undersigned further waives (i) notice of the
acceptance of this
Guaranty, of the making of any such loans or extensions
of
credit, and of all notices and demands of any kind to which the
undersigned may
be entitled, including, without limitation, notice of
adverse change
in Debtor's financial
condition or of any other fact which
might materially
increase the risk of the undersigned and (ii) presentment
to
or demand of payment from anyone whomsoever liable upon any
of the
Obligations, protest,
notices of presentment, non-payment or
protest and
notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding
any payment or payments made by the
undersigned
hereunder, or
any setoff or application of funds of the
undersigned by
Laurus, the
undersigned
shall not be entitled
to be subrogated to any of
the rights of Laurus against Debtor or
against any collateral or guarantee
or
right of offset held by Laurus for the
payment of the Obligations, nor
shall the undersigned seek or be entitled to seek any contribution
or
reimbursement from
Debtor in respect of payments made by the
undersigned
hereunder, until
all amounts owing to Laurus by Debtor
on account of the
Obligations are
indefeasibly paid in full and Laurus' obligation to extend
credit pursuant
to the Documents and December Documents has been
irrevocably terminated. If, notwithstanding the foregoing, any
amount shall
be
paid to the undersigned on account of such
subrogation rights at any
time
when all of the Obligations shall not have been paid in full
and
Laurus' obligation to
extend credit pursuant to the Documents and December
Documents shall not
have been terminated, such amount shall be held by the
undersigned in
trust for Laurus, segregated from other funds of the
undersigned, and
