|
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
<PAGE>
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
--------------
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
------------------
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.
-------
(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
und
|
