SUBSIDIARY
GUARANTY
1.
Identification .
This Guaranty (the “Guaranty”),
dated as of __________, 2009, is entered into by Mesa Energy, Inc.,
a Nevada corporation, Mesa Energy Operating, LLC, a Texas limited
liability company (each a “Guarantor” and
collectively, “Guarantors”), for the benefit of
____________________ (“Lender”).
2.
Recitals .
2.1 Each
Guarantor is a direct subsidiary of Mesa Energy Holdings, Inc., a
Delaware corporation (“Parent”). The Lender
has made and/or is making a loan to Parent (the
“Loan”). Guarantor has and will obtain
substantial benefit from the proceeds of the Loan.
2.2 The
Loan is and will be evidenced by a certain secured promissory Note
issued by Parent on or about the date of this Guaranty
(“Note”) in the principal amount of $__________
pursuant to a subscription agreement dated at or about the date
hereof (“Subscription Agreement”). The
Note was or will be executed by Parent as “Borrower” or
“Debtor” for the benefit of Lender as the
“Holder” or “Lender” thereof.
2.3 In
consideration of the Loan and for other good and valuable
consideration, and as security for the performance by Parent of its
obligations under the Note and as security for the repayment of the
Loan and all other sums due from Parent to Lender arising under the
Note, Transaction Documents (as defined in the Subscription
Agreement) and any other agreement to which the Lender and Parent
are parties (collectively, the “Obligations”),
Guarantor, for good and valuable consideration, receipt of which is
acknowledged, has agreed to enter into this Guaranty.
3.
Guaranty .
3.1
Guaranty . Guarantor hereby unconditionally and
irrevocably guarantees, jointly and severally with any other
Guarantor, the punctual payment, performance and observance when
due, whether at stated maturity, by acceleration or otherwise, of
all of the Obligations now or hereafter existing, whether for
principal, interest (including, without limitation, all interest
that accrues after the commencement of any insolvency, bankruptcy
or reorganization of Parent, whether or not constituting an allowed
claim in such proceeding), fees, commissions, expense
reimbursements, liquidated damages, indemnifications or otherwise
(such obligations, to the extent not paid by Parent being the parts
of and components of the “Obligations”), and agrees to
pay any and all reasonable costs, fees and expenses (including
reasonable counsel fees and expenses) incurred by Lender in
enforcing any rights under the guaranty set forth
herein. Without limiting the generality of the
foregoing, Guarantor’s liability shall extend to all amounts
that constitute part of the Obligations and would be owed by Parent
to Lender, but for the fact that they are unenforceable or not
allowable due to the existence of an insolvency, bankruptcy or
reorganization involving Parent.
3.2
Guaranty Absolute . Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of
the Note, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms
or the rights of Lender with respect thereto. The
obligations of Guarantor under this Guaranty are independent of the
Obligations, and a separate action or actions may be brought and
prosecuted against Guarantor to enforce such obligations,
irrespective of whether any action is brought against Parent or any
other Guarantor or whether Parent or any other Guarantor is joined
in any such action or actions. The liability of
Guarantor under this Guaranty constitutes a primary obligation, and
not a contract of surety, and to the extent permitted by law, shall
be irrevocable, absolute and unconditional irrespective of, and
Guarantor hereby irrevocably waives any defenses it may now or
hereafter have in any way relating to, any or all of the
following:
(a) any lack of validity of the Note
or any agreement or instrument relating thereto;
(b) any change in the time, manner or
place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to
departure from the Note, including, without limitation, any
increase in the Obligations resulting from the extension of
additional credit to Parent or otherwise;
(c) any taking, exchange, release,
subordination or non-perfection of any Collateral, or any taking,
release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Obligations;
(d) any change, restructuring or
termination of the corporate, limited liability company or
partnership structure or existence of Parent; or
(e) any other circumstance
(including, without limitation, any statute of limitations) or any
existence of or reliance on any representation by Lender that might
otherwise constitute a defense available to, or a discharge of,
Parent or any other guarantor or surety.
This Guaranty shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of
any of the Obligations is rescinded or must otherwise be returned
by Lender, the Lender or any other entity upon the insolvency,
bankruptcy or reorganization of the Parent or otherwise (and
whether as a result of any demand, settlement, litigation or
otherwise), all as though such payment had not been
made.
3.3
Waiver . Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect
to any of the Obligations and this Guaranty and any requirement
that Lender exhaust any right or take any action against any
Borrower or any other person or entity or any
Collateral. Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this
Section 3.3 is knowingly made in contemplation of such
benefits. Guarantor hereby waives any right to revoke
this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Obligations, whether existing now or in
the future.
3.4
Continuing Guaranty; Assignments . This Guaranty
is a continuing guaranty and shall (a) remain in full force and
effect until the later of the indefeasible cash payment in full of
the Obligations and all other amounts payable under
