exv10w19



 




Exhibit 10.19




AMENDMENT NO. 6, WAIVER AND AGREEMENT



     
This Amendment No. 6, Waiver and Agreement
(“Agreement”) dated as of January 20, 2006
(“Effective Date”) is among Mariner Energy, Inc., a
Delaware corporation (the “Borrower”), Mariner LP LLC,
a Delaware limited liability company (“Mariner LLC”),
Mariner Energy Texas LP, a Delaware limited partnership
(“Mariner LP,” and together with Mariner LLC,
collectively referred to herein as the “Guarantors”),
the Lenders (as defined below), and Union Bank of California,
N.A., as administrative agent for such Lenders (in such
capacity, the “Administrative Agent”) and as issuing
lender for such Lenders (in such capacity, the “Issuing
Lender”).




RECITALS



     
A.     The Borrower, the Lenders,
Issuing Lender and the Administrative Agent are parties to the
Credit Agreement dated as of March 2, 2004, as amended by
that certain Amendment No. 1 and Assignment Agreement dated
as of July 14, 2004, that certain Amendment No. 2 and
Consent dated as of February 7, 2005, that certain
Amendment No. 3 and Consent dated as of March 3, 2005,
that certain Amendment No. 4 dated as of July 14,
2005, and that certain Amendment No. 5 dated as of
August 5, 2005 (as so amended, the “Credit
Agreement”).



     
B.     At the request of the Borrower,
the Administrative Agent and the Lenders wish to, subject to the
terms and conditions of this Agreement, (1) increase the
Borrowing Base (as defined in the Credit Agreement),
(2) acknowledge the existence of certain Defaults and
Events of Default (each as defined in the Credit Agreement),
(3) provide for a waiver of such existing Defaults and
Events of Default as set forth below, and (4) amend certain
provisions of the Credit Agreements as set forth herein.



     
THEREFORE, the Borrower, the Guarantors, the Lenders, the
Issuing Lender and the Administrative Agent hereby agree as
follows:




ARTICLE I.




DEFINITIONS



     
Section 1.01     Terms
Defined Above. As used in this Agreement, each of the
terms defined in the opening paragraph and the Recitals above
shall have the meanings assigned to such terms therein.



     
Section 1.02     Terms
Defined in the Credit Agreement. Each term defined in
the Credit Agreement and used herein without definition shall
have the meaning assigned to such term in the Credit Agreement,
unless expressly provided to the contrary.



     
Section 1.03     Other
Definitional Provisions. The words “hereby”,
“herein”, “hereinafter”, “hereof”,
“hereto” and “hereunder” when used in this
Agreement shall refer to this Agreement as a whole and not to
any particular Article, Section, subsection or provision of this
Agreement. Article, Section, subsection and Exhibit references
herein are to such Articles, Sections, subsections and Exhibits
of this Agreement unless otherwise specified. All titles or
headings to Articles, Sections, subsections or other divisions
of this Agreement or the exhibits








 



     
hereto, if any, are only for the convenience of the parties and
shall not be construed to have any effect or meaning with
respect to the other content of such Articles, Sections,
subsections, other divisions or exhibits, such other content
being controlling as the agreement among the parties hereto.
Whenever the context requires, reference herein made to the
single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the
singular. Words denoting sex shall be construed to include the
masculine, feminine and neuter, when such construction is
appropriate; and specific enumeration shall not exclude the
general but shall be construed as cumulative. Definitions of
terms defined in the singular or plural shall be equally
applicable to the plural or singular, as the case may be, unless
otherwise indicated.




ARTICLE II.




WAIVER; AMENDMENT; BORROWING BASE INCREASE



     
Section 2.01     Borrowing Base
Increase. Subject to the terms of this Agreement, the
Lenders and the Borrower hereby agree that, as of the Effective
Date, the Borrowing Base shall be $185,000,000. Such Borrowing
Base shall remain in effect until the next redetermination made
pursuant to Section 2.02 of the Credit Agreement, as
amended hereby.



     
Section 2.02     Waiver.



     
(a) The Borrower hereby acknowledges the existence of
Defaults and Events of Default (collectively, the “Waiver
Defaults”) arising directly as a result of the
Borrower’s failure to comply with the requirements of
Section 6.06 and Section 6.15 of the Credit Agreement
in respect of its formation of, and investments in, MEI Sub,
Inc., a Delaware corporation as a wholly owned Subsidiary of the
Borrower (the “MEI Sub”).



     
(b) The Lenders hereby agree, subject to the terms of this
Agreement, to waive the Waiver Defaults. The waiver by the
Lenders described in the preceding sentence is contingent upon
the satisfaction of the conditions precedent set forth below in
this Agreement. The waiver is limited to the Waiver Defaults and
to the extent described herein and shall not be construed to be
a consent to, or a permanent waiver of, the Sections covered by
the Waiver Defaults or any other terms, provisions, covenants,
warranties or agreements contained in the Credit Agreement or in
any of the other Loan Documents. The Lenders and the
Administrative Agent reserve the right to exercise any rights
and remedies available to them in connection with any other
present or future defaults with respect to the Credit Agreement
or any other provision of any Loan Document.



     
Section 2.03     Amendments to
Credit Agreement.



     
(a) Section 1.01 of the Credit Agreement is amended by
adding the following new terms in alphabetical order:






		
	 	
    “Amendment No. 6” shall mean that certain
    Amendment No. 6, Waiver and Agreement dated as of
    January 20, 2006 among the Borrower, the Lenders and the
    Administrative Agent.
	 
	 	
    “MEI Sub” shall mean MEI Sub, Inc., a
    Delaware corporation and a wholly owned Subsidiary of the
    Borrower.




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(b) Section 2.02(b) of the Credit Agreement is amended by
adding to the end thereof a new clause (v) as follows:






		
	 	
    (v) On April 1, 2006 the Administrative Agent and
    the Lenders may, at their sole option and discretion but subject
    to Section 2.02(f) and Section 2.02(d), redetermine the
    Borrowing Base. In connection with such redetermination, the
    Borrower shall provide the Administrative Agent and the Lenders
    with such information regarding the Borrower and its
    Subsidiaries’ business (including, without limitation, its
    Oil and Gas Properties, the Proven Reserves, and production
    relating thereto) as the Administrative Agent or any Lender may
    reasonably request. The Administrative Agent shall promptly, and
    in any event within 45 days after the Administrative Agent
    and the Lender’s receipt of such information, notify the
    Borrower in writing of a redetermination of the Borrowing Base
    pursuant to this clause (v) and the amount of the Borrowing
    Base as so redetermined.



     
(c) Section 6.15 of the Credit Agreement is amended and
restated to read in its entirety as follows:






		
	 	
    Section 6.15 Additional Subsidiaries. The
    Borrower shall not, nor shall it permit any of its Subsidiaries
    to, create or acquire any additional Subsidiaries without
    (a) such new Subsidiary executing and delivering to the
    Administrative Agent, at its request, a Guaranty, a Pledge
    Agreement, a Security Agreement and a Mortgage, and such other
    Security Instruments as the Administrative Agent or the Required
    Lenders may reasonably request, and (b) the delivery by the
    Borrower of any certificates, opinions of counsel, title
    opinions or other documents as the Administrative Agency may
    reasonably request.



     
(d) Article VI of the Credit Agreement is hereby
further amended by adding a new Section 6.23 to the end
thereof as follows:






		
	 	
    Section 6.23. Non-Guarantor Subsidiaries.
    Notwithstanding anything to the contrary contained herein,
    including any provision of this Article VI, unless the
    Borrower has delivered the agreements, documents and
    certificates described in Section 6.15 above with respect
    to MEI Sub, the Borrower shall not, nor shall it permit any of
    its other Subsidiaries to, (a) create, assume, incur or
    suffer to exist any Lien on or in respect of any of its Property
    for the benefit of MEI Sub, (b) sell, assign, pledge, or
    otherwise transfer any of its Properties to MEI Sub, or
    (c) make or permit to exist any loans, advances, or capital
    contributions to, or make any investment in, or purchase or
    commit to purchase any stock or other securities or evidences of
    indebtedness of or interests in, MEI Sub or in any Properties of
    MEI Sub; provided that the Borrower may permit to exist
    the initial investment made by the Borrower in MEI Sub in
    connection with the creation of MEI Sub.




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ARTICLE III.




REPRESENTATIONS AND WARRANTIES



     
Section 3.01     Borrower
Representations and Warranties. The Borrower represents
and warrants that: (a) after giving effect to this
Agreement, its representations and warranties contained in
Article IV of the Credit Agreement and its representations
and warranties contained in the Security Instruments, the
Guaranties, and each of the other Loan Documents to which it is
a party are true and correct in all material respects on and as
of the Effective Date, as though made on and as of such date,
except those representations and warranties that speak of a
certain date, which representations and warranties were true and
correct as of such date; (b) after giving effect this
Agreement, no Default has occurred and is continuing;
(c) the execution, delivery and performance of this
Agreement and the Borrowings up to the aggregate Commitment as
amended hereby, are within the corporate power and authority of
the Borrower and have been duly authorized by appropriate
corporate action and proceedings; (d) this Agreement
constitutes a legal, valid, and binding obligation of the
Borrower enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the rights of creditors
generally and general principles of equity; (e) there are
no governmental or other third party consents, licenses and
approvals required in connection with the execution, delivery,
performance, validity and enforceability of this Agreement that
have not been obtained; and (f) the Liens under the
Security Instruments are valid and subsisting and secure
Borrower’s obligations under the Loan Documents.



     
Section 3.02     Guarantors
Representations and Warranties. Each Guarantor
represents and warrants that: (a) its representations and
warranties contained in the Security Instruments, the
Guaranties, and each of the other Loan Documents to which it is
party are true and correct in all material respects on and as of
the Effective Date, as though made on and as of such date,
except those representations and warranties that speak of a
certain date, which representations and warranties were true and
correct as of such date; (b) after giving effect to the
terms of this Agreement, no Default has occurred and is
continuing; (c) the execution, delivery and performance of
this Agreement are within the corporate power and authority of
such Guarantor and have been duly authorized by appropriate
corporate action and proceedings; (d) this Agreement
constitutes a legal, valid, and binding obligation of such
Guarantor enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the rights of creditors
generally and general principles of equity; (e) there are
no governmental or other third party consents, licenses and
approvals required in connection with the execution, delivery,
performance, validity and enforceability of this Agreement that
have not been obtained; (f) it has no defenses to the
enforcement of its Guaranty; and (g) the Liens under the
Security Instruments are valid and subsisting and secure such
Guarantor’s obligations under the Loan Documents.




ARTICLE IV.




CONDITIONS



     
This Agreement shall become effective and enforceable against
the parties hereto, and the Credit Agreement shall be amended as
provided herein as of the Effective Date, upon the occurrence of
the following conditions precedent on or prior to the Effective
Date:




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Section 4.01     Documents;
Certificates. The Administrative Agent shall have
received multiple original counterparts, as requested by the
Administrative Agent, of:



          
(a)     this Agreement duly and validly
executed and delivered by duly authorized officers of the
Borrower, the Guarantors, the Administrative Agent, and the
Lenders;



          
(b)     an amendment or supplement to
the Pledge Agreement executed by the Borrower providing for the
pledge by the Borrower of the equity interests owned by the
Borrower in MEI Sub and otherwise in form and substance
satisfactory to the Administrative Agent;



          
(c)     stock certificates representing
the Equity Interests held by the Borrower in MEI Sub and stock
powers endorsed in blank for each such stock certificate; and



          
(d)     such other instruments,
documents and amendments or supplements as the Administrative
Agent may reasonably request.



     
Section 4.02     No
Default. Other than the Waiver Defaults, no Default
shall have occurred and be continuing as of the Effective Date.



     
Section 4.03     Representations.
After giving effect to this Agreement, the representations and
warranties of the Borrower and Guarantors in this Agreement
shall be true and correct in all material respects.



     
Section 4.04     Fees.
The Borrower shall have paid (a) a fee in the amount of
$56,250 for the account of the Lenders in consideration of the
Borrowing Base increase as required under Section 2.08(d)
of the Credit Agreement, and (b) all fees and expenses of
the Administrative Agent’s outside legal counsel and other
consultants pursuant to all invoices presented for payment on or
prior to the Effective Date.




ARTICLE V.




MISCELLANEOUS



     
Section 5.01     Effect on
Loan Documents; Acknowledgments.



          
(a)     The Borrower acknowledges that
on the date hereof all Obligations are payable without defense,
offset, counterclaim or recoupment.



          
(b)     The Administrative Agent, the
Issuing Lender, and the Lenders hereby expressly reserve all of
their rights, remedies, and claims under the Loan Documents.
Nothing in this Agreement shall constitute a waiver or
relinquishment of (i) any Default or Event of Default under
any of the Loan Documents other than as expressly set forth
above in connection with the Waiver Defaults, (ii) any of
the agreements, terms or conditions contained in any of the Loan
Documents other than as expressly set forth above,
(iii) any rights or remedies of the Administrative Agent,
the Issuing Lender or any Lender with respect to the Loan
Documents, or (iv) the rights of the Administrative Agent,
any Issuing Lender or any Lender to collect the full amounts
owing to them under the Loan Documents.




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(c) Each of the Borrower, the Guarantors, Administrative
Agent, Issuing Lender, and Lenders does hereby adopt, ratify,
and confirm the Credit Agreement, as amended hereby, and
acknowledges and agrees that the Credit Agreement, as amended
hereby, and all other Load Documents are and remain in full
force and effect, and each of the Borrower and the Guarantors
acknowledges and agrees that its liabilities under the Credit
Agreement and the other Loan Documents are not impaired in any
respect by this Agreement or the consents granted hereunder.



     
(d) From and after the Effective Date, all references to
the Credit Agreement and the Loan Documents shall mean such
Credit Agreement and such Loan Documents as amended by this
Agreement.



     
(e) This Agreement is a Loan Document for the purposes of
the provisions of the other Loan Documents. Without limiting the
foregoing, any breach of representations, warranties, and
covenants under this Agreement shall be a Default or Event of
Default, as applicable, under the Credit Agreement.



     
Section 5.02     Reaffirmation
of the Guaranty. Each Guarantor hereby ratifies,
confirms, acknowledges and agrees that its obligations under its
Guaranty are in full force and effect and that such Guarantor
continues to unconditionally and irrevocably guarantee the full
and punctual payment, when due, whether at stated maturity or
earlier by acceleration or otherwise, all of the Guaranteed
Obligations (as defined in its Guaranty), as such Guaranteed
Obligations may have been amended by this Agreement, and its
execution and deliver of this Agreement does not indicate or
establish an approval or consent requirement by such Guarantor
under its Guaranty in connection with the execution and delivery
of amendments to the Credit Agreement, the Notes or any of the
other Loan Documents.



     
Section 5.03     Counterparts.
This Agreement may be signed in any number of counterparts, each
of which shall be an original and all of which, taken together,
constitute a single instrument. This Agreement may be executed
by facsimile signature and all such signatures shall be
effective as originals.



     
Section 5.04     Successors
and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lenders, the Borrower and the
Administrative Agent hereto and their respective successors and
assigns permitted pursuant to the Credit Agreement.



     
Section 5.05     Invalidity.
In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement.



     
Section 5.06     Governing
Law. This Agreement shall be deemed to be a contract
made under and shall be governed by and construed in accordance
with the laws of the State of Texas.



     
Section 5.07     Entire
Agreement. THIS AGREEMENT, THE CREDIT AGREEMENT AS AMENDED
BY THIS AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO
WITH RESPECT TO THE SUBJECT MATTER




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HEREOF AND SUPERSEDE ANY PRIOR AGREEMENT, WRITTEN OR ORAL,
WITH RESPECT THERETO.



     
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



     
[SIGNATURES BEGIN ON NEXT PAGE]




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EXECUTED effective as of the date first above written.






		
	 	
    MARINER ENERGY, INC.






			
	 	By: 	
    /s/ Rick G. Lester
    



		
	 	
     




			
	 	 	
    Rick G. Lester
	 		
    Vice President and Chief Financial Officer






		
	 	
    MARINER LP LLC






			
	 	By: 	
    Mariner Energy, Inc., its sole member
	 
	 	By: 	
    /s/ Rick G. Lester
    



		
	 	
     




			
	 	 	
    Rick G. Lester
	 		
    Vice President and Chief Financial Officer






		
	 	
    MARINER ENERGY TEXAS LP, a Delaware limited partnership






			
	 	By: 	
    Mariner Energy, Inc., its sole general partner






			
	 	By: 	
    /s/ Rick G. Lester
    



		
	 	
     




			
	 	 	
    Rick G. Lester
	 		
    Vice President and Chief Financial Officer









 


		
	 	
     UNION BANK OF CALIFORNIA, N.A.,
	 	
    as Administrative Agent, as Issuing Lender and as a Lender







			
	 	By: 	
    /s/ Damien Meiburger
    



		
	 	
     




			
	 		
    Damien Meiburger, Senior Vice President









 






		
	 	
    BNP PARIBAS






			
	 	By: 	
    /s/ Betsy Jocher
    



		
	 	
     

	 	
    Name: Betsy Jocher



			
	 	Title:	
    Vice President






			
	 	By: 	
    /s/ Polly Schott



		
	 	
     

	 	
    Name: Polly Schott



			
	 	Title:	
    Vice President











 






		
	 	
    JPMORGAN CHASE BANK, N.A.






			
	 	By: 	
    /s/ Jo Linda Papadakis
    



		
	 	
     

	 	
    Name: Jo Linda
    Papadakis



			
	 	Title:	
    Vice President










 






		
	 	
    AMEGY BANK NATIONAL ASSOCIATION






			
	 	By: 	
    /s/ Kenneth R. Batson, III
    



		
	 	
     

	 	
    Name: Kenneth R.
    Batson, III



			
	 	Title:	
    Vice President, Energy Lending










 






		
	 	
    GUARANTY BANK






			
	 	By: 	
    /s/ Kelly Elmore, III
    



		
	 	
     

	 	
    Name: Kelly
    Elmore, III



			
	 	Title:	
    Senior Vice President










 






		
	 	
    HARRIS NESBITT FINANCING, INC.






			
	 	By: 	
    /s/ James V. Ducote
    



		
	 	
     

	 	
    Name: James V.
    Ducote



			
	 	Title:	
    Vice President