exv4w1



 







Exhibit 4.1




AMENDMENT NO. 1 AND CONSENT




     This Amendment No. 1 and Consent (“Agreement”) dated as of April 7, 2006 (“Effective Date”) is
among Mariner Energy, Inc., a Delaware corporation (the “Parent”), Mariner Energy Resources, Inc.,
a Delaware corporation (together with the Parent, the “Borrowers”, each a “Borrower”), the Lenders
(as defined in the Credit Agreement described 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 Borrowers, the Lenders, the Issuing Lender and the Administrative Agent are parties to
the Amended and Restated Credit Agreement dated as of March 2, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”).



     B. At the request of the Borrowers, the Administrative Agent and the Lenders wish to, subject
to the terms and conditions of this Agreement, (i) consent to an increase in the Borrowing Base and
(ii) amend certain provisions of the Credit Agreement relating to Bond Issuances (as defined in the
Credit Agreement) as set forth herein.



     THEREFORE, the Borrowers, the subsidiaries of the Borrowers signatory hereto (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.

CONSENTS




     Section 2.01 Consent and Acknowledgment. Subject to the terms of this Agreement, the
Administrative Agent and the Lenders hereby consent to the Borrowing Base being increased to
$430,000,000, and the Administrative Agent, the Lenders and the Borrowers hereby acknowledge that
new $430,000,000 Borrowing Base amount shall remain in effect until the next redetermination or
adjustment of the Borrowing Base is made pursuant to Section 2.02 of the Credit Agreement.



ARTICLE III.

AMENDMENT TO CREDIT AGREEMENT




     Section 3.01 Restatement of Section 2.02(e) — Reduction and Redetermination for Bond
Issuance. The first sentence of Section 2.02(e) is hereby amended and restated in its entirety
with the following:




     “Notwithstanding the foregoing provisions of this Section 2.02, the Borrowing
Base then in effect on the date of the closing of a Bond Issuance shall
automatically reduce by an amount equal to (a) $55,000,000 with respect to the first
such Bond Issuance occurring after the date of this Agreement that is $250,000,000
or less in aggregate principal amount, (or if such Bond Issuance has an aggregate
principal amount of more than $250,000,000, an amount equal to $55,000,000 plus 25%
of the aggregate principal amount of such Bond Issuance that exceeds $250,000,000),
or (b) 25% of the aggregate principal amount of any other Bond Issuance;
provided that, to the extent any other Bond Issuance refinances or replaces
Debt owing in connection with a then-existing Bond Issuance, then only the principal
amount issued in excess of the principal amount being so refinanced shall be
included in the calculation described in this clause (b).



ARTICLE IV.

REPRESENTATIONS AND WARRANTIES




     Section 4.01 Borrowers Representations and Warranties. Each of the Borrowers
represents and warrants that: (a) 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, after giving effect to the terms of this
Agreement, 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 is within the corporate
power and authority of each of the Borrowers and have been duly authorized by appropriate corporate
action and proceedings; (d) this Agreement constitutes a legal, valid, and binding



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obligation of each of the Borrowers 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; and (f) the Liens under the
Security Instruments are valid and subsisting and secure each of the Borrowers’ obligations under
the Loan Documents.



     Section 4.02 Guarantors Representations and Warranties. Each Guarantor represents and
warrants that: (a) 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 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; (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 V.

CONDITIONS




     This Agreement and the consents contained herein shall become effective and enforceable
against the parties hereto, and the Credit Agreement shall be amended as provided herein, upon the
occurrence of the following conditions precedent:



     Section 5.01 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 Borrowers, the
Guarantors, the Administrative Agent, and the Lenders, and (b) such other instruments, documents
and amendments or supplements as the Administrative Agent may reasonably request.



     Section 5.02 No Default. No Default shall have occurred and be continuing as of the
Effective Date.



     Section 5.03 Representations. The representations and warranties in this Agreement
shall be true and correct in all material respects.



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     Section 5.04 Fees. The Borrower shall have paid (a) to the Administrative Agent for
the benefit of the Lenders a borrowing base increase fee equal to $75,000, and (b) all reasonable
fees and expenses of the Administrative Agent under the Credit Agreement that have been invoiced
and are then due and owing.



ARTICLE VI.

MISCELLANEOUS




     Section 6.01 Effect on Loan Documents; Acknowledgments.



     (a) Each of the Borrowers 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, (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.



     (c) Each of the Borrowers, 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 Loan Documents are and
remain in full force and effect, and each of the Borrowers 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 6.02 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.



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     Section 6.03 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 6.04 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Lenders, the Borrowers and the Administrative Agent hereto and their
respective successors and assigns permitted pursuant to the Credit Agreement.



     Section 6.05 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 6.06 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 6.07 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 HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS,
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 ENERGY RESOURCES, INC.

 	 
	 	By:  	/s/ Rick G. Lester
 	 
	 	 	Rick G. Lester 	 
	 	 	Vice President and Chief Financial Officer
 	 
	 
	 	MARINER LP LLC, a Delaware

limited liability company	 
	 	 	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 	 
	 	 	 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	LENDERS:



BNP PARIBAS

 	 
	 	By:  	/s/ Betsy Jocher
 	 
	 	 	Name:  	Betsy Jocher 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                            /s/ Polly Schott
 	 
	 	 	Name:  	Polly Schott 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)







 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Charles Kingswell-Smith
 	 
	 	 	Name:  	Charles Kingswell-Smith 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	NATEXIS BANQUES POPULAIRES

 	 
	 	By:  	/s/ Donovan C. Broussard
 	 
	 	 	Name:  	Donovan C. Broussard 	 
	 	 	Title:  	Vice President & Group Manager 	 
	 
	 	 	 
	 	By:  	                                            /s/ Louis P. Laville, III
 	 
	 	 	Name:  	Louis P. Laville, III 	 
	 	 	Title:  	Vice President & Group Manager 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	CAYLON NEW YORK BRANCH

 	 
	 	By:  	/s/ Page Dillehunt
 	 
	 	 	Name:  	Page Dillehunt 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                            /s/ Michael Willis
 	 
	 	 	Name:  	Michael Willis 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	GUARANTY BANK

 	 
	 	By:  	/s/ Kelly L. Elmore III
 	 
	 	 	Name:  	Kelly L. Elmore III 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	AMEGY BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Kenneth R. Batson, III
 	 
	 	 	Name:  	Kenneth R. Batson, III 	 
	 	 	Title:  	Vice President, Energy Lending 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	DZ BANK AG DEUTSCHE ZENTRAL-

GENOSSENSCHAFTSBANK FRANKFURT AM 

MAIN, NEW YORK BRANCH

 	 
	 	By:  	/s/ Richard L. Hagemann
 	 
	 	 	Name:  	Richard L. Hagemann 	 
	 	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By:  	                                            /s/ John Hammarskjold
 	 
	 	 	Name:  	John Hammarskjold 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	CITICORP USA, INC.

 	 
	 	By:  	/s/ David E. Hunt
 	 
	 	 	Name:  	David E. Hunt 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION

 	 
	 	By:  	/s/ Jo Ann Vasquez
 	 
	 	 	Name:  	Jo Ann Vasquez 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ Juli Bieser
 	 
	 	 	Name:  	Juli Bieser 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)




 









 








	 	 	 	 	 
	 	HARRIS NESBITT FINANCING, INC.

 	 
	 	By:  	/s/ James V. Ducote
 	 
	 	 	Name:  	James V. Ducote 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 1 and Consent

(Mariner Energy, Inc. and Mariner Energy Resources, Inc.)