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Exhibit
10.26
DEPOSIT ACCOUNT CONTROL
AGREEMENT
This DEPOSIT ACCOUNT CONTROL
AGREEMENT is dated as of September 26, 2005, and is by and
among Rosetta Resources Inc., a Delaware corporation
(“Customer”), BNP Paribas, as Administrative Agent as
provided below (“Administrative Agent”) and AMEGY BANK
NATIONAL ASSOCIATION, a national banking association
(“Bank”).
RECITALS
On July 7, 2005,
Customer entered into that certain Senior Revolving Credit
Agreement (the “Credit Agreement”) and that certain
Second Lien Term Loan Agreement (the “Loan Agreement”),
in each case with BNP Paribas, as initial lender and BNP Paribas,
in its capacity as Administrative Agent (in such capacity under the
Credit Agreement and under the Loan Agreement collectively called
“Administrative Agent”). Pursuant to the Credit
Agreement and the Loan Agreement the lenders from time to time
party thereto have extended, and will in the future extend, certain
credit to Customer, and, as a condition to such credit, Customer is
required to grant to Administrative Agent a security interest in a
certain deposit account maintained by Bank for Customer. The
parties are entering into this agreement to perfect Administrative
Agent’s security interest in and to that account and to
specify certain rights and duties of the parties with respect to
that account.
Defined terms used herein
shall have the meanings given to them in the Credit Agreement and
the Loan Agreement unless defined otherwise herein.
AGREEMENTS
Section 1. The
Account
(a) This Agreement applies to
depository Account No. 51575503 maintained by Customer with
Bank (such account, all funds at any time on deposit therein and
any proceeds, replacements or substitutions of such account or
funds therein are referred to herein as “Deposit
Account”).
(b) Customer has granted, and
does hereby grant, a security interest in the Deposit Account to
Administrative Agent. Bank acknowledges the security interest
granted by Customer to Administrative Agent in the Deposit Account.
Bank further acknowledges and represents that it is a
“bank” and that the Deposit Account is an
“account” as those terms are defined in
Section 9-102 of the Uniform Commercial Code as adopted in the
State of Texas (the “UCC”). For purposes of
Section 9-304 of the UCC, Bank’s jurisdiction is the
State of Texas.
Section 2. Control of
Deposit Account
(a) The Deposit Account shall
be under the control of Administrative Agent. Administrative Agent
shall at all times have “control” (as defined in
Section 9.104 of the UCC) of the Deposit Account. Bank shall
comply with instructions originated by Administrative Agent
directing disposition of funds in the Depository Account without
further consent by Customer.
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(b) Unless Bank shall have
received written notice from Administrative Agent (a “Default
Notice”) that an Event of Default has occurred under the Loan
Documents, Customer shall have full right of access to and
withdrawal from the Deposit Account.
(c) Subject to paragraph
(d) below, from and after the receipt by the Bank of a Default
Notice (and until Bank receives a written withdrawal of such
notice), (i) Administrative Agent shall have exclusive
dominion and control over the Deposit Account, (ii) neither
Customer nor any person acting through or on behalf of Customer
shall have any right of access to or withdrawal from the Deposit
Account, and (iii) Bank shall not comply with any instructions
originated by Customer or any such person directing disposition of
funds in the Deposit Account.
(d) Any Default Notice shall
be in writing, shall refer to this Agreement and shall include
clear and specific instruction with respect to the disposition of
funds in the Deposit Account. Bank shall have a period of time, not
exceeding one (1) Business Day (hereinafter defined) following
the date on which Bank receives a Default Notice to act on such
Default Notice. Bank may rely on a Default Notice notwithstanding
any other or conflicting information it may receive from Customer.
As used in this Agreement, the term “Business Day”
means any day on which Bank and Administrative Agent are not
authorized or required to close.
Section 3. Matters
Related to Deposit Account
(a) Bank waives any right it
may now or hereafter have to apply amounts in the Deposit Account
against the payment of any indebtedness from time to time owing to
Bank from Customer; provided, however, that Bank shall have the
right at any time to debit the Deposit Account (i) to pay the
Bank’s fees and charges applicable to the Deposit Account,
(ii) in connection with Uncollectible Drafts (hereinafter
defined) as provided in paragraph (b) below, and (iii) in
order to correct errors as provided in paragraph
(c) below.
(b) Any item deposited by or
on behalf of Customer in the Deposit Account which is returned for
insufficient or uncollected funds will be re-deposited by Bank one
time. If such item is returned unpaid a second time or if such
amount is otherwise uncollectible by Bank (“Uncollectible
Draft”) (including by any “stop payment order”
having been applied to such draft), Bank may debit the Deposit
Account for (i) the amount of such Uncollectible Draft (if
such amount has actually been paid by Bank to Administrative
Agent), and (ii) any fees due to Bank or charges incurred by
Bank in connection with its deposit or collection attempts
(collectively, “Costs of Uncollectible Drafts”). If the
amount in the Deposit Account is insufficient to fully reimburse
Bank for the Costs of Uncollectible Drafts, Customer and
Administrative Agent agree to pay such deficiency to Bank (provided
that Administrative Agent’s obligations shall be limited to
amounts actually paid to Administrative Agent which are not
recovered by Bank).
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(c) Bank shall have the right
to debit from the Deposit Account any amounts deposited therein in
error or as necessary to correct processing errors.
(d) Administrative Agent and
Customer agree that, except as specifically provided in this
Agreement, the Deposit Ac
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