AGENCY AGREEMENT
EXHIBIT
99.2
This
AGENCY
AGREEMENT,
dated
as of November 1, 2006 (this “Agency Agreement”), is entered into by and between
HSBC Bank USA, National Association (“HSBC”), a national banking association, as
trustee under the Pooling and Servicing Agreement (as defined below) and Xxxxx
Fargo Bank, N.A. (“Xxxxx Fargo”), a national banking association, as
agent.
RECITALS
WHEREAS,
HSBC is
the successor trustee under the Pooling and Servicing Agreement (the “Pooling
and Servicing Agreement”), dated as of July 1, 2006, among Bear Xxxxxxx Asset
Backed Securities I LLC (the “Depositor”), EMC Mortgage Corporation (the “Master
Servicer”) and Xxxxx Fargo (the “Predecessor Trustee”) for the Bear Xxxxxxx
Mortgage Funding Trust 2006-AC1, Asset-Backed Certificates, Series
2006-AC1;
WHEREAS,
HSBC is
the successor trustee under the Custodial Agreement, dated as of July 31, 2006
(the “Custodial Agreement”; together with the Pooling and Servicing Agreement,
the “Agreements”), by and among the Predecessor Trustee, the Depositor, EMC
Mortgage Corporation, as seller, the Master Servicer and Xxxxx Fargo Bank,
National Association, as custodian;
WHEREAS,
HSBC
desires to appoint Xxxxx Fargo as its agent for the purpose of executing certain
trusts and powers and performing certain duties of HSBC under the Agreements;
and
WHEREAS,
Xxxxx
Fargo desires to accept appointment as HSBC’s agent for the purposes of
executing certain trusts and powers and performing certain duties of HSBC under
the Agreements on the terms and conditions set forth herein;
NOW,
THEREFORE,
HSBC
and Xxxxx Fargo hereby agree as follows:
1. (a) HSBC
hereby appoints Xxxxx Fargo as its agent pursuant to Section 10.02 of the
Pooling and Servicing Agreement for the purpose of executing certain trusts
and
powers of HSBC under the Agreements. Xxxxx Fargo hereby accepts such appointment
as if Xxxxx Fargo had been appointed as trustee of the Trust Fund by the
provisions of the Pooling and Servicing Agreement.
(b) Xxxxx
Fargo has been provided with and has reviewed the Agreements and hereby agrees
to perform, on behalf of HSBC, all of the non-fiduciary duties of HSBC (defined
as those duties that would typically not be performed by a nominal trustee
in an
asset-backed securities transaction) under the Agreements (including, but not
limited to the Trustee’s reporting responsibilities under Article III of the
Pooling and Servicing Agreement and the Trustee’s responsibility for paying the
custodian’s fee pursuant to Section 3.3 of the Custodial Agreement) except as
otherwise provided in this Agency Agreement. Notwithstanding the foregoing,
HSBC
shall not delegate to Xxxxx Fargo its duty to accept all of the right, title
and
interest of the Depositor in and to the Trust Fund. Moreover, nothing in this
Agency Agreement shall be construed to confer a fiduciary obligation on Xxxxx
Fargo or to eliminate HSBC’s own fiduciary obligations. Xxxxx Fargo shall advise
HSBC when action by HSBC is necessary to comply with HSBC’s duties under the
Agreements. Xxxxx Fargo shall act as paying agent and certificate registrar
under the Pooling
and Servicing Agreement.
(c) HSBC
shall forward to Xxxxx Fargo a copy of all written notices received by HSBC
that
are addressed to HSBC promptly upon receipt.
(d) Xxxxx
Fargo shall carry out in timely fashion, and in accordance with the provisions
of the Agreements, all of the non-fiduciary duties HSBC is required to perform
under the Agreements on behalf of HSBC pursuant to the terms of this Agency
Agreement.
(e) Xxxxx
Fargo hereby agrees that it will not take any action that is not related to
the
administration of the Trust to (i) impair the validity or effectiveness of
the
Agreements or release any Person from any covenant or obligation under the
Agreements, except as expressly permitted thereby or (ii) creating any lien,
charge, security interest or similar encumbrance (other than as permitted under
the provisions of the Pooling and Servicing Agreement) on any portion of the
Trust Fund.
(f) Xxxxx
Fargo hereby accepts its appointment as (i) Certificate Registrar with respect
to all the Certificates pursuant to Section 7.02 of the Pooling and Servicing
Agreement, (ii) Paying Agent pursuant to Section 5.09 of the Pooling and
Servicing Agreement, (iii) Authenticating Agent pursuant to Section 7.01 of
the
Pooling and Servicing Agreement and (iv) calculating agent for the purposes
of
performing any calculations required of the Trustee pursuant to Article VI
of
the Pooling and Servicing Agreement. Xxxxx Fargo shall advise HSBC when action
is necessary to comply with HSBC’s remaining duties under the Agreements. Xxxxx
Fargo shall prepare for execution by HSBC, or shall cause the preparation by
other appropriate persons of, all such documents, reports, filings, tax returns,
instruments, certificates and opinions that it shall be the duty of HSBC to
prepare, file or deliver pursuant to the Pooling and Servicing Agreement and
shall, subject to this Agency Agreement, take all appropriate non-fiduciary
action that is the duty of HSBC to take pursuant to the Agreements, as
required.
(g) HSBC
hereby unconditionally appoints and constitutes Xxxxx Fargo its true and lawful
attorney-in-fact, irrevocably, with full power, coupled with an interest (in
the
name of HSBC or otherwise) and Xxxxx Fargo is hereby authorized and empowered
to
ask, require, demand, receive, endorse, execute and deliver on behalf of HSBC
all instruments and to take all other actions in connection with Xxxxx Fargo’s
obligations under this Agency Agreement. If reasonably required by Xxxxx Fargo,
HSBC shall furnish Xxxxx Fargo with any additional powers of attorney and other
documents necessary or appropriate to enable Xxxxx Fargo to carry out its
administrative duties under this Agency Agreement.
(h) Notwithstanding
any term or provision in this Agency Agreement to the contrary, the rights
and
obligations of HSBC as trustee under the Agreements shall not be diminished
by
the fact that HSBC may employ the services of Xxxxx Fargo to accomplish certain
of the duties of HSBC under this Agency Agreement.
(i) HSBC
agrees to cooperate and assist Xxxxx Fargo with respect to matters that in
the
reasonable judgment of Xxxxx Fargo are non-ministerial; provided that any action
taken by Xxxxx Fargo with respect to such non-ministerial matters shall, in
the
good faith judgment of Xxxxx Fargo, be in the best interests of the holders
of
the Certificates and HSBC.
(j) Xxxxx
Fargo agrees to provide the Depositor with a backup certification in the form
of
Exhibit A hereto if HSBC is required to provide its own backup certification
to
the Depositor for the Depositor to use in issuing the certification
required under Section 302(a) of the Xxxxxxxx-Xxxxx Act of
2002.
2. Xxxxx
Fargo shall not be required to execute or perform any power or duty under the
Agreements or to exercise any right under the Agreements if Xxxxx Fargo is
legally prohibited from doing so. All such powers, duties and rights are hereby
deemed not to have been delegated by HSBC or accepted by Xxxxx
Fargo.
3. HSBC
hereby agrees that any compensation payable to it under the Pooling and
Servicing Agreement shall be paid to Xxxxx Fargo. HSBC shall be compensated
for
its services performed and expenses incurred as Trustee by Xxxxx Fargo pursuant
to a fee schedule previously executed by HSBC and Xxxxx Fargo with respect
to
the Pooling and Servicing Agreement and attached hereto as Exhibit
B.
4. Xxxxx
Fargo shall be subject to the same standard of care and have the same
liabilities, rights and immunities as HSBC under the Pooling and Servicing
Agreement prior to the occurrence of an Event of Default. Xxxxx Fargo’s
obligations and standard of care shall not be affected by the occurrence of
an
Event of Default.
5. Xxxxx
Fargo hereby represents and warrants that:
(a) it
is a
national banking corporation and has been duly organized, and is validly
existing in good standing under the laws of the United States of America with
full power and authority (corporate and other) to enter into and perform its
obligations under this Agency Agreement;
(b) this
Agency Agreement has been duly executed and delivered by it, and, assuming
due
authorization, execution and delivery by HSBC, constitutes a legal, valid and
binding agreement of such entity, enforceable against it in accordance with
its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and to general principles
of
equity regardless of whether enforcement is sought in a proceeding in equity
or
at law;
(c) the
execution, delivery and performance by it of this Agency Agreement and the
consummation of the transactions contemplated thereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or taken
prior to the date thereof;
(d) the
execution and delivery of this Agency Agreement by it have been duly authorized
by all necessary corporate action on its part; neither the execution and
delivery by it of this Agency Agreement, nor consummation of the transactions
therein contemplated, nor compliance by it with the provisions thereof, will
conflict with or result in a breach of, or constitute a default under, any
of
the provisions of its articles of organization or by-laws or any law,
governmental rule or regulation or any judgment, decree or order binding on
it
to its knowledge or any of its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which it
is
a party or by which it is bound;
(e) there
are
no actions, suits or proceedings pending or, to its knowledge, threatened or
asserted against it, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated
by
this Agency Agreement or (ii) with respect to any other matter which in its
judgment will be determined adversely to it and will if determined adversely
to
it materially adversely affect its ability to perform its obligations under
this
Agency Agreement; and
(f) it
(i) is
a national banking association organized and doing business under the laws
of
the United States of America and authorized under such laws of the United States
of America to exercise corporate trust powers, (ii) has a combined capital
and
surplus of at least $50,000,000, (iii) is subject to supervision or examination
by federal or state authorities and (iv) is rated in one of the two highest
long-term debt categories of, or otherwise acceptable to, each of the Rating
Agencies.
6. HSBC
hereby represents and warrants that:
(a) this
Agency Agreement has been duly executed and delivered by it, and, assuming
due
authorization, execution and delivery by Xxxxx Fargo, constitutes a legal,
valid
and binding agreement of such entity, enforceable against it in accordance
with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a proceeding
in equity or at law;
(b) the
execution, delivery and performance by it of this Agency Agreement and the
consummation of the transactions contemplated thereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or taken
prior to the date thereof;
(c) the
execution and delivery of this Agency Agreement by it have been duly authorized
by all necessary corporate action on its part; neither the execution and
delivery by it of this Agency Agreement, nor consummation of the transactions
therein contemplated, nor compliance by it with the provisions thereof, will
conflict with or result in a breach of, or constitute a default under, any
of
the provisions of its articles of organization or by-laws or any law,
governmental rule or regulation or any judgment, decree or order binding on
it
to its knowledge or any of its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which it
is
a party or by which it is bound; and
(d) there
are
no actions, suits or proceedings pending or, to its knowledge, threatened or
asserted against it, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated
by
this Agency Agreement or (ii) with respect to any other matter which in its
judgment will be determined adversely to it and will if determined adversely
to
it materially adversely affect its ability to perform its obligations under
this
Agency Agreement.
7. (a) Xxxxx
Fargo shall indemnify and hold harmless HSBC, its officers, directors, employees
and agents, from and against any reasonable loss, liability, expense, damage
or
injury suffered or sustained by reason of Xxxxx Fargo’s bad faith, negligence or
willful misconduct in the performance of its obligations under this Agency
Agreement but only to the extent such amounts cannot be claimed by HSBC under
the Pooling and Servicing Agreement; provided that Xxxxx Fargo shall not
indemnify HSBC if such loss, liability, expense, damage or injury is caused
by
bad faith, negligence, or willful misconduct by HSBC.
(b) The
provisions of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof and shall survive the
termination of this Agency Agreement, the Agreements and/or the resignation
or
removal of HSBC as Trustee under the Pooling and Servicing
Agreement.
8. In
the
event that any legal action or proceeding is brought by a third party against
HSBC under the Agreements, the party hereto that shall control such litigation
shall be the party who may be held liable in such legal action or proceeding.
In
no event shall any party hereto settle any such legal action or proceeding
without the consent of the other party hereto if such other party would be
responsible for the payment of any amounts determined to be paid pursuant to
such settlement.
9. This
Agency Agreement may only be amended, supplemented or modified by an agreement
signed by HSBC and Xxxxx Fargo. This Agency Agreement may be terminated by
HSBC
or Xxxxx Fargo upon sixty (60) days prior written notice to the other parties
hereto; provided, however, no termination by Xxxxx Fargo shall become effective
until such time as a successor agent (which shall be appointed by Xxxxx Fargo
and be reasonably acceptable to HSBC) accepts its appointment as successor
agent.
10. The
representations and warranties in this Agreement and in any certificate or
other
document delivered pursuant hereto shall survive the date of this Agency
Agreement.
11. This
Agency Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and
the same instrument.
12. Capitalized
terms used and not defined herein have the respective meanings assigned to
them
in the Pooling and Servicing Agreement.
13. THIS
AGENCY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
IN
WITNESS WHEREOF, the parties hereto have caused this Agency Agreement to be
duly
executed as of the day and year first above written.
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HSBC
BANK USA, NATIONAL ASSOCIATION
as
Trustee
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By:
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/s/ Xxxxxxxx Xxxxxxx | ||||||||||||
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Name:
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Xxxxxxxx Xxxxxxx | ||||||||||||
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Title:
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Vice President | ||||||||||||
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XXXXX
FARGO BANK, N.A.
as
Agent
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By:
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/s/ Xxxxxxx Xxxxxxxx | ||||||||||||
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Name:
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Xxxxxxx Xxxxxxxx | ||||||||||||
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Title:
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Vice President | ||||||||||||
EXHIBIT
A
FORM
OF
CERTIFICATION TO BE PROVIDED BY XXXXX
FARGO BANK, N.A., AS AGENT, TO BEAR
XXXXXXX ASSET BACKED SECURITIES I LLC, AS DEPOSITOR
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re: Bear
Xxxxxxx Mortgage Funding Trust 2006-AC1 (the “Trust”), Asset-Backed
Certificates, Series 2006-AC1, issued pursuant to the Pooling and Servicing
Agreement, dated as of July 1, 2006, among Bear Xxxxxxx Asset Backed Securities
I LLC, as Depositor, Xxxxx Fargo Bank, National Association, as Trustee and
EMC
Mortgage Corporation as Seller and Master Servicer
Xxxxx
Fargo Bank, N.A., as agent for the Trustee (the “Agent”), hereby certifies to
the Depositor, and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification,
that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the “Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
2. To
my
knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report,
and (b) the Agent’s assessment of compliance and related attestation report
referred to below, taken as a whole, do not contain any untrue statement of
a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by such assessment of compliance
and attestation report;
3. To
my
knowledge, the distribution information required to be provided by the Agent
under the Pooling and Servicing Agreement for inclusion in the Reports is
included in the Reports;
4. I
am
responsible for reviewing the activities performed by the Agent under the
Pooling and Servicing Agreement, and based on my knowledge and the compliance
review conducted in preparing the compliance statement of the Agent required
by
the Pooling and Servicing Agreement, and except as disclosed in the Reports,
the
Agent has fulfilled its obligations under the Pooling and Servicing Agreement
in
all material respects; and
5. The
report on assessment of compliance with servicing criteria applicable to the
Agent for asset-backed securities of the Agent and each Subcontractor utilized
by the Agent and related attestation report on assessment of compliance with
servicing criteria applicable to it required to be included in the Annual Report
in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18
and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been disclosed
in the Annual Report.
In
giving
the certifications above, the Agent has reasonably relied on information
provided to it by the following unaffiliated parties: [names of servicer(s),
master servicer, subservicer, depositor, trustee, custodian(s)].
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Date:
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[Signature]
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[Title]
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EXHIBIT
B
HSBC
FEE
SCHEDULE FOR SERVING AS TRUSTEE
[PROVIDED
UPON REQUEST]
