exv10w1






Exhibit 10.1




SECOND AMENDED AND RESTATED

HSBC REFUND ANTICIPATION LOAN

PARTICIPATION AGREEMENT



NOTE: CERTAIN MATERIAL HAS BEEN OMMITTED FROM THIS AGREEMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2. THE LOCATIONS OF THESE OMISSIONS ARE INDICATED THROUGHOUT THE AGREEMENT BY THE FOLLOWING MARKINGS: [***].


Dated as of January 12, 2010



 









 





Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page(s)	 
	ARTICLE I
	 	DEFINITIONS 	 	 	2	 
	 
	 	 	 	 	 	 
	Section 1.1.
	 	Definitions 	 	 	2	 
	Section 1.2.
	 	Rules of Construction 	 	 	2	 
	Section 1.3.
	 	Corporate Reorganizations 	 	 	2	 
	Section 1.4.
	 	Funding for Purchases of Participation Interests in HSBC RALs 	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	REPRESENTATIONS AND WARRANTIES OF HSBC NA, HSBC TRUST, AND HSBC TFS 	 	 	4	 
	 
	 	 	 	 	 	 
	Section 2.1.
	 	Representations Incorporated by Reference 	 	 	4	 
	Section 2.2.
	 	[Intentionally Deleted] 	 	 	4	 
	Section 2.3.
	 	Representations and Warranties of HSBC NA, HSBC TRUST, AND HSBC TFS Relating to Participated HSBC RALs	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	REPRESENTATIONS AND WARRANTIES OF BFC 	 	 	5	 
	 
	 	 	 	 	 	 
	Section 3.1.
	 	Representations Incorporated by Reference 	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	PURCHASE AND SALE OF PARTICIPATION INTERESTS 	 	 	5	 
	 
	 	 	 	 	 	 
	Section 4.1.
	 	Purchase and Sale of Participation Interests in HSBC RALs 	 	 	5	 
	Section 4.2.
	 	Purchase Price 	 	 	6	 
	Section 4.3.
	 	Payment 	 	 	6	 
	Section 4.4.
	 	Right to Exclude Certain RALs 	 	 	6	 
	Section 4.5.
	 	Certain Rights of HSBC NA and HSBC Trust 	 	 	7	 
	Section 4.6.
	 	Information to be Furnished by HSBC TFS to BFC 	 	 	7	 
	Section 4.7.
	 	True Sale and Nonconsolidation Opinions 	 	 	7	 
	Section 4.8.
	 	Right of BFC to Sell Participation Rights 	 	 	8	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	SERVICING OF PARTICIPATED HSBC RALS 	 	 	9	 
	 
	 	 	 	 	 	 
	Section 5.1.
	 	Servicing Agreement 	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	REPURCHASE OF PARTICIPATION INTERESTS 	 	 	9	 
	 
	 	 	 	 	 	 
	Section 6.1.
	 	Repurchase Events 	 	 	9	 
	Section 6.2.
	 	Repurchase Remedy 	 	 	10	 
	Section 6.3.
	 	Procedures for Repurchase 	 	 	10	 
	Section 6.4.
	 	Impairment 	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	TERM AND TERMINATION 	 	 	10	 






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Table of Contents (cont’d)






	 	 	 	 	 	 	 
	 	 	 	 	Page(s)	 
	Section 7.1.
	 	Term 	 	 	10	 
	Section 7.2.
	 	Termination 	 	 	11	 
	Section 7.3.
	 	Effect of Termination 	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	DEFAULT OF HSBC BANK AND HSBC TFS AND REMEDIES OF BFC 	 	 	11	 
	 
	 	 	 	 	 	 
	Section 8.1.
	 	HSBC NA, HSBC Trust, and HSBC TFS Events of Default 	 	 	11	 
	Section 8.2.
	 	Remedies 	 	 	12	 
	Section 8.3.
	 	Default Rate 	 	 	12	 
	Section 8.4.
	 	Waiver 	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	DEFAULT OF BFC AND REMEDIES OF HSBC TFS 	 	 	12	 
	 
	 	 	 	 	 	 
	Section 9.1.
	 	BFC Events of Default 	 	 	12	 
	Section 9.2.
	 	Remedies 	 	 	13	 
	Section 9.3.
	 	Default Rate 	 	 	13	 
	Section 9.4.
	 	Waiver 	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	MISCELLANEOUS 	 	 	13	 
	 
	 	 	 	 	 	 
	Section 10.1.
	 	Independent Evaluation 	 	 	13	 
	Section 10.2.
	 	Survival 	 	 	13	 
	Section 10.3.
	 	No Waivers; Remedies Cumulative 	 	 	14	 
	Section 10.4.
	 	Notices 	 	 	14	 
	Section 10.5.
	 	Severability 	 	 	14	 
	Section 10.6.
	 	Amendments and Waivers 	 	 	14	 
	Section 10.7.
	 	Successors and Assigns 	 	 	14	 
	Section 10.8.
	 	Headings 	 	 	14	 
	Section 10.9.
	 	Alternative Dispute Resolution 	 	 	14	 
	Section 10.10.
	 	Governing Law; Submission To Jurisdiction 	 	 	15	 
	Section 10.11.
	 	Waiver of Jury Trial 	 	 	15	 
	Section 10.12.
	 	Counterparts 	 	 	15	 
	Section 10.13.
	 	Entire Agreement 	 	 	15	 
	Section 10.14.
	 	Reinstatement 	 	 	16	 
	Section 10.15.
	 	Advice of Counsel 	 	 	16	 
	Section 10.16.
	 	No Strict Construction 	 	 	16	 
	Section 10.17.
	 	Conflict of Terms 	 	 	16	 
	Section 10.18.
	 	Further Execution 	 	 	16	 
	Section 10.19.
	 	Expenses 	 	 	16	 
	Section 10.20.
	 	No Implied Relationship 	 	 	17	 
	Section 10.21.
	 	No Third Party Beneficiaries 	 	 	17	 
	Section 10.22.
	 	Limitation of Scope of Representations and Warranties and Other Disclosures 	 	 	17	 






ii 









 






SECOND AMENDED AND RESTATED

HSBC REFUND ANTICIPATION LOAN

PARTICIPATION AGREEMENT




     This Second Amended and Restated HSBC Refund Anticipation Loan Participation Agreement (this
“Second A&R Participation Agreement”), dated as of January 12, 2010, is made by and among
the following parties:


Block Financial LLC, a Delaware limited liability company (“BFC”);



HSBC Bank USA, National Association, a national banking association (“HSBC NA”);



HSBC Trust Company (Delaware), National Association (“HSBC Trust”); and



HSBC Taxpayer Financial Services Inc., a Delaware corporation (“HSBC TFS”).




RECITALS



     A. HSBC NA and HSBC Trust offer banking products and services, including HSBC RALs offered
through Block Offices.



     B. HSBC TFS is the servicer for HSBC NA and HSBC Trust with respect to HSBC RALs..



     C. BFC offers financial products and services to individuals and business entities, and
purchases loans and participation interests in loans originated by third party lenders.



     D. HSBC NA, HTMAC, HSBC TFS and certain of their Affiliates and certain Affiliates of BFC
entered into the HSBC Retail Settlement Products Distribution Agreement, dated as of September 23,
2005 (the “Original Retail Distribution Agreement”), which was subsequently amended by the
Joinder and First Amendment to Program Contracts, dated as of November 10, 2006 (the “First
Amendment”), pursuant to which, inter alia, HSBC Trust was added and HTMAC was removed to
reflect the replacement of HTMAC by HSBC TFS as a party to the Program Contracts, and which was
further amended by the Second Amendment to Program Contracts, dated as of November 13, 2006 (the
“Second Amendment”), pursuant to which, inter alia, IMAs were added as a type of Settlement
Product offered to Clients, and which was further amended by the Third Amendment to Program
Contracts, dated December 5, 2008 (the “Third Amendment”) (the Original Retail Distribution
Agreement, as amended by the First Amendment, the Second Amendment, and the Third Amendment, the
“Retail Distribution Agreement”).



     E. HSBC NA, HTMAC, HSBC TFS and BFC entered into the HSBC Settlement Products Servicing
Agreement, dated as of September 23, 2005 (the “Original Servicing Agreement”), to set
forth the terms and conditions pursuant to which HSBC TFS would service, administer and collect
HSBC Settlement Products originated by HSBC NA, which was subsequently amended by the First
Amendment, pursuant to which, inter alia, HSBC Trust was added as a party thereto, HTMAC was
removed as a party thereto, and HSBC TFS replaced HTMAC as a party thereto, and which was further
amended and restated pursuant to the First



 









 




Amended and Restated HSBC Settlement Products Servicing Agreement, dated November 13, 2006
(the “First A&R Servicing Agreement”), to provide for, inter alia, the servicing,
administration and collection of IMAs, and which was futher amended by the Second Amendment and the
Third Amendment (the Original Servicing Agreement, as amended by the First Amendment, Second
Amendment, Third Amendment, and the First A&R Servicing Agreement, the “Servicing
Agreement”).




     F. HSBC NA, HTMAC, HSBC TFS and BFC entered into the HSBC Refund Anticipation Loan
Participation Agreement, dated September 23, 2005 (the “Original Participation Agreement”),
to set forth the terms and conditions of HTMAC’s sales to BFC, and BFC’s purchases from HTMAC, of
Participation Interests in certain HSBC RALs originated by HSBC NA, which was amended by the First
Amendment, pursuant to which, inter alia, HSBC Trust was added, HTMAC was removed and HSBC TFS
replaced HTMAC as a party thereto, and which was further amended and restated by the First Amended
and Restated HSBC Refund Anticipation Loan and IMA Participation Agreement, dated as of November
13, 2006 (the “First A&R Participation Agreement”), and which was further amended by the Second
Amendment and the Third Amendment.



     G. HSBC NA, HSBC Trust, HSBC TFS and BFC now desire to enter into this Second A&R
Participation Agreement to amend and restate the Original Participation Agreement, as amended by
the First Amendment, Second Amendment, Third Amendment, and the First A&R Participation Agreement,
(the Original Participation Agreement, as amended by the First Amendment, Second Amendment, Third
Amendment, the First A&R Participation Agreement, and this Second A&R Participation Agreement, the
“Participation Agreement”).



AGREEMENT




     ACCORDINGLY, the parties to this Second A&R Participation Agreement hereby agree as follows:



ARTICLE I

DEFINITIONS



     Section 1.1. Definitions. For all purposes of this Second A&R Participation
Agreement, except as otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in
the Appendix of Defined Terms and Rules of Construction attached to the Original Retail
Distribution Agreement as Appendix A, as amended pursuant to the First Amendment, and as further
amended pursuant to the Second Amendment (as amended, the “Appendix of Defined Terms and Rules
of Construction”), which is hereby incorporated by reference herein. All other capitalized
terms used herein shall have the meanings specified herein. In the event that any definition
specified in this Second A&R Participation Agreement for any capitalized term is inconsistent with
the definition specified for such term in the Appendix of Defined Terms and Rules of Construction,
the definition in the Appendix of Defined Terms and Rules of Construction shall govern.



2









 






     Section 1.2. Rules of Construction. For all purposes of this Second A&R Participation
Agreement, unless the context otherwise requires, the rules of construction set forth in the
Appendix of Defined Terms and Rules of Construction shall be applicable to this Second A&R
Participation Agreement.



     Section 1.3. Corporate Reorganizations.



          (a) The Block Companies may assign their rights and obligations under this Participation
Agreement to one or more Subsidiaries of H&R Block without the consent of the HSBC Companies if (i)
such assignment is desirable in connection with a reorganization of the business operations of H&R
Block’s Subsidiaries, (ii) such contemplated assignment will not materially adversely affect any
right or obligation of any HSBC Company under this Participation Agreement, and (iii) the
contemplated assignee (A) is a wholly owned (direct or indirect) Subsidiary of H&R Block and (B)
has the operational and financial capacity to meet all obligations of the assigning Block Company
under this Participation Agreement contemplated to be assigned to it (a “Permitted Block
Assignment”). The assigning Block Companies shall provide each of the HSBC Companies at least
sixty (60) days prior written notice of any contemplated Permitted Block Assignment. The parties
hereto agree to amend this Participation Agreement to the extent necessary to reflect such
Permitted Block Assignment.




          (b) The HSBC Companies may assign their rights and obligations under this Participation
Agreement to one or more Subsidiaries of HSBC North American Holdings, Inc. without the consent of
the Block Companies if (i) such assignment is desirable in connection with a reorganization of the
business operations of HSBC North American Holdings, Inc.’s Subsidiaries, (ii) such contemplated
assignment will not materially adversely affect any right or obligation of any Block Company under
this Participation Agreement, and (iii) the contemplated assignee (A) is a wholly owned (direct or
indirect) Subsidiary of HSBC North American Holdings, Inc., (B) only with respect to any assignment
by HSBC NA or HSBC Trust under this Section 1.3(b), is a national bank or federal savings
association and (C) has the operational and financial capacity to meet all obligations of the
assigning HSBC Company under this Participation Agreement contemplated to be assigned to it (a
“Permitted HSBC Assignment”). The assigning HSBC Companies shall provide each of the Block
Companies at least sixty (60) days prior written notice of any contemplated Permitted HSBC
Assignment. The parties hereto agree to amend this Participation Agreement to the extent necessary
to reflect such Permitted HSBC Assignment.




     Section 1.4. Funding for Purchases of Participation Interests in HSBC RALs.



          (a) HSBC TFS shall use its best efforts to obtain board of directors’ and all other required
approvals of one of its Affiliates, or of a third party lender, on or before July 1, 2006, to
furnish a commitment to BFC for funding of the purchase of Participation Interests in HSBC RALs
pursuant to this Participation Agreement; provided, that BFC timely furnishes such
information as is reasonably requested by such lender, such funding to be provided to BFC at an
interest rate of [***]. BFC shall provide a preliminary written notice to HSBC TFS no later than September 1st of the year
preceding each Tax Period during the Term requesting funding for the purchase of Participation
Interests during the next Tax Period, which preliminary request shall be confirmed






3









 







by BFC pursuant to a final written notice to HSBC TFS to be delivered no later than October
1st of such year preceding such Tax Period.




          (b) Each Affiliate of HSBC TFS or third party lender, as applicable, and BFC shall pay their
own legal fees and expenses to document the funding arrangements described in this Section 1.4.




ARTICLE II

REPRESENTATIONS AND WARRANTIES OF HSBC NA, HSBC TRUST AND HSBC TFS




     Section 2.1. Representations Incorporated by Reference. HSBC NA, HSBC Trust and HSBC
TFS each represent and warrant, with respect to itself only, to BFC that each representation and
warranty made by it in Article IV of the Retail Distribution Agreement is true and correct, each
and all of which are made as of the date hereof and (except the representations and warranties in
Section 4.6 of the Retail Distribution Agreement) as of each day during the term of this
Participation Agreement.



     Section 2.2. [Intentionally Deleted]



     Section 2.3. Representations and Warranties of HSBC NA and HSBC Trust Relating to
Participated HSBC RALs. HSBC NA and HSBC Trust hereby represent and warrant to BFC, as of each
Closing Date:



          (a) Eligible RALs. Each Participated HSBC RAL is an Eligible RAL.




          (b) Sale and Ownership; Title. Each conveyance of a Participation Interest by HSBC NA
and HSBC Trust to BFC on such Closing Date constitutes either (i) a valid sale, transfer,
assignment, set over and conveyance to BFC of all right, title and interest of HSBC NA and HSBC
Trust in and to such Participation Interest, free and clear of any Lien of any Person claiming
through or under HSBC NA, HSBC Trust or any of their Affiliates, or (ii) if it is ultimately
determined by a court of competent jurisdiction that a sale of a Participation Interest from HSBC
NA or HSBC Trust to BFC did not occur, then such conveyance constitutes a grant of a security
interest (as defined in the UCC as in effect in the applicable state) by HSBC NA and HSBC Trust to
BFC in each Participation Interest purportedly conveyed and this Participation Agreement
constitutes a security agreement with respect thereto. On each Closing Date, immediately prior to
any such sale of (or grant of a security interest in) a Participation Interest, HSBC NA and HSBC
Trust will be the sole legal and beneficial owner of, and will have marketable title to, the
Participation Interest, free and clear of any Lien (other than the interests of BFC contemplated by
this Participation Agreement). Neither HSBC NA nor HSBC Trust nor any Person claiming through or
under HSBC NA or HSBC Trust or any of their Affiliates shall have any claim to or interest in such
Participation Interest, except for any interest of HSBC NA or HSBC Trust therein as a “debtor”
(specifically, as seller of payment intangibles) for purposes of Article 9 of the UCC.







4









 








ARTICLE III

REPRESENTATIONS AND WARRANTIES OF BFC




     Section 3.1. Representations Incorporated by Reference. BFC hereby represents and
warrants to HSBC NA, HSBC Trust, and HSBC TFS that each representation and warranty made by BFC in
Article III of the Retail Distribution Agreement is true and correct, each and all of which are
made as of the date hereof and (except the representations and warranties in Section 3.6 of the
Retail Distribution Agreement) as of each day during the term of this Participation Agreement.



ARTICLE IV

PURCHASE AND SALE OF PARTICIPATION INTERESTS



     Section 4.1. Purchase and Sale of Participation Interests in HSBC RALs.



          (a) Purchase and Sale of Participation Interests. Except as otherwise provided
herein, HSBC NA and HSBC Trust shall sell to BFC, and BFC shall purchase from HSBC NA and HSBC
Trust, a Participation Interest in each HSBC RAL originated pursuant to any Distribution Agreement.
Each such Participation Interest shall be purchased by BFC on the first Business Day following the
Business Day on which the Disbursement Check for such HSBC RAL has been presented to HSBC NA or
HSBC Trust, as the case may be, for payment or Electronic Disbursement for such HSBC RAL, has been
made by HSBC NA or HSBC Trust, as the case may be. HSBC NA and HSBC Trust shall convey each
Participation Interest to BFC upon BFC’s payment to HSBC NA and HSBC Trust of the Purchase Price
with respect to each such Participation Interest as set forth in Section 4.3. If and to the extent
that any conveyance of a Participation Interest is not deemed a sale of a Participation Interest,
(i) HSBC NA and HSBC Trust hereby grants to BFC a security interest in each Participation Interest
that was purportedly conveyed, (ii) this Participation Agreement shall constitute a security
agreement with respect to such Participation Interest under applicable Law and (iii) HSBC NA and
HSBC Trust authorize the filing of such financing and continuation statements with respect to
Participation Interests hereafter created or arising. Except for the representations and
warranties expressly made by HSBC NA and HSBC Trust in this Participation Agreement, Participation
Interests (and the acquisition thereof by BFC) shall be without recourse to HSBC NA and HSBC Trust.




          (b) Applicable Percentage. The Applicable Percentage for each Calculation Period
during the term of this Participation Agreement shall be 49.999999%; provided,
however, that (i) BFC may elect to reduce the Applicable Percentage to zero (0) for a
particular Calculation Period, by giving notice of BFC’s election to HSBC NA and HSBC Trust on or
before September 1 immediately prior to such Calculation Period; (ii) BFC may elect to reduce the
Applicable Percentage to zero (0) for any applicable Calculation Period (or any remaining portion
thereof) from and after January 30 of such Calculation Period, by giving notice of BFC’s election
to HSBC NA and HSBC Trust on or before January 20 of such Calculation Period for which the election
is applicable; and (iii) BFC may elect to reduce the Applicable Percentage to zero (0) at any time
if BFC has exceeded its internal funding limit, by giving notice thereof as soon as practicable,
but no later than 8:30 a.m., New York time, on the date of the reduction of the Applicable
Percentage to zero (0), it being understood that the reduction of the Applicable






5









 







Percentage to zero (0) shall only be in effect during the periods of time BFC has exceeded its
internal funding limit.




     Section 4.2. Purchase Price. The Purchase Price for each Participation Interest on
each Closing Date shall be equal to the product of (a) the Applicable Percentage on such Closing
Date, multiplied by (b) the Principal Amount minus the RAL Fees and the Refund Account Fees
of the HSBC RAL in which a Participation Interest is being purchased.



     Section 4.3. Payment. Each Business Day, not later than 8:30 a.m., New York time,
HSBC TFS shall provide to BFC a list of the number and amount of Disbursement Checks presented to
HSBC NA or HSBC Trust for payment and Electronic Disbursements made by HSBC NA and HSBC Trust for
HSBC RALs on the previous Business Day (excluding those Disbursement Checks and Electronic
Disbursements related to any HSBC RALs excluded pursuant to Section 4.4), together with the
aggregate Purchase Price for the Participation Interests corresponding to such HSBC RALs. BFC
shall pay to HSBC NA and HSBC Trust the full amount of such Purchase Price not later than 4:30
p.m., New York time, on the Business Day on which such notice is received. Such payment shall be
made via wire transfer to such domestic accounts designated by HSBC NA and HSBC Trust by notice to
BFC from time to time, in United States dollars.



     Section 4.4. Right to Exclude Certain HSBC RALs.



          (a) BFC may in its reasonable discretion elect not to purchase Participation Interests in any
group or groups of HSBC RALs, for any remaining portion of a Calculation Period and/or for any
future Calculation Periods, for any of the following reasons: (i) to comply with applicable Laws on
advice of BFC’s counsel; (ii) to comply with a court order or a cease and desist order; (iii) to
comply with an agreement with any federal or state regulatory authority; or (iv) any combination of
the foregoing reasons.




          (b) HSBC NA or HSBC Trust may in its reasonable discretion elect not to sell Participation
Interests in any group or groups of HSBC RALs, for any remaining portion of a Calculation Period
and/or for any future Calculation Periods, for any of the following reasons: (i) to comply with
applicable Laws; (ii) to comply with a court order or a cease and desist order; (iii) to comply
with an agreement with any federal or state regulatory authority; or (iv) any combination of the
foregoing reasons. Upon any such election, the parties shall negotiate in good faith to promptly
amend this Participation Agreement to the extent necessary to achieve economic results for BFC that
are comparable to the economic results that BFC would have achieved had such election not been
made.




          (c) Either BFC, on the one hand, or HSBC NA and HSBC Trust, on the other, shall make such
elections to exclude certain RALs by giving notice of such election to the other party, which
notice shall specify the group or groups of HSBC RALs that the notifying party elects to exclude,
the reason for such exclusion and the remaining portion of a Calculation Period or future
Calculation Periods with respect to which such RALs shall be excluded, which election shall become
effective ten (10) days after the giving of such notice.







6









 








     Section 4.5. Certain Rights of HSBC NA and HSBC Trust. The following obligations of
BFC under this Section 4.5 shall survive any termination of the obligations of HSBC NA and HSBC
Trust to sell, and the obligations of BFC to purchase, Participation Interests in HSBC RALs
pursuant to Section 4.1 and all other events and conditions whatever:



          (a) Reimbursement. If, at any time, HSBC NA or HSBC Trust is required to return or
pay over any payment received by, or application of funds made by, HSBC NA or HSBC Trust on account
of any Participated HSBC RAL, BFC, promptly upon notice from HSBC NA or HSBC Trust, shall pay to
HSBC NA or HSBC Trust an amount equal to the Applicable Percentage of the amount (net of related
Defaulted RAL Collection Fees (as that term is defined in the Servicing Agreement), as the case may
be, retained by the Servicer pursuant to the Servicing Agreement) so returned or paid over,
together with the Applicable Percentage of any interest or penalties payable with respect to such
Participated HSBC RAL, as the case may be.




          (b) Payover. If BFC receives any payment for any HSBC RAL, BFC shall deliver such
payment to the Servicer for deposit into the applicable Deposit Account as provided in Section 3.2
of the Servicing Agreement.




     Section 4.6. Information to be Furnished by HSBC TFS to BFC. HSBC TFS shall provide
to BFC, as of January 31, April 30, July 31, and October 31 of each year during the Term, a listing
by Calculation Period of the Principal Amounts and other amounts owing on all unpaid Participated
HSBC RALs, unique customer identifiers related thereto, type of Settlement Product including, if
applicable, type of HSBC RAL, EIC indicator and any other information related thereto mutually
agreeable to the parties, such information to be provided within five (5) Business Days after such
dates. BFC shall not use such information for any purpose other than asset verification and trend
analysis and agrees to hold such information in confidence and not to disclose such information to
any party other than its accountants and its legal counsel, subject to the terms and conditions of
Section 16.1 of the Retail Distribution Agreement.



     Section 4.7. True Sale and Nonconsolidation Opinions. Upon BFC’s request, HSBC NA and
HSBC Trust agree to use commercially reasonable efforts to obtain for BFC (a) a “true sale” opinion
of counsel to HSBC NA and HSBC Trust with respect to the sale by HSBC NA and HSBC Trust and the
purchase by BFC or its Affiliates of the Participation Interests in the HSBC RALs, and (b) a
“nonconsolidation” opinion of counsel to HSBC NA and HSBC Trust with respect to HSBC NA and HSBC
Trust and any other Affiliate of HSBC NA and HSBC Trust that owns the Participation Interests prior
to such sale and purchase, in both cases in form and substance typically employed in off-balance
sheet financing or sale transactions generally; provided, however, that in
connection with such efforts (A) HSBC NA and HSBC Trust shall not be obligated to restructure the
terms of any Program Contract in any way that will have a Material Adverse Effect upon the economic
interests of HSBC NA or HSBC Trust or their Affiliates, and (B) the failure of HSBC NA and HSBC
Trust to obtain such opinions (after making commercially reasonable efforts to do so) shall not
constitute a breach of any of HSBC NA’s or HSBC Trust’s obligations under this Participation
Agreement and shall in no event give rise to any liability on the part of HSBC NA, HSBC Trust or
any of their Affiliates. With respect to such opinions for a particular Calculation Period, (i)
BFC shall request such opinions as soon as reasonably possible during the immediately preceding
calendar year, and in any event, no later



7









 




than September 1st of such preceding calendar year absent major structural changes to the
terms of any Program Contract made or proposed by HSBC NA, HSBC Trust or their Affiliates, (ii) BFC
shall identify the entity, if any, with whom it intends to effectuate any financing or sale
transaction, and the proposed structure of such financing or sale transaction, as soon as
reasonably possible during the immediately preceding calendar year, and in any event, no later than
September 1st of such preceding calendar year absent major structural changes to the terms of any
Program Contract made or proposed by HSBC NA, HSBC Trust or their Affiliates, and (iii) HSBC NA and
HSBC Trust and their Affiliates and BFC shall cooperate and use commercially reasonable efforts to
complete all changes to the terms of all Program Contracts, if any, and the legal documents and
agreements reflecting such changes, if any, as soon as reasonably possible during the immediately
preceding calendar year, and in any event no later than October 15th of such preceding calendar
year absent major structural changes to any such agreement made or proposed by BFC or HSBC NA, HSBC
Trust or their Affiliates. BFC shall be solely responsible for all legal fees of the parties
associated with any opinion undertaken pursuant to this Section 4.7. In connection with any
request by BFC for an opinion pursuant to this Section 4.7 for a particular Calculation Period,
HSBC NA and HSBC Trust shall, upon reasonable request by BFC, provide to BFC copies of all material
operative agreements executed by HSBC NA, HSBC Trust or thier Affiliates relating to the
origination of HSBC RALs by the Originator, or the sale and servicing of any of HSBC NA’s or HSBC
Trust’s retained interests in the HSBC RALs, for such Calculation Period, as well as all material
operative agreements executed by HSBC NA or HSBC Trust relating to the financing or sale of such
retained interests for such Calculation Period, in each case only to the extent (y) such agreements
are reasonably necessary to be reviewed by BFC in connection with the opinions contemplated by this
Section 4.7, and (z) the terms of such agreements permit disclosure to third parties;
provided, however, that HSBC NA and HSBC Trust shall not add any provision to any
such agreement that unreasonably prohibits disclosure to BFC, its accountants or counsel engaged in
connection with the issuance of any opinion pursuant to this Section 4.7, or the entity, if any,
engaged by BFC to effectuate any financing or sale transaction. BFC hereby agrees to hold all such
agreements in strict confidence and not to provide any copies or disclose any terms therein to any
party other than its accountants, its counsel and the entity, if any, with whom BFC proposes to
effectuate any financing or sale transaction, subject to the terms and provisions of Section 16.1
of the Retail Distribution Agreement (provided that references therein to any Program Contract
shall be deemed to be references to such material operative agreements for purposes of this
sentence); provided, however, that, notwithstanding any other provision in this
Participation Agreement, if such entity or an Affiliate of such entity is deemed by HSBC NA or HSBC
Trust to be a competitor of HSBC NA, HSBC Trust or HSBC TFS in the making or servicing of RALs,
then the disclosure of such agreements to such entity may be restricted by HSBC NA or HSBC Trust to
the extent deemed necessary by HSBC NA or HSBC Trust, in its sole discretion, to protect its
business interests and trade secrets.




     Section 4.8. Right of BFC to Sell Participation Rights. If BFC has elected not to
purchase a Participation Interest as to any Calculation Period, BFC shall have the right to sell,
assign and transfer its rights to purchase Participation Interests as to such Calculation Period
without the consent of HSBC NA or HSBC Trust if (a) such contemplated sale and assignment will not
materially adversely affect any right or obligation of HSBC NA or HSBC Trust under this
Participation Agreement, and (b) the contemplated purchasers and assignees (i) have the operational
and financial capacity to meet all obligations of BFC under this Participation



8









 




Agreement contemplated to be assigned to them and (ii) are not, and will not become upon
effectiveness of such contemplated purchase and assignment, subject to any Law or consent that
could reasonable be deemed to require any Governmental Approval or third-party consent, that has
not been obtained, to carry out any of the obligations contemplated to be purchased and assigned to
them. BFC shall provide HSBC NA and HSBC Trust at least five (5) Business Days prior notice of any
contemplated sale and assignment, which notice shall specify the portion of BFC’s rights to
purchase Participation Interests which it proposes to sell, the Person or Persons to whom it
proposes to sell such rights, the price and the terms and conditions of the proposed sale of such
rights contained in any bona fide offer to purchase such rights (the “Offer”). Within five
(5) Business Days after such notice, HSBC NA, HSBC Trust or their Affiliates may elect, upon notice
to BFC, to purchase from BFC the rights to purchase Participation Interests proposed to be sold, at
the price and on the terms and conditions set forth in the Offer. If HSBC NA, HSBC Trust or their
Affiliates do not so elect to purchase BFC’s rights, BFC shall have the right to sell such rights
to the Person or Persons, at the price and on the terms and conditions specified in the Offer, for
a period of forty (40) days after BFC’s notice of the Offer to HSBC NA and HSBC Trust.




ARTICLE V

SERVICING OF PARTICIPATED HSBC RALS




     Section 5.1. Servicing Agreement. HSBC NA, HSBC Trust, BFC and HSBC TFS (on its own
behalf and as Servicer) are parties to the Servicing Agreement . Pursuant to the terms of the
Servicing Agreement, the Servicer shall perform all servicing acts with respect to Participated
HSBC RALs including, but not limited to, performing payment processing, record keeping, collecting
and monitoring all payments made with respect to Participated HSBC RALs, other routine customer
service functions and distribution of funds.



ARTICLE VI

REPURCHASE OF PARTICIPATION INTERESTS



     Section 6.1. Repurchase Events.



          (a) If HSBC NA and HSBC Trust shall breach any of their representations and warranties made in
Section 2.3 and the HSBC RAL underlying such Participation Interest was not fully collected by
December 31 immediately following the Tax Period in which such HSBC RAL was originated, then BFC
shall have the repurchase rights set forth in Section 6.2.




          (b) If a Participated HSBC RAL is not an Eligible RAL as a result of the failure to satisfy
the conditions set forth in the definition of Eligible RAL (contingent on that failure not being
caused by any action or inaction by BFC to perform its explicit obligations under this
Participation Agreement), and such Participated HSBC RAL was not fully collected by December 31
immediately following the Tax Period in which such HSBC RAL was originated, then BFC shall have the
repurchase rights set forth in Section 6.2.




     Section 6.2. Repurchase Remedy. In the event of a breach as set forth in Section 6.1,
then, upon the earlier to occur of the discovery by BFC of such breach or event, or receipt by BFC
of notice from HSBC NA or HSBC Trust of such breach or event, BFC may by notice then



9









 




given in writing to HSBC NA and HSBC Trust direct HSBC NA or HSBC Trust to repurchase the
Participation Interest in each such Participated HSBC RAL within thirty (30) days of such notice
(or within such longer period as may be specified in such notice but in no event later than one
hundred twenty (120) days) on a date specified by BFC occurring within such applicable period, on
the terms and conditions set forth in Section 6.3.




     Section 6.3. Procedures for Repurchase. When the provisions of Section 6.2 require
repurchase of a Participation Interest, HSBC NA or HSBC Trust shall purchase such Participation
Interest by remitting to BFC an amount equal to the Repurchase Value of the Participation Interest
as of the date of such repurchase. Such remittance shall be made to BFC at such account designated
by BFC by notice to HSBC NA or HSBC Trust, in United States dollars and in immediately available
funds, without setoff, withholding, counterclaim or other deduction of any nature whatsoever. Upon
such remittance, BFC shall automatically and without further action be deemed to transfer, assign,
set over and otherwise convey to HSBC NA or HSBC Trust, without recourse, representation or
warranty (except for the warranty that since the date of conveyance by HSBC NA or HSBC Trust to
BFC, BFC has not sold, transferred or encumbered any such Participation Interest), all right, title
and interest of BFC in and to such Participation Interest. BFC shall execute such documents and
instruments of transfer and assignment and take other actions as shall reasonably be requested by
HSBC NA or HSBC Trust to evidence the conveyance of such Participation Interest, all monies due or
to become due with respect thereto and all proceeds thereof pursuant to this Section 6.3. The
obligation of HSBC NA or HSBC Trust to repurchase Participation Interests in HSBC RALs in
accordance with this Section 6.3 shall constitute the sole remedy respecting the occurrence of the
events specified in Section 6.1.



     Section 6.4. Impairment. For the purposes of this Article VI, no proceeds of a HSBC
RAL shall be deemed to be impaired hereunder solely because such proceeds are held by HSBC NA or
HSBC Trust for more than the applicable period under Section 9-315(d) of the UCC as in effect in
the State of Delaware.



ARTICLE VII

TERM AND TERMINATION




     Section 7.1. Term. The “Initial Term” of this Second A&R Participation
Agreement shall commence as of January 12, 2010 and shall expire on June 30, 2011. In the event
the Block Companies elect to renew the Retail Distribution Agreement for not more than two (2)
successive one year periods (each such one year period is referred to as a “Renewal Term”),
this Participation Agreement shall be automatically renewed for each Renewal Term so elected by the
Block Companies, unless BFC elects not to renew this Participation Agreement for a Renewal Term by
providing written notice to HSBC NA, HSBC Trust and HSBC TFS not later than ninety (90) days prior
to the expiration of the Initial Term or, if the Participation Agreement was renewed, the Renewal
Term. The Initial Term and any Renewal Term(s) are collectively referred to as the “Term”.
Notwithstanding the provisions of this Section 7.1, this Participation Agreement may be terminated
prior to the expiration of the Initial Term or any Renewal Term in accordance with the provisions
of Section 7.2.



10









 





     Section 7.2. Termination.



          (a) This Participation Agreement may be terminated as follows:




               (1) upon the mutual written agreement of all of the parties hereto;



               (2) upon the expiration or termination of the Retail Distribution Agreement;



               (3) by BFC in accordance with Section 18.2(b) of the Retail Distribution Agreement; or



               (4) by HSBC NA, HSBC Trust or HSBC TFS in accordance with Section 19.2(b) of the Retail
Distribution Agreement.



          (b) BFC may terminate this Participation Agreement pursuant to Section 8.2(b).




          (c) HSBC NA, HSBC Trust, or HSBC TFS may terminate this Participation Agreement pursuant to
Section 9.2(b).




     Section 7.3. Effect of Termination. Termination pursuant to Section 7.2 shall not
affect the rights or obligations of the parties to this Participation Agreement or any other
Program Contract arising prior to the termination of this Participation Agreement, including the
obligations of the Servicer under the Servicing Agreement.



ARTICLE VIII

DEFAULT OF HSBC NA, HSBC TRUST AND HSBC TFS AND REMEDIES OF BFC




     Section 8.1. HSBC NA, HSBC Trust, and HSBC TFS Events of Default. The occurrence of
any one or more of the following events for any reason whatsoever (whether voluntary or
involuntary, by operation of Law or otherwise) shall constitute an event of default with respect to
HSBC TFS. The occurrence of any one or more of the following events with respect to HSBC NA or HSBC
Trust, as applicable, for any reason whatsoever (whether voluntary or involuntary, by operation of
Law or otherwise) shall constitute an event of default with respect to HSBC NA or HSBC Trust, as
applicable.



          (a) HSBC NA, HSBC Trust or HSBC TFS, as applicable, fails to observe or perform any covenant
applicable to it contained in this Participation Agreement (or, in the event such covenant does not
contain a Material Adverse Effect qualification, so long as such failure could reasonably be
expected to have a Material Adverse Effect), following receipt of notice of such failure and the
same shall remain unremedied for five (5) days or more following receipt of such notice;




          (b) any representation, warranty, certification or statement made by HSBC NA, HSBC Trust or
HSBC TFS, as applicable, in this Participation Agreement is incorrect in any respect (or, in the
event such representation, warranty, certification or statement made in this Participation
Agreement does not contain a Material Adverse Effect qualification, so long as






11









 







such incorrect representation, warranty, certification or statement could reasonably be
expected to have a Material Adverse Effect); or




          (c) a HSBC Event of Default occurs under the Retail Distribution Agreement.




     Section 8.2. Remedies. If any event of default by HSBC NA, HSBC Trust or HSBC TFS
under Section 8.1 has occurred and is continuing and adversely affects BFC, the following actions
may be taken:



          (a) Termination. BFC may terminate this Participation Agreement. If BFC terminates,
this Participation Agreement under this Section 8.2(a), BFC shall promptly provide written notice
to HSBC NA and HSBC Trust and HSBC TFS. The effective date of termination shall be the date such
corresponding notice was received by HSBC NA, HSBC Trust and HSBC TFS.




          (b) Other Rights and Remedies. BFC may exercise any rights and remedies provided to
it under this Participation Agreement or at law or equity.




     Section 8.3. Default Rate. If any event of default of HSBC NA, HSBC Trust or HSBC TFS
has occurred and is continuing, and all or any portion of the Obligations hereunder of HSBC NA,
HSBC Trust or HSBC TFS are outstanding, such Obligations or any portion thereof shall bear interest
at the Default Rate until such Obligations or such portion thereof plus all interest thereon are
paid in full.



     Section 8.4. Waiver. BFC may waive, in writing, any event of default of HSBC NA, HSBC
Trust or HSBC TFS, as applicable. Upon any such waiver of a past event of default of HSBC NA, HSBC
Trust or HSBC TFS, as applicable, such event of default shall cease to exist; provided,
however, that such waiver shall not excuse or discharge any Obligations relating to or
liabilities arising from such event of default. No such waiver shall extend to any subsequent or
other event of default of HSBC NA, HSBC Trust or HSBC TFS, as applicable, or impair any right
consequent thereon except to the extent expressly so waived.



ARTICLE IX

DEFAULT OF BFC AND REMEDIES OF HSBC NA, HSBC TRUST, AND HSBC TFS




     Section 9.1. BFC Events of Default. The occurrence of any one or more of the
following events for any reason whatsoever (whether voluntary or involuntary, by operation of Law
or otherwise) shall constitute an event of default with respect to BFC:



          (a) BFC fails to observe or perform any covenant applicable to it contained in this
Participation Agreement (or, in the event such covenant does not contain a Material Adverse Effect
qualification, so long as such failure could reasonably be expected to have a Material Adverse
Effect), and the same shall remain unremedied for five (5) days or more following receipt of
written notice of such failure;




          (b) any representation, warranty, certification or statement made by BFC in or pursuant to
this Participation Agreement is incorrect in any respect (or, in the event such representation,
warranty, certificate or statement made in this Participation Agreement does not






12









 







contain a Material Adverse Effect qualification, so long as such incorrect representation,
warranty, certification or statement could reasonably be expected to have a Material Adverse
Effect); or




          (c) a Block Event of Default occurs under the Retail Distribution Agreement.




     Section 9.2. Remedies. If any event of default by BFC under Section 9.1 has occurred
and is continuing and adversely affects HSBC NA, HSBC Trust or HSBC TFS, as applicable, the
following actions may be taken:



          (a) Termination. HSBC NA, HSBC Trust or HSBC TFS, as applicable, may terminate this
Participation Agreement. If any of HSBC NA, HSBC Trust or HSBC TFS, as applicable, terminates this
Participation Agreement under this Section 9.2(a), such party shall promptly provide written notice
to BFC. The effective date of termination shall be the date such corresponding notice was received
by BFC.




          (b) Other Rights and Remedies. HSBC NA, HSBC Trust or HSBC TFS, as applicable, may
exercise any rights and remedies provided to it under this Participation Agreement or at law or
equity.




     Section 9.3. Default Rate. If any event of default of BFC has occurred and is
continuing, and all or any portion of the Obligations hereunder of BFC are outstanding, such
Obligations or any portion thereof shall bear interest at the Default Rate until such Obligations
or such portion thereof plus all interest thereon are paid in full.



     Section 9.4. Waiver. HSBC NA, HSBC Trust or HSBC TFS, as applicable, may waive, in
writing, any event of default of BFC. Upon any such waiver of a past event of default of BFC, such
event of default of BFC shall cease to exist; provided, however, that such waiver
shall not excuse or discharge any Obligations relating to or liabilities arising from such event of
default of BFC. No such waiver shall extend to any subsequent or other event of default of BFC or
impair any right consequent thereon except to the extent expressly so waived.



ARTICLE X

MISCELLANEOUS




     Section 10.1. Independent Evaluation. BFC expressly acknowledges that except as
provided in Article II and the other Program Contracts, HSBC NA, HSBC Trust and HSBC TFS have not
made any representation or warranty, express or implied, to BFC and no act by HSBC NA, HSBC Trust
or HSBC TFS heretofore or hereafter taken shall be deemed to constitute any representation or
warranty by HSBC NA, HSBC Trust or HSBC TFS to BFC; and (b) in connection with its entry into and
its performance of its obligations under this Participation Agreement, BFC has made and shall
continue to make its own independent investigation of the economic and credit risks associated with
the purchase of Participation Interests.



     Section 10.2. Survival.



          (a) The rights and obligations of the parties hereto under Sections 1.1, 1.2, 1.3, 1.4(b), 4.5
and 4.6, Article V and Article VI of this Participation Agreement, shall survive






13









 







the expiration or termination of this Participation Agreement until such time as no
obligations of such parties thereunder are due and owing.




          (b) The (i) representations and warranties of the parties hereto and (ii) the rights and
obligations of the parties hereto under Sections 8.2, 8.3, 9.2 and 9.3 and Article X of this
Participation Agreement shall survive the expiration or termination of this Participation Agreement
indefinitely.




     Section 10.3. No Waivers; Remedies Cumulative. No failure or delay by any party
hereto in exercising any right, power or privilege under this Participation Agreement shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies provided by law, by
other agreement or otherwise.



     Section 10.4. Notices. All notices, requests and other communications to any party
hereunder shall be provided in the manner set forth in Section 22.3 of the Retail Distribution
Agreement.



     Section 10.5. Severability. In case any provision of, or obligation under, this
Participation Agreement shall be invalid, illegal or unenforceable in any applicable jurisdiction,
the validity, legality and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be affected or impaired
thereby.



     Section 10.6. Amendments and Waivers. Any provision of this Participation Agreement
may be amended or waived only if such amendment or waiver is in writing and is signed by all of the
parties hereto.



     Section 10.7. Successors and Assigns. The provisions of this Participation Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, no such party may assign or otherwise
transfer any of its rights under this Participation Agreement without the prior written consent of
all parties signatory hereto except as provided in Sections 1.3, 4.8 or Article VI hereof; provided
further, BFC may assign, pledge and/or provide a security interest in its rights under this
Agreement to HSBC NA in order to secure financing for the purchase of Participation Interests
hereunder.



     Section 10.8. Headings. Headings and captions used in this Participation Agreement
(including all exhibits and schedules thereto) are included herein for convenience of reference
only and shall not constitute a part of this Participation Agreement for any other purpose or be
given any substantive effect.



     Section 10.9. Alternative Dispute Resolution. ANY DISPUTE BETWEEN OR AMONG THE
PARTIES HERETO ARISING OUT OF OR RELATING TO THIS PARTICIPATION AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREIN (EXCEPT JUDICIAL ACTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF) SHALL BE
RESOLVED AMONG THE PARTIES TO SUCH DISPUTE BY NEGOTIATION, MEDIATION AND ARBITRATION IN ACCORDANCE
WITH THE PROVISIONS OF



14









 




ARTICLE XXI OF THE RETAIL DISTRIBUTION AGREEMENT, WHICH ARE INCORPORATED HEREIN BY REFERENCE.




     Section 10.10. Governing Law; Submission To Jurisdiction. THIS PARTICIPATION
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
MISSOURI. WITHOUT LIMITING THE EFFECT OF SECTION 10.9 HEREOF AND ARTICLE XXI OF THE RETAIL
DISTRIBUTION AGREEMENT, EACH OF THE PARTIES HERETO HEREBY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE FEDERAL AND/OR STATE COURTS SITTING IN ST. LOUIS, MISSOURI FOR PURPOSES OF ALL LEGAL
PROCEEDINGS FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF PERMITTED BY SECTION 21.12 OF THE RETAIL
DISTRIBUTION AGREEMENT, (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, (C) IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN SUCH PROCEEDING
THE MANNER PROVIDED FOR NOTICES IN SECTION 10.4 AND (D) AGREES THAT NOTHING IN THIS PARTICIPATION
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS PARTICIPATION AGREEMENT TO SERVE PROCESS IN
ANY SUCH PROCEEDING IN ANY OTHER MANNER PERMITTED BY LAW.



     Section 10.11. Waiver of Jury Trial. WITHOUT LIMITING THE EFFECT OF SECTION 10.9,
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION
ARISING OUT OF OR RELATING TO THIS PARTICIPATION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 10.12. Counterparts. This Participation Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Participation Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties hereto.



     Section 10.13. Entire Agreement. This Participation Agreement and the other Program
Contracts, as amended through the date hereof, constitute the entire agreement and understanding
among the parties hereto, and supersede and extinguish any and all prior agreements and
understandings, oral or written relating to the operation of the Settlement Products Program on and
after the date hereof. For the avoidance of doubt, (i) this Participation Agreement and the other
Program Contracts, as amended through the date hereof, shall govern the operation of the Settlement
Products Program on and after the date hereof, (ii) the Original Participation Agreement, as
amended by the First Amendment, as further amended and restated by the First A&R Participation
Agreement, and further amended by the Second Amendment and the Third Amendment shall continue to
govern the participation interests sold between the date of the Original Participation Agreement
and the date of this Second A&R Participation Agreement, and (iii) nothing in this Participation
Agreement or the other Program Contracts shall affect the rights



15









 




and obligations of the parties to the Prior Program Agreements, whenever arising, under such
Prior Program Agreements, which remain valid and enforceable in accordance with their terms.




     Section 10.14. Reinstatement. This Participation Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or against any party hereto
for liquidation or reorganization, should any party hereto become insolvent or make an assignment
for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all
or any significant part of any party’s assets or properties, and shall continue to be effective or
to be reinstated, as the case may be, if at any time payment and performance of the obligations
hereunder, or any part thereof, is, pursuant to applicable Law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee of such obligations, whether as a “voidable
preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had
not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, the obligations hereunder shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.



     Section 10.15. Advice of Counsel. Each of the parties represents to each other party
hereto that it has discussed this Participation Agreement with its counsel.



     Section 10.16. No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Participation Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Participation Agreement shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this Participation
Agreement.



     Section 10.17. Conflict of Terms. Except as otherwise provided in this Participation
Agreement or any of the other Program Contracts by specific reference to the applicable provisions
of this Participation Agreement, if any provision contained in this Participation Agreement
conflicts with any provision in any of the other Program Contracts, other than the Indemnification
Agreement or the Retail Distribution Agreement, the provisions contained in this Participation
Agreement shall govern and control. If there is a conflict between this Participation Agreement
and the Retail Distribution Agreement (but not the Indemnification Agreement), then the Retail
Distribution Agreement shall control. If there is a conflict between this Participation Agreement
and the Indemnification Agreement, the Indemnification Agreement shall control.



     Section 10.18. Further Execution. Each party hereto shall execute any and all
documents as are necessary or desirable to consummate the transactions contemplated hereby.



     Section 10.19. Expenses. Except as otherwise provided herein or in any Program
Contract, each party hereto shall pay its own expenses, including the expenses of its own counsel
and its own accountants, in connection with the consummation of the transactions contemplated by
this Participation Agreement.



16









 





     Section 10.20. No Implied Relationship. Notwithstanding any provision herein to the
contrary:



          (a) This Participation Agreement shall not be construed to establish a partnership or joint
venture between the parties hereto.




          (b) All personnel employed or otherwise engaged by any party hereto to perform the obligations
and duties of such party hereunder shall not be deemed to be employees of any other party hereto.
In addition, the party employing or otherwise engaging such employees, shall at all times be
responsible for the compensation of, and payment of applicable state and federal income taxes with
respect to, any personnel employed by such party to perform any services hereunder.




     Section 10.21. No Third Party Beneficiaries. This Participation Agreement is for the
sole benefit of the parties hereto and their permitted successors and assigns and nothing in this
Participation Agreement, express or implied, is intended to or shall confer upon any other person
any legal or equitable right, benefit or remedy, of any nature whatsoever under or by reason of
this Participation Agreement.



     Section 10.22. Limitation of Scope of Representations and Warranties and Other
Disclosures. The representations, warranties and other disclosures set forth by each party
hereto are only made for the benefit of the parties hereto and the purpose of the transactions
contemplated hereby and are not intended for use by any person with respect to any acquisition or
disposition of any security of any party hereto.


[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




17









 





THIS PARTICIPATION AGREEMENT CONTAINS A BINDING 

ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.



     IN WITNESS WHEREOF, the parties hereto have caused this Second A&R Participation Agreement to
be executed by their respective duly authorized officers as of the date set forth above.



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION,

a national banking association

 	 
	 	By:  	/s/ Eesh K. Bansal
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HSBC TRUST COMPANY (DELAWARE), N.A.,

a national banking association

 	 
	 	By:  	/s/ Richard D. Leigh
 	 
	 	 	Name:  	Richard D. Leigh 	 
	 	 	Title:  	President 	 
	 
	 	HSBC TAXPAYER FINANCIAL SERVICES INC.,

a Delaware corporation

 	 
	 	By:  	/s/ John R. Butler
 	 
	 	 	Name:  	John R. Butler 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	BLOCK FINANCIAL LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Becky S. Shulman
 	 
	 	 	Name:  	Becky S. Shulman 	 
	 	 	Title:  	President and Chief Financial Officer 	 



18