Common use of True Sale and Nonconsolidation Opinions Clause in Contracts

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 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.

True Sale and Nonconsolidation Opinions. Upon BFC’s 's request, HSBC NA and HSBC Trust agree HTMAC agrees to use commercially reasonable efforts to obtain for BFC (a) a “"true sale” " opinion of counsel to HSBC NA and HSBC Trust HTMAC with respect to the sale by HSBC NA and HSBC Trust HTMAC 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 HTMAC with respect to HSBC NA and HSBC Trust HTMAC and any other Affiliate of HSBC NA and HSBC Trust HTMAC 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 HTMAC 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 HTMAC or HSBC Trust or their its Affiliates, and (B) the failure of HSBC NA and HSBC Trust HTMAC 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 HTMAC's obligations under this Participation Agreement and shall in no event give rise to any liability on the part of HSBC NA, HSBC Trust HTMAC or any of their its Affiliates. With respect to such opinions for a particular Calculation Tax Period, (i) BFC shall request such opinions 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 HTMAC or their its 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 HTMAC or their its Affiliates, and (iii) HSBC NA BFC, HTMAC and HSBC Trust and their its 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 HTMAC or their its 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 Tax Period, HSBC NA and HSBC Trust HTMAC shall, upon reasonable request by BFC, provide to BFC copies of all material operative agreements executed by HSBC NA, HSBC Trust HTMAC or thier its 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 HTMAC's retained interests in the HSBC RALs, for such Calculation Tax Period, as well as all material operative agreements executed by HSBC NA HTMAC or HSBC Trust its Affiliates relating to the financing or sale of such retained interests for such Calculation Tax 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 HTMAC 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 HTMAC to be a competitor of HSBC NA, HSBC Trust or HSBC TFS HTMAC 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 HTMAC to the extent deemed necessary by HSBC NA or HSBC TrustHTMAC, in its sole discretion, to protect its business interests and trade secrets.

True Sale and Nonconsolidation Opinions. Upon BFC’s request, HSBC NA and HSBC Trust agree TFS agrees to use commercially reasonable efforts to obtain for BFC (a) a “true sale” opinion of counsel to HSBC NA and HSBC Trust TFS with respect to the sale by HSBC NA and HSBC Trust TFS and the purchase by BFC or its Affiliates of the Participation Interests in the HSBC RALsRALs and HSBC IMAs, and (b) a “nonconsolidation” opinion of counsel to HSBC NA and HSBC Trust TFS with respect to HSBC NA and HSBC Trust TFS and any other Affiliate of HSBC NA and HSBC Trust TFS 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 TFS 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 TFS or HSBC Trust or their its Affiliates, and (B) the failure of HSBC NA and HSBC Trust TFS 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 TrustTFS’s obligations under this Participation Agreement and shall in no event give rise to any liability on the part of HSBC NA, HSBC Trust TFS or any of their its 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 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 TFS or their its 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 TFS or their its Affiliates, and (iii) BFC, HSBC NA TFS and HSBC Trust and their its 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 TFS or their its 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 TFS shall, upon reasonable request by BFC, provide to BFC copies of all material operative agreements executed by HSBC NA, HSBC Trust TFS or thier its Affiliates relating to the origination of HSBC RALs and HSBC IMAs by the Originator, or the sale and servicing of any of HSBC NA’s or HSBC TrustTFS’s retained interests in the HSBC RALsRALs and HSBC IMAs, for such Calculation Period, as well as all material operative agreements executed by HSBC NA TFS or HSBC Trust its Affiliates 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 TFS 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 TFS to be a competitor of HSBC NA, HSBC Trust or HSBC TFS in the making or servicing of RALsRALs or IMAs, then the disclosure of such agreements to such entity may be restricted by HSBC NA or HSBC Trust TFS to the extent deemed necessary by HSBC NA or HSBC TrustTFS, in its sole discretion, to protect its business interests and trade secrets.

True Sale and Nonconsolidation Opinions. Upon BFC’s request, HSBC NA and HSBC Trust agree TFS agrees to use all commercially reasonable reasonably efforts to obtain for BFC (ai) a “true sale” opinion of counsel to HSBC NA and HSBC Trust TFS with respect to the sale by HSBC NA and HSBC Trust TFS and the purchase by BFC or its Affiliates of the Participation Interests in the HSBC Pool RALs, and (bii) a “nonconsolidation” opinion of counsel to HSBC NA and HSBC Trust TFS with respect to HSBC NA and HSBC Trust TFS and any other Affiliate subsidiary of HSBC NA and HSBC Trust TFS 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 TFS shall not be obligated to restructure the terms of any agreement relating to the RAL Program, or any aspect of the RAL Program Contract itself, in any way that will have a Material Adverse Effect upon adversely affects the economic interests of HSBC NA TFS or HSBC Trust or their its Affiliates, and (B) the failure of HSBC NA and HSBC Trust TFS 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 TrustTFS’s obligations under this Participation Agreement and shall in no event give rise to any liability on the part of HSBC NA, HSBC Trust TFS or any of their its Affiliates. With respect to such opinions and the RAL Program for a particular Calculation PeriodTax Year, (i1) BFC shall use all commercially reasonable efforts to request such opinions 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 RAL Program Contract made or proposed by HSBC NA, HSBC Trust or their AffiliatesTFS, (ii2) BFC shall use all commercially reasonable efforts to 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 RAL Program Contract made or proposed by HSBC NA, HSBC Trust or their AffiliatesTFS, and (iii3) HSBC NA BFC and HSBC Trust and their Affiliates and BFC TFS shall cooperate and use all commercially reasonable efforts to complete all changes to the terms of all Program ContractsRAL Program, 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 the RAL Program made or proposed by BFC or HSBC NA, HSBC Trust or their AffiliatesTFS. BFC shall be solely responsible for all legal fees of the parties associated with any opinion undertaken pursuant to this Section 4.72.1(c). In connection with any request by BFC for an opinion pursuant to this Section 4.7 2.1(c) for a particular Calculation PeriodTax Year, HSBC NA and HSBC Trust TFS shall, upon reasonable request by BFC, provide to BFC copies of all material operative agreements executed by HSBC NA, HSBC Trust TFS or thier its Affiliates relating to the origination of HSBC RALs by the RAL Originator, or the sale and servicing of any of HSBC NA’s or HSBC TrustTFS’s retained interests interest in the HSBC Pool RALs, for such Calculation PeriodTax Year, as well as all material operative agreements executed by HSBC NA TFS or HSBC Trust its Affiliates relating to the financing or sale of such retained interests interest for such Calculation PeriodTax Year, in each case only to the extent (yi) such agreements are reasonably necessary to be reviewed by BFC in connection with the opinions contemplated by this Section 4.72.1(c), and (zii) the terms of such agreements permit disclosure to third parties; provided, however, that HSBC NA and HSBC Trust TFS 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 4.72.1(c), 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 TFS 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 TFS to the extent deemed necessary by HSBC NA or HSBC TrustTFS, in its sole discretion, to protect its business interests and trade secrets. To the extent that the terms and conditions of this Section 2.1(c) are inconsistent with the terms and conditions of the Second ICB Consent Letter, the terms and conditions of the Second ICB Consent Letter shall control.