Conditions of the Obligations of the Initial Purchasers The obligations of the several Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
Conditions of Initial Purchasers’ Obligations The obligation of each Initial Purchaser to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
Conditions of the Initial Purchasers’ Obligations The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. (b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. (c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (e) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect. (f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect. (h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Conditions to the Obligations of the Purchasers The obligation of each of the Purchasers to purchase Shares at the Closing is subject to the fulfillment, or the waiver by such Purchaser, of each of the following conditions on or before the Closing:
Conditions to the Obligations of the Underwriters The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the Seller herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the Seller made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the Seller in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party has been duly authorized by all necessary limited liability company action on the part of the Company and has been duly executed and delivered by the Company and when the Collateral Certificate has been authenticated and delivered in accordance with the terms of the Pooling and Servicing Agreement, the Collateral Certificate will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained or made and such as may be required under state securities or Blue Sky laws except for such filings as may be required to perfect the security interest in the Receivables pursuant to the Receivables Purchase Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained or made and such as may be required under state securities or Blue Sky laws and except for such filings as may be required to perfect the security interest in the Receivables pursuant to the Pooling and Servicing Agreement or the Collateral pursuant to the Indenture. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its terms. (ii) The sale and delivery of the Notes in the manner contemplated by this Agreement and the Pooling and Servicing Agreement do not require (A) the qualification of the Pooling and Servicing Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (iii) The Indenture has been qualified under the Trust Indenture Act. (iv) The Collateral Certificate, when executed and authenticated in accordance with the terms of the Pooling and Servicing Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement. (v) Each of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects. (vii) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,” to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects. (viii) To the extent New York law is applicable, the Indenture constitutes the legal, valid and binding obligation of the Issuer under the law of the State of New York, enforceable against the Issuer in accordance with its terms. (ix) When the Notes have been duly executed and delivered by the Issuer, authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for by the Underwriters pursuant to this Agreement, the holder of record of any Note will be entitled to the benefits afforded by the Indenture, and the Notes will constitute the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus and have considered the matters required to be stated therein and the matters stated therein, although they are not independently verifying the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment in this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such opinion, counsel may (x) as to matters involving the application of laws other than the laws of any jurisdiction other than New York and the United States of America, assume the conformity of such laws with the laws of New York and (y) rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to be transferred to the Issuer as described in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia