Exhibit 10.4

 

EXECUTION COPY

 

AMBAC ASSURANCE CORPORATION,

as Note Insurer

 

CAPITAL ONE AUTO FINANCE, INC.,

as Servicer

 

CAPITAL ONE AUTO FINANCE, INC.,

as Originator

 

CAPITAL ONE AUTO RECEIVABLES, LLC,

as Seller

 

CAPITAL ONE AUTO FINANCE TRUST 2005-A,

as Issuer

 

and

 

JPMORGAN CHASE BANK, N.A.

as Indenture Trustee

 

INSURANCE AGREEMENT

 

$1,500,000,000

 

Capital One Auto Finance Trust 2005-A

Asset Backed Notes, Series 2005-A

Class A-1 Notes, Class A-2 Notes,

Class A-3 Notes and Class A-4 Notes

Dated as of April 7, 2005

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Table of Contents

 

						Page
I		DEFINITIONS				1
II		REPRESENTATIONS, WARRANTIES AND COVENANTS				11
		Section 2.01.		Representation and Warranties of the COAF Companies		11
		Section 2.02.		Affirmative Covenants of the COAF Companies		15
		Section 2.03.		Negative Covenants of the COAF Companies		19
		Section 2.04.		Representation and Covenants of Indenture Trustee.		20
		Section 2.05.		Representations, Warranties and Covenants of the Issuer		20
		Section 2.06.		Representations and Warranties of Ambac.		21
		Section 2.07.		Covenant of Note Insurer		22
III		THE POLICIES; REIMBURSEMENT				23
		Section 3.01.		Issuance of the Policies		23
		Section 3.02.		Payment of Fees and Premium.		25
		Section 3.03.		Reimbursement and Additional Payment Obligation.		26
		Section 3.04.		Indemnification; Limitation of Liability.		28
		Section 3.05.		Payment Procedure		30
		Section 3.06.		Subrogation		31
		Section 3.07.		Reimbursement		31
IV		FURTHER AGREEMENTS				31
		Section 4.01.		Effective Date; Term of the Insurance Agreement		31
		Section 4.02.		Further Assurances and Corrective Instruments.		32
		Section 4.03.		Obligations Absolute.		32
		Section 4.04.		Assignments; Reinsurance; Third-party Rights.		33
		Section 4.05.		Liability of the Note Insurer		34
		Section 4.06.		Nonpetition Covenant		34
		Section 4.07.		Parties To Join in Enforcement Action.		35
V		DEFAULTS; REMEDIES				36
		Section 5.01.		Defaults		36
		Section 5.02.		Remedies; No Remedy Exclusive.		37
		Section 5.03.		Waivers.		38
VI		MISCELLANEOUS				38
		Section 6.01.		Amendments, Etc		38
		Section 6.02.		Notices		38
		Section 6.03.		Severability		40
		Section 6.04.		Governing Law		40

 

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Table of Contents

(continued)

						Page
		Section 6.05.		Consent to Jurisdiction		41
		Section 6.06.		Consent of the Note Insurer		41
		Section 6.07.		Counterparts		41
		Section 6.08.		Headings		41
		Section 6.09.		Trial by Jury Waived		42
		Section 6.10.		Limited Liability		42
		Section 6.11.		Entire Agreement		42
		Section 6.12.		Limitation of Liability		42

 

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INSURANCE AGREEMENT

 

This INSURANCE AGREEMENT (this “Insurance Agreement”) is dated as of April 7, 2005 by and among AMBAC ASSURANCE CORPORATION (the “Note Insurer”), CAPITAL ONE AUTO FINANCE, INC., in its individual capacity and as the Servicer (the “Servicer”), CAPITAL ONE AUTO FINANCE, INC., as Originator (the “Originator”), CAPITAL ONE AUTO RECEIVABLES, LLC, as Seller (the “Seller”), CAPITAL ONE AUTO FINANCE TRUST 2005-A, as Issuer (the “Issuer”) and JPMORGAN CHASE BANK, N.A., in its capacity as indenture trustee (the “Indenture Trustee”).

 

WHEREAS, the Indenture Trustee is authenticating $1,500,000,000 principal amount of the Capital One Auto Finance Trust 2005-A, Asset Backed Notes, Series 2005-A, Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes, pursuant to an Indenture as more specifically defined below. The Notes will be secured by the Trust Estate as defined in the Indenture;

 

WHEREAS, the Issuer, Seller, Originator and Servicer have requested that the Note Insurer issue its Note Guaranty Insurance Policy (the “Note Policy”) to guarantee payment of Insured Payments (as defined in Note Policy) with respect to the Class A Notes, upon such terms and conditions as were mutually agreed upon by the parties and subject to the terms and conditions of the Note Policy and has asked the Note Insurer to issue an Interest Rate Swap Policy (the “Swap Policy”) and together with the Note Policy, the “Policies”) and the Note Insurer has agreed to insure certain amounts which may be due from the Owner Trustee on behalf of Capital One Auto Finance Trust 2005-A (the “Issuer”) to the Swap Provider under the Swap Agreement;

 

WHEREAS, the parties hereto desire to specify the conditions precedent to the issuance of the Policies by the Note Insurer, the indemnity and reimbursement to be provided by the Originator and the Servicer in respect of amounts paid by the Note Insurer under the Policies and to provide for certain other matters;

 

WHEREAS, the Note Insurer shall be paid an insurance premium pursuant to the Indenture, and the details of such premium are set forth herein; and

 

WHEREAS, each COAF Company (as defined below) has undertaken certain obligations in consideration for the Note Insurer’s issuance of the Policies;

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

The terms defined in this Article I shall have the meanings provided herein for all purposes of this Insurance Agreement, unless the context clearly requires otherwise, in both singular and plural form, as appropriate. Unless the context clearly

 

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requires otherwise, all capitalized terms used herein and not otherwise defined in this Article I shall have the meanings assigned to them in the Transaction Documents (as defined below). All words used herein shall be construed to be of such gender or number as the circumstances require. This “Insurance Agreement” shall mean this Insurance Agreement as a whole and as the same may, from time to time hereafter, be amended, supplemented or modified. The words “herein,” “hereby,” “hereof,” “hereto,” “hereinabove” and “hereinbelow,” and words of similar import, refer to this Insurance Agreement as a whole and not to any particular paragraph, clause or other subdivision hereof, unless otherwise specifically noted.

 

“Business Day” means any day other than a Saturday or a Sunday or a day on which banking institutions in the states of Delaware, California, Texas, Virginia or New York, or in the state in which the Corporate Trust Office of the Indenture Trustee is located, are authorized or obligated by law, executive order or government decree to be closed.

 

“Capital One Information” means the information included in the Prospectus, but excluding the Note Insurer Information and the Underwriter Information.

 

“Class A Notes” means the Capital One Auto Finance Trust 2005-A, Asset Backed Notes, Series 2005-A, designated as Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes issued in accordance with the provisions of the Indenture.

 

“COAF” means Capital One Auto Finance, Inc., a Texas corporation, and its successors and assigns.

 

“COAF Company” means each of the Servicer, the Originator and the Seller.

 

“Commission” means the Securities and Exchange Commission.

 

“Cumulative Net Charge-Off Ratio” means, as of any Determination Date, the ratio of (i) the aggregate Principal Balance of Receivables that became Defaulted Receivables plus all the Cram Down Losses which occurred during the period from the Initial Cutoff Date through the end of the related Collection Period reduced by the amount of Liquidation Proceeds with respect to Defaulted Receivables received during such period which are applied to principal of the Defaulted Receivables to (ii) the sum of (A) the initial aggregate Principal Balance of the Initial Receivables plus (B) the initial aggregate Principal Balance of the Subsequent Receivables as of their respective Subsequent Cutoff Dates.

 

“Date of Issuance” means the date on which each Policy is issued as specified therein.

 

“Default” means any event which results, or which with the giving of notice or the lapse of time or both would result, in an Event of Default.

 

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“Delinquency Ratio” means, as of a Determination Date, the ratio of (i) the aggregate Principal Balance of Receivables that were Delinquent Receivables at the end of the related Collection Period to (ii) the aggregate Principal Balance of all Receivables as of the first day of such related Collection Period.

 

“Delinquent Receivable” means any Receivable (other than a Defaulted Receivable) as to which any portion of a scheduled payment remains unpaid for more than 60 days from the date on which it is due and payable.

 

“Event of Default” means any event of default specified in Section 5.01 of this Insurance Agreement.

 

“Fee Letter” means the fee letter dated as of April 7, 2005, from the Note Insurer to the Owner Trustee, the Servicer, and the Indenture Trustee.

 

“Financial Statements” means, with respect to COFC, the balance sheets and the statements of income, retained earnings and cash flows for the 12-month period then ended and the notes thereto which have been provided to the Note Insurer.

 

“Fitch” means Fitch Ratings, and any successor thereto, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, “Fitch” shall be deemed to refer to any other nationally recognized rating agency designated by the Note Insurer.

 

“Indemnification Agreement” means that certain Indemnification Agreement dated as of March 30, 2005, by and among the Note Insurer, and Barclays Capital Inc. and Deutsche Bank Securities Inc. as Representatives of the several Underwriters (as defined therein).

 

“Indenture” means that certain Indenture dated as of April 7, 2005, between the Issuer and the Indenture Trustee.

 

“Insurance Agreement Event of Default” means any of the following:

 

(a) any failure (i) to observe or perform any covenant or obligation of the Owner Trustee, the Originator, the Seller, the Issuer or the Servicer set forth herein, or in the Indenture, the Sale and Servicing Agreement or the Purchase Agreement which has not been cured within sixty (60) days (or such longer period not in excess of ninety (90) as may be reasonably necessary to remedy such failure; provided that (i) that failure is capable of remedy within ninety (90) days or less and (ii) the Note Insurer consents in its sole discretion to that longer period) from the date of receipt by the Owner Trustee, the Originator, the Seller, the Issuer or the Servicer, as the case may be, of written notice from the Indenture Trustee or the Note Insurer of such breach or default and such breach or default could reasonably have a material adverse effect on the interests of the Note Insurer or the Noteholders (as determined in the Note Insurer’s sole discretion), or (ii) of any Person to deposit into the Collection Account or the Reserve Account all amounts required to be deposited therein by the required deposit date and such

 

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failure could reasonably have a material adverse effect on the interests of the Note Insurer or the Noteholders (as determined in the Note Insurer’s sole discretion) and such failure has continued for a period of at least five (5) Business Days (A) after notice is received by such Person from the Indenture Trustee or the Note Insurer or (B) after discovery of such failure by a responsible officer of such Person; provided, however, that no Insurance Agreement Event of Default will result from the breach by the Servicer of any covenant for which the repurchase of the affected Receivables is specified as the sole remedy pursuant to Section 3.6 of the Sale and Servicing Agreement and such repurchase takes place within the time frame required by Section 2.3 and Section 3.6 of the Sale and Servicing Agreement;

 

(b) any representation, warranty or statement of the Indenture Trustee, the Servicer, the Owner Trustee, the Originator, the Issuer or the Seller (other than representations and warranties under Schedule I of the Sale and Servicing Agreement and Section 3.2 of the Purchase Agreement) contained herein or in the Indenture or in the Sale and Servicing Agreement, the Purchase Agreement or in any report, document or certificate delivered pursuant to the foregoing agreements shall prove to be incorrect in any material respect as of the time when the same shall have been made and, within sixty (60) days (or such longer period not in excess of ninety (90) as may be reasonably necessary to remedy such failure; provided that (i) that failure is capable of remedy within ninety (90) days or less and (ii) the Note Insurer consents in its sole discretion to that longer period) after written notice thereof shall have been given to the Indenture Trustee and the defaulting party (if not the Indenture Trustee) by the Servicer, the Note Insurer, the Indenture Trustee or by Noteholders constituting Noteholder Approval, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured or waived by the Note Insurer and could reasonably have a material adverse affect on the interests of the Note Insurer or the Noteholders (as determined in the Note Insurer’s sole discretion);

 

(c) the cessation of a valid perfected first priority security interest in the Receivables or the Trust Accounts in favor of the Indenture Trustee which is not cured within seven (7) Business Days of receipt of notice thereof;

 

(d) [Reserved];

 

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(e) as of the Determination Date with respect to each Collection Period, the three month average of the Delinquency Ratios for such Collection Period and the two Collection Periods immediately preceding such Collection Period is greater than the level specified for such month in such table:

 

Collection Period		Delinquency Ratio
April 2005 to September 2005		6.50	%
October 2005 to December 2005		8.00	%
January 2006 to February 2006		9.00	%
March 2006 to September 2006		7.50	%
October 2006 to December 2006		9.00	%
January 2007 to February 2007		10.00	%
March 2007 to September 2007		8.50	%
October 2007 to December 2007		10.00	%
January 2008 to February 2008		11.00	%
March 2008 to April 2008		9.50	%
May 2008 to September 2008		10.50	%
October 2008 to December 2008		12.00	%
January 2009 to February 2009		13.00	%
March 2009 to September 2009		11.50	%
October 2009 to December 2009		13.00	%
January 2010 to February 2010		14.00	%
March 2010 and thereafter		12.50	%

 

provided, that an Insurance Agreement Event of Default occurring under this clause (e) shall be deemed to have been cured if, as of the Determination Date with respect to each of any three (3) consecutive Collection Periods following the occurrence of an Insurance Agreement Event of Default pursuant to this clause (e), the average of the Delinquency Ratios for such Collection Periods is less than the percentage above for the applicable Collection Period;

 

(f) a draw is made on the Note Policy;

 

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(g) as of the Determination Date in any month prior to and including the applicable month set forth in the table below, the Cumulative Net Charge-Off Ratio exceeds the level specified for such month in such table:

 

Months		Cumulative Net Charge-Off Ratio
April 2005 to September 2005		Not Applicable
October 2005 to December 2005		7.00	%
January 2006 to March 2006		9.30	%
April 2006 to June 2006		12.00	%
July 2006 to September 2006		14.30	%
October 2006 to December 2006		16.00	%
January 2007 to March 2007		17.30	%
April 2007 to June 2007		19.00	%
July 2007 to September 2007		20.00	%
October 2007 and thereafter		21.00	%

 

(h) except as permitted by the Sale and Servicing Agreement, any assignment by the Servicer of its rights and obligations under the Sale and Servicing Agreement or any attempt to make such an assignment;

 

(i) failure to make any payment with respect to the Class A Notes pursuant to the Indenture according to the priorities set forth in Section 4.4(a) of the Sale and Servicing Agreement, which continues unpaid for a period of five (5) Business Days;

 

(j) [Reserved];

 

(k) the occurrence of a Servicer Termination Event or Event of Default under the Indenture; or

 

(l) any Event of Default or Termination Event (as defined in the Swap Agreement) occurs under the Swap Agreement.

 

“Investment Company Act” means the Investment Company Act of 1940, including, unless the context otherwise requires, the rules and regulations thereunder, as amended.

 

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“Issuer” means Capital One Auto Finance Trust 2005-A.

 

“Late Payment Rate” means the rate of interest as it is publicly announced by Citibank, N.A. at its principal office in New York, New York as its prime rate (any change in such prime rate of interest to be effective on the date such change is announced by Citibank, N.A.) plus 3%. The Late Payment Rate shall be computed on the basis of a year of 365 days calculating the actual number of days elapsed. In no event shall the Late Payment Rate exceed the maximum rate permissible under any applicable law limiting interest rates.

 

“Managed Assets” means, with respect to any Person, receivables owned, receivables sold to securitization trusts and serviced by such Person, and all other serviced or owned assets.

 

“Material Adverse Change” means, with respect to any event or circumstance, a material adverse effect on (a) the business, financial condition, operations or assets of the Issuer (considered separately) or the Issuer, the Seller, the Servicer and the Originator (taken as a whole), (b) the ability of any COAF Company to perform its obligations under any Transaction Document to which it is a party, (c) the validity, enforceability of, or collectibility of, amounts payable by any COAF Company when due under any Transaction Document to which it is a party or (d) the status, existence, perfection or priority of the interest of the Issuer or of the Indenture Trustee in the Trust Estate.

 

“Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and any successor thereto, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized rating agency designated by the Note Insurer.

 

“Note Insurer Information” means the information relating to the Note Insurer in the Prospectus Supplement as of the date thereof under the heading “The Note Guaranty Insurance Policy and the Note Insurer” and the financial statements of the Note Insurer incorporated by reference into the Prospectus Supplement.

 

“Notes” means the $1,500,000,000 Capital One Auto Finance Trust 2005-A, Asset Backed Notes, Series 2005-A, Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes.

 

“Owners” means registered holders of Class A Notes.

 

“Person” means an individual, joint stock company, trust, unincorporated association, joint venture, corporation, limited liability company, business or owner trust, partnership or other organization or entity (whether governmental or private).

 

“Premium” means the premium payable in accordance with Section 3.02 of this Insurance Agreement.

 

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“Prospectus” means, collectively, (i) the Preliminary Prospectus Supplement dated March 24, 2005 to the Prospectus dated November 30, 2004 and (ii) the Final Prospectus Supplement dated March 30, 2005 to the Prospectus dated November 30, 2004, each relating to the sale of the Class A Notes on the Closing Date.

 

“Purchase Agreement” means that certain Purchase Agreement, dated as of April 7, 2005, by and between COAF and Seller.

 

“Representative” means Deutsche Bank Securities Inc. and Barclays Capital Inc., as representatives for the several Underwriters.

 

“Reserve Account Increase Condition” means:

 

(i) the occurrence of one or both of the following events:

 

(a) as of the Determination Date with respect to any Collection Period, the average of the Delinquency Ratios for such Collection Period and the two Collection Periods immediately preceding such Collection Period is greater than the level specified for such month in the following table:

 

Collection Period		Delinquency Ratio
April 2005 to September 2005		5.50	%
October 2005 to December 2005		7.00	%
January 2006 to February 2006		8.00	%
March 2006 to September 2006		6.50	%
October 2006 to December 2006		8.00	%
January 2007 to February 2007		9.00	%
March 2007 to September 2007		7.50	%
October 2007 to December 2007		9.00	%
January 2008 to February 2008		10.00	%
March 2008 to April 2008		8.50	%
May 2008 to September 2008		9.50	%
October 2008 to December 2008		11.00	%
January 2009 to February 2009		12.00	%
March 2009 to September 2009		10.50	%
October 2009 to December 2009		12.00	%
January 2010 to February 2010		13.00	%
March 2010 and thereafter		11.50	%

 

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provided, that a Reserve Account Increase Condition occurring under this clause (a) shall be deemed to have been cured if, as of the Determination Date with respect to each of any three (3) consecutive Collection Periods following the occurrence of a Reserve Account Increase Condition pursuant to this clause, the average of the Delinquency Ratios for such Collection Periods is less than the percentage specified above for the applicable Collection Period; or

 

(b) as of the Determination Date in any month prior to and including the applicable month set forth in the table below, the Cumulative Net Charge-Off Ratio exceeds the level specified for such month in such table:

 

Month After Closing		Cumulative Net Charge-Off Ratio
April 2005 to June 2005		Not Applicable
July 2005 to September 2005		4.00	%
October 2005 to December 2005		6.00	%
January 2006 to March 2006		8.30	%
April 2006 to June 2006		10.30	%
July 2006 to September 2006		12.30	%
October 2006 to December 2006		14.00	%
January 2007 to March 2007		15.30	%
April 2007 to June 2007		16.00	%
July 2007 to September 2007		17.00	%
October 2007 and thereafter		18.00	%

 

(ii) the occurrence or continuation of an Event of Default which has not been waived or cured.

 

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“Sale and Servicing Agreement” means that certain Sale and Servicing Agreement, dated as of April 7, 2005, between the Seller, the Issuer, the Servicer and the Indenture Trustee.

 

“Securities Act” means the Securities Act of 1933, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

“Securities Exchange Act” means the Securities Exchange Act of 1934, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.

 

“Seller” means Capital One Auto Receivables, LLC, a Delaware limited liability company.

 

“S&P” means Standard & Poor’s Ratings Services, and any successor thereto, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally recognized rating agency designated by the Note Insurer.

 

“Swap Agreement” means the ISDA Master Agreement dated as of April 7, 2005 between the Issuer, and the Swap Provider, the Schedule thereto and the Confirmation bearing Reference No. N376016N dated April 7, 2005.

 

“Swap Policy” means the Interest Rate Swap Insurance Policy No. SW0238BE issued by Ambac, which guarantees certain payments due under the Swap Agreement.

 

“Swap Provider” means Deutsche Bank AG, New York Branch, and its permitted successors and assigns.

 

“Tangible Net Worth” means, with respect to any Person, the net worth of such Person calculated in accordance with GAAP, after subtracting therefrom the aggregate amount of such Person’s intangible assets, including, without limitation, goodwill, franchises, licenses, patents, trademarks, copyrights and service marks.

 

“Target Cumulative Net Charge-Off Ratio” means, with respect to the Payment Dates occurring in October 2006, April 2007, and October 2007, the Cumulative Net Charge-Off Ratio set forth below opposite such Payment Date:

 

Payment Date		Target Cumulative Net Charge-Off Ratio
October 2006		6.00	%
April 2007		8.00	%
October 2007		10.00	%

 

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“Term of the Insurance Agreement” shall be determined as provided in Section 4.01 of this Insurance Agreement.

 

“Transaction” means the transactions contemplated by the Transaction Documents including the transactions described in the Prospectus.

 

“Transaction Documents” means this Insurance Agreement, the Indemnification Agreement, the Prospectus, the Indenture, the Swap Agreement, the Purchase Agreement, the Sale and Servicing Agreement, the Limited Guaranty, the Underwriting Agreement, the Trust Agreement, and the Notes.

 

“Underwriter Information” means the information furnished by the Underwriters in writing expressly for use in the Prospectus and included in the second paragraph (regarding concessions and discounts) and the first sentence of the ninth paragraph (regarding market making) under the caption “Underwriting” in the Prospectus Supplement.

 

“Underwriting Agreement” has the meaning assigned thereto in the Indenture.

 

ARTICLE II

 

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

Section 2.01. Representations and Warranties.

 

(a) Representations and Warranties of the Seller. The Seller makes the following representations and warranties as of the date hereof and the Date of Issuance:

 

(i) Existence and Power. The Seller is a Delaware limited liability company validly existing and in good standing under the laws of its state of organization and has, in all material respects, full power and authority to own its assets and operate its business as presently owned or operated, and to execute, deliver and perform its obligations under the Transaction Documents to which it is a party. The Seller has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so could reasonably result in a Material Adverse Change.

 

(ii) Authorization and No Contravention. The execution, delivery and performance by the Seller of the Transaction Documents to which it is a party have been duly authorized by all necessary action on the part of the Seller and do not contravene or constitute a default under (A) any applicable law, rule or regulation, (B) its organizational documents or (C) any material indenture or material agreement or material instrument to which the Seller is a party or by which its properties are bound (other than violations of such laws, rules, regulations, indentures or agreements which do not affect the legality, validity or enforceability of any of such agreements and which, individually or in the aggregate, could reasonably result in a Material Adverse Change).

 

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(iii) No Consent Required. No approval or authorization by, or filing with, any Governmental Authority is required in connection with the execution, delivery and performance by the Seller of any Transaction Document other than (A) UCC filings, (B) approvals and authorizations that have previously been obtained and filings that have previously been made or approvals, authorizations or filings which will be made on a timely fashion and (C) authorizations or filings which, if not obtained or made, would not reasonably result in a Material Adverse Change.

 

(iv) Binding Effect. Each Transaction Document to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws affecting creditors’ rights generally and, if applicable, the rights of creditors of limited liability companies from time to time in effect or by general principles of equity.

 

(v) No Proceedings. There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threaten