Attached files
EXHIBIT
33.2
ASSERTION
OF COMPLIANCE WITH
APPLICABLE
SERVICING CRITERIA
The Bank
of New York Mellon (formerly The Bank of New York), BNY Mellon Trust of Delaware
(formerly BNYM (Delaware)) and The Bank of New York Mellon Trust Company, N.A.
(formerly The Bank of New York Trust Company, N.A.), (collectively, the
“Company”) provides this platform-level assessment of compliance with the
servicing criteria specified in Item 1122(d) of Regulation AB promulgated by the
Securities and Exchange Commission. Management has determined that
the servicing criteria are applicable in regard to the servicing platform as of
and for the period as follows:
Platform:
Publicly-issued (i.e., transaction-level reporting initially required under the
Securities Exchange Act of 1934, as amended) asset-backed securities issued on
or after January 1, 2006 and like-kind transactions issued prior to January 1,
2006 that comply with Regulation AB for which the Company provides trustee,
securities administration or paying agent services, as defined and to the extent
applicable in the transaction agreements, other than residential mortgage-backed
securities and other mortgage-related asset-backed securities.
Period: Twelve
months ended December 31, 2009 (the “Period”).
Applicable Servicing
Criteria: All servicing criteria set forth in Item 1122(d), to the extent
required by the related transaction agreements as to any transaction, except as
set forth in the column titled “Not Applicable To Platform” in Appendix 1
attached hereto.
With
respect to applicable servicing criteria 1122(d)(2)(iii) and 1122(d)(4)(vii),
there were no activities performed during the Period with respect to the
Platform, because there were no occurrences of events that would require the
Company to perform such activities.
With
respect to servicing criteria 1122(d)(2)(vi) management has engaged a vendor to
perform the activities required by these servicing
criteria. Management has determined that this vendor is not
considered a “servicer” as defined in Item 1101(j) of Regulation AB, and
management has elected to take responsibility for assessing compliance with the
servicing criteria applicable to this vendor as permitted by Interpretation
17.06 of the SEC Division of Corporation Finance Manual of Publicly Available
Telephone Interpretations (“Interpretation 17.06”). Management has
policies and procedures in place designed to provide reasonable assurance that
the vendor’s activities comply in all material respects with the servicing
criteria applicable to the vendor. Management is solely responsible
for determining that it meets the SEC requirements to apply Interpretation 17.06
for the vendor and related criteria.
With
respect to the Platform and the Period, the Company provides the following
assessment of compliance in respect of the Applicable Servicing
Criteria:
1. The
Company is responsible for assessing its compliance with the Applicable
Servicing Criteria.
2. The
Company has assessed compliance with the Applicable Servicing Criteria including
servicing criteria for which compliance is determined based on Interpretation
17.06 as described above. In performing this assessment, management
used the criteria set forth by the Securities and Exchange Commission in
paragraph (d) of Item 1122 of Regulation AB.
3. Based
on such assessment, as of and for the Period, the Company has complied, in all
material respects, with the Applicable Servicing Criteria other than as
identified on Schedule A attached.
KPMG LLP,
an independent registered public accounting firm, has issued an attestation
report with respect to the Company’s compliance with the Applicable Servicing
Criteria as of and for the Period.
The Bank
of New York
Mellon The
Bank of New York Mellon
The Bank
of New York Mellon
Trust The
Bank of New York Mellon Trust
Company,
N.A.
Company, N.A.
BNY
Mellon Trust of Delaware
/s/ Robert L.
Griffin
/s/ Patrick J.
Tadie
Robert L.
Griffin
Patrick J. Tadie
Authorized
Officer Authorized
Officer
The Bank
of New York Mellon
The Bank of New York Mellon
Trust
Company, N.A.
/s/ Troy L.
Kilpatrick
Troy
L. Kilpatrick
Authorized
Officer
Dated: February
25, 2010
Schedule
A
Material
Instances of Non-Compliance by the Company
1122(d)(2)(i):
Payments on pool assets are
deposited into the appropriate custodial bank accounts and related bank clearing
accounts no more than two business days of receipt, or such other number of days
specified in the transaction agreements.
During
the reporting period, certain payments on pool assets were not deposited into
the appropriate segregated custodial bank account within the time frame required
by the related transaction documents.
The
segregated account for each specified series of securities was in existence
prior to the time the deposits were to be made into such account but such
account was not utilized in all instances by the Trustee as stated above.
However, payments related to each specified series of securities were timely
remitted to the investors in such series.
Existing
procedures have been reviewed with staff to enable future payments to be
deposited into the segregated account for each specified series within the
applicable time frames.
Appendix
1
SERVICING
CRITERIA
|
APPLICABLE
TO PLATFORM
|
NOT
APPLICABLE TO PLATFORM
|
||
Performed
Directly by the Company
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Performed
by Vendor(s) for which the Company is the Responsible
Party
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|||
General
Servicing Considerations
|
||||
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other triggers
and events of default in accordance with the transaction
agreements.
|
X
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||
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
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||
1122(d)(1)(iii)
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Any
requirements in the transaction agreements to maintain a back-up servicer
for the pool assets are maintained.
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X
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||
1122(d)(1)(iv)
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A
fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in
the amount of coverage required by and otherwise in accordance with the
terms of the transaction agreements.
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X
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||
Cash
Collection and Administration
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||||
1122(d)(2)(i)
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Payments
on pool assets are deposited into the appropriate custodial bank accounts
and related bank clearing accounts no more than two business days of
receipt, or such other number of days specified in the transaction
agreements.
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X
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||
1122(d)(2)(ii)
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Disbursements
made via wire transfer on behalf of an obligor or to an investor are made
only by authorized personnel.
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X
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||
1122(d)(2)(iii)
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Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
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X
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||
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
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X
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||
1122(d)(2)(v)
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Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
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X
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||
1122(d)(2)(vi)
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Unissued
checks are safeguarded so as to prevent unauthorized
access.
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X
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1122(d)(2)(vii)
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Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
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X
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Investor
Remittances and Reporting
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||||
1122(d)(3)(i)
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Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the
terms specified in the transaction agreements; (C) are filed with the
Commission as required by its rules and regulations; and (D) agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the
Servicer.
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X
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||
1122(d)(3)(ii)
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Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
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X
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1122(d)(3)(iii)
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Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
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X
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||
1122(d)(3)(iv)
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Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
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X
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Pool
Asset Administration
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||||
1122(d)(4)(i)
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Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
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X
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1122(d)(4)(ii)
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Pool
asset and related documents are safeguarded as required by the transaction
agreements
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X
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1122(d)(4)(iii)
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Any
additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the
transaction agreements.
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X
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1122(d)(4)(iv)
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Payments
on pool assets, including any payoffs, made in accordance with the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such other
number of days specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance with the
related pool asset documents.
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X
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||
1122(d)(4)(v)
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The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
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X
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1122(d)(4)(vi)
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Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
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X
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||
1122(d)(4)(vii)
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Loss
mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction
agreements.
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X
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||
1122(d)(4)(viii)
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Records
documenting collection efforts are maintained during the period a pool
asset is delinquent in accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
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X
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1122(d)(4)(ix)
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Adjustments
to interest rates or rates of return for pool assets with variable rates
are computed based on the related pool asset documents.
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X
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1122(d)(4)(x)
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Regarding
any funds held in trust for an obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other number of
days specified in the transaction agreements.
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X
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||
1122(d)(4)(xi)
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Payments
made on behalf of an obligor (such as tax or insurance payments) are made
on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support
has been received by the Servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the transaction
agreements.
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X
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||
1122(d)(4)(xii)
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Any
late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
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X
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||
1122(d)(4)(xiii)
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Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by the Servicer, or such other number of days
specified in the transaction agreements.
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X
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1122(d)(4)(xiv)
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Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded in
accordance with the transaction agreements.
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X
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||
1122(d)(4)(xv)
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Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in
the transaction agreements.
|
X
|