**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 are subject to 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 (the “Platform”).

 

Period:  Twelve months ended December 31, 2013 (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 criterion 1122(d)(2)(vi) management has engaged a vendor to perform the activities required by the servicing criterion.  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 criterion 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 criterion 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 criterion.

 

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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 the servicing criterion 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.

 

4.  Schedule B attached includes Management’s discussion of the material instances of noncompliance noted in Schedule A, including remediation efforts taken by the Company.

 

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.

 

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| The   Bank of New York Mellon                     |   | BNY   Mellon Trust of Delaware |
|---------------------------------------------------|--------|--------------------------------|
|                                              |   |                           |
|                                              |   |                           |
| /s/ Richard P. Stanley                            |   | /s/ Robert L. Griffin          |
| Richard P. Stanley                                |   | Robert L. Griffin              |
| Authorized Signatory                              |   | Authorized Signatory           |
|                                              |   |                           |
|                                              |   |                           |
| The   Bank of New York Mellon Trust Company, N.A. |   |                           |
|                                              |   |                           |
|                                              |   |                           |
| /s/ Troy L. Kilpatrick                            |   |                           |
| Troy L. Kilpatrick                                |   |                           |
| Authorized Signatory                              |   |                           |

 

 

Dated:     February 26, 2014

 

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Schedule A

 

**Material Instances of Noncompliance by the Company**

 

Management’s assessment of compliance with the Applicable Servicing Criteria set forth by the Securities and Exchange Commission in paragraph (d) of Item 1122 of Regulation AB for the Period, disclosed that material instances of noncompliance occurred with respect to the servicing criteria set forth in Items 1122(d)(3)(i)(A) and 1122(d)(3)(ii), as follows:

 

·              With respect to servicing criterion 1122(d)(3)(i)(A), certain reports to investors were not prepared in accordance with the timeframes and other terms set forth in the related transaction agreements.

 

·              With respect to servicing criterion 1122(d)(3)(ii), certain distributions to investors were not remitted in accordance with the timeframes set forth in the transaction agreements.

 

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Schedule B

 

**Management’s Discussion on Material Instances of Noncompliance by the Company**

 

1122(d)(3)(i): *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.*

 

Noncompliance:

 

During the Period, certain reports to investors were not prepared in accordance with the timeframes and other terms set forth in the related transaction agreements.

 

Remediation:

 

When management became aware of such instances, controls designed to prevent such occurrences in the future were implemented.  Impacted investors received either (i) reports containing accurate information that were not previously distributed or (ii) revised  reports notifying investors that previous information in reports were revised with corrected information. Reports were delivered to investors and filed on EDGAR on Form 10-D or Form 10-D/A, as required.

 

1122(d)(3)(ii): *Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.*

 

Noncompliance:

 

During the Period, for an auto transaction in the Platform, certain amounts due to the related investors were not remitted in accordance with the timeframes set forth in the related transaction agreements.

 

Remediation:

 

When management became aware of such instance, the transaction was properly set-up on the Company’s automated payment system and other controls designed to prevent such occurrences in the future were implemented.  Notice of the failure was made available to investors in the transaction through the facilities of DTC on August 21, 2013 and on a Form 10-D filed on EDGAR on the same date, and investors were offered compensation for the one day remittance delay.  The investor report was not revised as it accurately reflected the amounts due to investors and available for payment on the payment due date.

 

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Appendix 1

 
| ** **                        | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                         | ** ** | **APPLICABLE TO PLATFORM**                         | ** ** | ** **                                                                                                                     |
|-----------------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------|
| **REG AB    REFERENCE** | ** ** | **SERVICING CRITERIA**                                                                                                                                                                                                                                                                                                                                                                        | ** ** | **Performed Directly    by the Company** | ** ** | **Performed by    Vendor(s) for which   the Company is the    Responsible Party** | ** ** | **NOT APPLICABLE    TO PLATFORM** |
|                              | ** ** | **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                                                            |       |                                                                                                                           |   |   |
| 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                                                            |       |                                                                                                                           |   |   |
| 1122(d)(1)(iii)                   |       | Any   requirements in the transaction agreements to maintain a back-up servicer for   the pool assets are maintained.                                                                                                                                                                                                                                                                              |       |                                                         |       |                                                                                                                           |   | X |
| 1122(d)(1)(iv)                    |       | 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.                                                                                                                          |       |                                                         |       |                                                                                                                           |   | X |
|                              | ** ** | **Cash collection and administration**                                                                                                                                                                                                                                                                                                                                                             | ** ** | ** **                                                   | ** ** | ** **                                                                                                                     |   |   |
| 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.                                                                                                                                                       |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(2)(ii)                    |       | Disbursements   made via wire transfer on behalf of an obligor or to an investor are made   only by authorized personnel.                                                                                                                                                                                                                                                                          |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(2)(iii)                   |       | 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.                                                                                                                                                                    |       | X                                                            |       |                                                                                                                           |   |   |
| 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.                                                                                                                                   |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(2)(v)                     |       | 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 240.13k-1(b)(1) of this chapter. |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(2)(vi)                    |       | Unissued   checks are safeguarded so as to prevent unauthorized access.                                                                                                                                                                                                                                                                                                                            |       |                                                         |       | X                                                                                                                              |   |   |

 

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| ** **                        | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** ** | **APPLICABLE TO PLATFORM**                         | ** ** | ** **                                                                                                                     |
|-----------------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------|
| **REG AB    REFERENCE** | ** ** | **SERVICING CRITERIA**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** ** | **Performed Directly    by the Company** | ** ** | **Performed by    Vendor(s) for which   the Company is the    Responsible Party** | ** ** | **NOT APPLICABLE    TO PLATFORM** |
| 1122(d)(2)(vii)                   |       | 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 (A)  Are mathematically accurate; (B) Are   prepared within 30 calendar days after the bank statement cutoff date, or   such other number of days specified in the transaction agreements;   (C) Are 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. |       | X                                                            |       |                                                                                                                           |   |   |
|                              | ** ** | **Investor remittances and reporting**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | ** **                                                   | ** ** | ** **                                                                                                                     |   |   |
| 1122(d)(3)(i)                     |       | 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.                                          |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(3)(ii)                    |       | Amounts   due to investors are allocated and remitted in accordance with timeframes,   distribution priority and other terms set forth in the transaction   agreements.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(3)(iii)                   |       | 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.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(3)(iv)                    |       | Amounts   remitted to investors per the investor reports agree with cancelled checks,   or other form of payment, or custodial bank statements.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       | X                                                            |       |                                                                                                                           |   |   |
|                              | ** ** | **Pool asset administration**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                         | ** ** | ** **                                                                                                                     |   |   |
| 1122(d)(4)(i)                     |       | Collateral   or security on pool assets is maintained as required by the transaction   agreements or related pool asset documents.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(4)(ii)                    |       | Pool   asset and related documents are safeguarded as required by the transaction   agreements                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(4)(iii)                   |       | 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.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |       | X                                                            |       |                                                                                                                           |   |   |

 

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| ** **                        | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               | ** ** | **APPLICABLE TO PLATFORM**                         | ** ** | ** **                                                                                                                     |
|-----------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------|
| **REG AB    REFERENCE** | ** ** | **SERVICING CRITERIA**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              | ** ** | **Performed Directly    by the Company** | ** ** | **Performed by    Vendor(s) for which   the Company is the    Responsible Party** | ** ** | **NOT APPLICABLE    TO PLATFORM** |
| 1122(d)(4)(iv)                    |       | Payments   on pool assets, including any payoffs, made in accordance with the related   pool asset documents are posted to the applicable 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.                                                                                                                                                                               |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(4)(v)                     |       | The   servicer’s records regarding the pool assets agree with the servicer’s   records with respect to an obligor’s unpaid principal balance.                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(4)(vi)                    |       | 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.                                                                                                                                                                                                                                                                                                                                                     |       |                                                         |       |                                                                                                                           |   | X |
| 1122(d)(4)(vii)                   |       | 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.                                                                                                                                                                                                                                                                                                           |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(4)(viii)                  |       | 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).                                                                                        |       |                                                         |       |                                                                                                                           |   | X |
| 1122(d)(4)(ix)                    |       | Adjustments   to interest rates or rates of return for pool assets with variable rates are   computed based on the related pool asset documents.                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       | X                                                            |       |                                                                                                                           |   |   |
| 1122(d)(4)(x)                     |       | 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 asset, or such other number of   days specified in the transaction agreements. |       |                                                         |       |                                                                                                                           |   | X |

 

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| ** **                        | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | **APPLICABLE TO PLATFORM**                         | ** ** | ** **                                                                                                                     |
|-----------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------|
| **REG AB    REFERENCE** | ** ** | **SERVICING CRITERIA**                                                                                                                                                                                                                                                                                                                                                                               | ** ** | **Performed Directly    by the Company** | ** ** | **Performed by    Vendor(s) for which   the Company is the    Responsible Party** | ** ** | **NOT APPLICABLE    TO PLATFORM** |
| 1122(d)(4)(xi)                    |       | 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. |       |                                                         |       |                                                                                                                           |   | X |
| 1122(d)(4)(xii)                   |       | 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.                                                                                                                                                       |       |                                                         |       |                                                                                                                           |   | X |
| 1122(d)(4)(xiii)                  |       | 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.                                                                                                                                                                                      |       |                                                         |       |                                                                                                                           |   | X |
| 1122(d)(4)(xiv)                   |       | Delinquencies,   charge-offs and uncollectible accounts are recognized and recorded in   accordance with the transaction agreements.                                                                                                                                                                                                                                                                      |       |                                                         |       |                                                                                                                           |   | X |
| 1122(d)(4)(xv)                    |       | Any   external enhancement or other support, identified in Item   1114(a)(1) through (3) or Item 1115 of this Regulation AB, is   maintained as set forth in the transaction agreements.                                                                                                                                                                                                        |       | X                                                            |       |                                                                                                                           |   |   |

 

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