**Exhibit33.3**

 

 

ASSERTION OF COMPLIANCE WITH

APPLICABLE SERVICING CRITERIA

 

TheBank of New York Mellon (formerly The Bank of New York), BNY Mellon Trust ofDelaware (formerly BNYM (Delaware)) and The Bank of New York Mellon TrustCompany, N.A. (formerly The Bank of New York Trust Company, N.A.),(collectively, the “Company”) provides this platform-level assessment ofcompliance with the servicing criteria specified in Item 1122(d) of RegulationAB promulgated by the Securities and Exchange Commission.  Management has determined that the servicingcriteria are applicable in regard to the servicing platform as of and for theperiod as follows:

 

Platform:Publicly-issued (i.e., transaction-level reporting initially required under theSecurities Exchange Act of 1934, as amended) asset-backed securities issued onor 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 extentapplicable in the transaction agreements, other than residentialmortgage-backed securities and other mortgage-related asset-backed securities.

 

Period:  Twelve months ended October 31, 2009 (the “Period”).

 

ApplicableServicing Criteria: All servicing criteria set forth in Item 1122(d),to the extent required by the related transaction agreements as to anytransaction, except as set forth in the column titled “Not Applicable ToPlatform” in Appendix 1 attached hereto.

 

Withrespect to applicable servicing criteria 1122(d)(2)(iii) and 1122(d)(4)(vii),there were no activities performed during the Period with respect to thePlatform, because there were no occurrences of events that would require theCompany to perform such activities.

 

Withrespect to servicing criteria 1122(d)(2)(vi) management has engaged a vendor toperform the activities required by these servicing criteria.  Management has determined that this vendor isnot considered a “servicer” as defined in Item 1101(j) of Regulation AB, and managementhas elected to take responsibility for assessing compliance with the servicingcriteria applicable to this vendor as permitted by Interpretation 17.06 of theSEC Division of Corporation Finance Manual of Publicly Available TelephoneInterpretations (“Interpretation 17.06”). Management has policies and procedures in place designed to providereasonable assurance that the vendor’s activities comply in all materialrespects with the servicing criteria applicable to the vendor.  Management is solely responsible fordetermining that it meets the SEC requirements to apply Interpretation 17.06for the vendor and related criteria.

 

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Withrespect to the Platform and the Period, the Company provides the following assessmentof compliance in respect of the Applicable Servicing Criteria:

 

1.  The Company is responsible for assessing itscompliance with the Applicable Servicing Criteria.

 

2.  The Company has assessed compliance with theApplicable Servicing Criteria including servicing criteria for which complianceis determined based on Interpretation 17.06 as described above.  In performing this assessment, managementused the criteria set forth by the Securities and Exchange Commission inparagraph (d) of Item 1122 of Regulation AB.

 

3.  Based on such assessment, as of and for thePeriod, the Company has complied, in all material respects, with the ApplicableServicing Criteria other than as identified on Schedule A attached.

 

KPMGLLP, an independent registered public accounting firm, has issued anattestation report with respect to the Company’s compliance with the ApplicableServicing Criteria as of and for the Period.

 

2

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| 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:  December 22, 2009

 

3

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Schedule A

 

Material Instances of Non-Compliance by the Company

 

1122(d)(2)(i):*Payments on pool assets are deposited into theappropriate custodial bank accounts and related bank clearing accounts no morethan two business days of receipt, or such other number of days specified inthe transaction agreements.*

 

Duringthe reporting period, certain payments on pool assets were not deposited intothe appropriate segregated custodial bank account within the time framerequired by the related transaction documents.

 

Thesegregated account for each specified series of securities was in existenceprior to the time the deposits were to be made into such account but suchaccount was not utilized in all instances by the Trustee as stated above.However, payments related to each specified series of securities were timelyremitted to the investors in such series.

 

Existingprocedures have been reviewed with staff to enable future payments to bedeposited into the segregated account for each specified series within theapplicable time frames.

 

4

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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.                                                                                                                                                                                   |       | X1                                       |       |                                                                             |   |   |
|                   |       |                                                                                                                                                                                                                                                                                                                                                                                           |       |                                     |       |                                                                             |   |   |
| 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 13k-1(b)(1) of the Securities Exchange Act. |       | X                                        |       |                                                                             |   |   |

 

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1 Servicing functions related to criterion1122(d)(2)(vi) were outsourced to a third party as of December 19, 2008 and assuch, this crtierion is only applicable to the Platform as of October 31, 2009and for the period from December 19, 2008 through October 31,  2009.

 

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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** |
|                   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                     |       |                                                                             |   |   |
| 1122(d)(2)(vi)         |       | Unissued  checks are safeguarded so as to prevent unauthorized access.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       | X2                                       |       | X2                                                                               |   |   |
|                   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                     |       |                                                                             |   |   |
| 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 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. |       | 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                                        |       |                                                                             |   |   |

 

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2 Servicing functions related to this criterionwere outsourced to a third party as of December 19, 2008.  As of December 19, 2008 and for the periodfrom November 1, 2008 through December 19, 2008, servicing functions related tothis criterion were performed directly by the Company.  As of October 31. 2009 and for the periodfrom December 19, 2008 through October 31, 2009, servicing functions related tothis criterion were performed by a Vendor for which the Company is theResponsible Party.

 

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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** |
|                   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                     |       |                                                                             |   |   |
| 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                                        |       |                                                                             |   |   |
|                   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                     |       |                                                                             |   |   |
| 1122(d)(4)(iv)         |       | 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.                                                                                                    |       | 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                                        |       |                                                                             |   |   |

 

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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** |
|                   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                     |       |                                                                             |   |   |
| 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 assets, or such other number of days specified in the  transaction agreements. |       |                                     |       |                                                                             |   | X |
|                   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                     |       |                                                                             |   |   |
| 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 Regulation AB, is maintained as set forth in the  transaction agreements.                                                                                                                                                                                                                                                                                                                                                                                                                   |       | X                                        |       |                                                                             |   |   |

 

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