EXHIBITS 5.1 AND 8.1
[Letterhead of Kutak Rock LLP]
September 19, 2003
First National Funding LLC
1620 Dodge Street
Omaha, NE 68102
Re: First National Master Note Trust
Ladies and Gentlemen:
We have acted as special counsel to First National Funding LLC, a
Nebraska limited liability company (the "LLC"), in connection with the
preparation of and filing by the LLC, as co-registrant, and First Bankcard
Master Credit Card Trust (the "Master Trust"), as co-registrant, with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), of a Registration Statement on Form S-3, Registration Nos. 333-
106732-00 and 333-106732-01 as amended (the "Registration Statement"), and the
related base prospectus, dated as of the date hereof (the "Base Prospectus") and
the form of prospectus supplement (together with the Base Prospectus, the
"Prospectus"), filed by the LLC and the Master Trust under the Act, registering
asset-backed notes secured by a beneficial interest in a pool of receivables
arising under certain revolving credit card accounts (the "Notes"). The Notes of
a particular Series will be issued pursuant to a Master Indenture (the "Master
Indenture") between First National Master Note Trust (the "Trust") and an
indenture trustee (the "Indenture Trustee"), incorporated by reference as
Exhibit 4.1 to the Registration Statement and a related Indenture Supplement
(the "Indenture Supplement") between the Trust and the Indenture Trustee,
substantially in the form filed as Exhibit 4.2 to the Registration Statement.
Unless otherwise defined herein, all capitalized terms used herein shall have
the meanings assigned to them in the Master Indenture. This opinion letter is
furnished in accordance with the requirements of Item 16 of Form S-3 and Item
601(b)(5)(i) and (8) of Regulation S-K.
We have examined executed copies of the Registration Statement and
the form of Indenture Supplement attached thereto, as well as executed copies of
the Master Indenture, Transfer and Servicing Agreement and Receivables Purchase
Agreement filed on Form 8-K on November 4, 2002, and such other records,
documents and instruments as we have deemed necessary for the purposes of the
opinions set forth below (collectively, the "Transaction Documents"). In such
examination, we have assumed the following: (i) the authenticity of original
documents and the genuineness of all signatures; (ii) the conformity to the
originals of all documents submitted to us as copies; and (iii) the truth,
accuracy and completeness of the
First National Funding LLC
September 19, 2003
Page 2
information, representations and warranties contained in the records, documents,
instruments and certificates we have reviewed.
We have assumed for the purposes of the opinions set forth below
that the Notes will be issued in Series created as described in the Registration
Statement and that the Notes will, at your direction, be sold by the Trust for
reasonably equivalent consideration. We have also assumed that the Transaction
Documents, the Notes and the issuance and sale of the Notes will be duly
authorized by all necessary corporate and limited liability company action and
that the Notes will be duly issued, executed, authenticated and delivered in
accordance with the provisions of the Transaction Documents. In expressing our
opinion, we have assumed, without independent verification, that the facts
presented in the Transaction Documents are correct, the Transaction Documents
have been or will be consummated according to their terms, and the factual
representations of the LLC and its affiliates are correct. In addition, we have
assumed that the parties to each Transaction Document will satisfy their
respective obligations thereunder and, to the extent that the Issuer's
obligation will depend on the enforceability of a document against other parties
to such document, that such document is enforceable against other parties to
such documents. We have also assumed for purposes of the opinions expressed
below that the Registration Statement, as finally amended (including any
necessary post-effective amendments) will have been declared effective under the
Act and such effectiveness shall not have been terminated or rescinded. We
express no opinion with respect to any series of Notes for which we do not act
as counsel to you.
The opinion set forth in paragraph 2 of this letter is based upon
the applicable provisions of the Internal Revenue Code of 1986, as amended,
Treasury regulations promulgated and proposed thereunder, current positions of
the Internal Revenue Service (the "IRS") contained in published Revenue Rulings
and Revenue Procedures, current administrative positions of the IRS and existing
judicial decisions. This opinion is subject to the explanations and
qualifications set forth under the caption "Federal Income Tax Consequences" in
the Prospectus. No tax rulings will be sought from the IRS with respect to any
of the matters discussed herein.
On the basis of the foregoing examination and assumptions, and upon
consideration of applicable law, it is our opinion that:
1. When each of the Transaction Documents for a series of
Notes has been duly and validly authorized, executed and
delivered by each and every party thereto substantially
in the form filed as an exhibit to the Registration
Statement or filed on Form 8-K and the Notes of that
Series have been duly executed, authenticated and
delivered in accordance with the Master Indenture and
the related Indenture Supplement and sold as
contemplated in the Registration Statement, any
amendment thereto, and the Prospectus relating thereto,
such Notes will be legally issued and binding
obligations of the Issuer, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar
First National Funding LLC
September 19, 2003
Page 3
laws relating to or affecting creditors' rights
generally and general equitable principles, including,
without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a
proceeding in equity or at law and the discretion of the
court before which any proceeding therefore may be
brought.
2. While the tax description under the heading "Federal
Income Tax Consequences" in the Prospectus does not
purport to discuss all possible federal income tax
ramifications of the purchase, ownership, and
disposition of the Notes, particularly to U.S.
purchasers subject to special rules under the Internal
Revenue Code of 1986, as amended, we hereby adopt and
confirm the opinions set forth in the Prospectus under
the heading "Federal Income Tax Consequences", which
discusses the federal income tax consequences of the
purchase, ownership and disposition of the Notes. There
can be no assurance, however, that the tax conclusions
presented therein will not be successfully challenged by
the IRS, or significantly altered by new legislation,
changes in IRS positions or judicial decisions, any of
which challenges or alterations may be applied
retroactively with respect to completed transactions. We
note, however, that the form of prospectus supplement
filed with the Registration Statement does not relate to
a specific transaction. Accordingly, the above
referenced description of the federal income tax
consequences may, under certain circumstances, require
modification when an actual transaction is undertaken.
We hereby consent to the filing of this opinion letter as an exhibit
to the Registration Statement and to the references to this firm under the
headings "Legal Matters" and "Federal Income Tax Consequences" in the
Prospectus. In giving such consent we do not admit that we are "experts" within
the meaning of the Act or the rules and regulations of the Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion letter as an exhibit or otherwise.
We do not express any opinion herein concerning any law other than
the law of the State of Nebraska with respect to instruments and agreements
specifically governed by the law of Nebraska and the federal law of the United
States.
Very truly yours,
/s/ Kutak Rock LLP
KUTAK ROCK LLP