Exhibits 5.1 and 8.1
[Letterhead of Kutak Rock LLP]
April 23, 2007
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 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 No. 333-140273 as amended (the "Registration
Statement"), and the related base prospectus, dated as of April 13, 2007 (the
"Base Prospectus") and the related prospectus supplement dated as of April 18,
2007 (together with the Base Prospectus, the "Prospectus"), filed pursuant to
Rule 424(b) of the Act, registering the Series 2007-1 Asset Backed Notes secured
by a beneficial interest in a pool of receivables arising under certain
revolving credit card accounts (the "Notes"). The Notes will be issued pursuant
to the Master Indenture (the "Master Indenture") between First National Master
Note Trust (the "Trust") and an indenture trustee (the "Indenture Trustee"),
filed as Exhibit 4.1 to the Registration Statement and a related Indenture
Supplement (the "Indenture Supplement", and together with the Master Indenture,
the "Indenture") between the Trust and the Indenture Trustee to be dated on or
about April 24, 2007, substantially in the form filed as Exhibit 4.3 to the
Registration Statement. Unless otherwise defined herein, all capitalized terms
used herein shall have the meanings assigned to them in the 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, as well as
executed copies of the Master Indenture, the Pooling and Servicing Agreement,
Transfer and Servicing Agreement and Receivables Purchase Agreement filed on
Form 8-K on November 4, 2002, the form of
APRIL 23, 2007
Page 2
Indenture Supplement filed as an exhibit to the Registration Statement, the form
of First Amendment to Second Amended and Restated Pooling and Servicing
Agreement filed as an exhibit to the Registration Statement, the form of First
Amendment to the Transfer and Servicing Agreement filed as an exhibit to the
Registration Statement, 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
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 representation 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 document. 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 the applicable law, it is our opinion that:
1. When each of the Transaction Documents for the 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 have been duly executed, authenticated
and delivered
APRIL 23, 2007
Page 3
in accordance with the Indenture 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 laws relating to
or affecting creditors' rights generally and general equitable principles,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealings 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 position or
judicial decisions, any of which challenges or alterations may be applied
retroactively with respect to complete 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