-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AGD62gPHrZTvqgZa0qJPmNh3yBK0hhk6iyK9JIyAH5YcCpbd7nJpIwanJPemZBkG lfb7Mhua6H8q5+MeFd3tKQ== 0000950137-09-002437.txt : 20090331 0000950137-09-002437.hdr.sgml : 20090331 20090331154340 ACCESSION NUMBER: 0000950137-09-002437 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 11 CONFORMED PERIOD OF REPORT: 20081231 FILED AS OF DATE: 20090331 DATE AS OF CHANGE: 20090331 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST NATIONAL FUNDING LLC CENTRAL INDEX KEY: 0001171040 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 000000000 STATE OF INCORPORATION: NE FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-50139 FILM NUMBER: 09718642 MAIL ADDRESS: STREET 1: 1620 DODGE STREET CITY: OHAHA STATE: NE ZIP: 68102 FILER: COMPANY DATA: COMPANY CONFORMED NAME: First National Master Note Trust CENTRAL INDEX KEY: 0001396730 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-140273-01 FILM NUMBER: 09718641 BUSINESS ADDRESS: STREET 1: 1620 DODGE STREET STOP CODE 3395 CITY: OMAHA STATE: NE ZIP: 68197 BUSINESS PHONE: 402-341-0500 MAIL ADDRESS: STREET 1: 1620 DODGE STREET STOP CODE 3395 CITY: OMAHA STATE: NE ZIP: 68197 10-K 1 c50353e10vk.txt FORM 10-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K (Mark One) [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For fiscal year ended December 31, 2008 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from __________ to __________ Commission File Number of Issuing Entity: 333-140273-01 FIRST NATIONAL MASTER NOTE TRUST (Exact name of Issuing Entity as specified in its charter) Commission File Number of Depositor: 333-140273 FIRST NATIONAL FUNDING LLC (Exact name of Depositor as specified in its charter) FIRST NATIONAL BANK OF OMAHA (Exact name of Sponsor as specified in its charter) Nebraska Not Applicable (State or other jurisdiction of incorporation or organization of (IRS Employer Identification No. of Issuing Issuing Entity) Entity)
1620 Dodge Street, Stop Code 3395, Omaha, Nebraska 68197-3198 (Address of principal executive offices of Issuing Entity) (Zip Code)
(402) 341-0500 (Issuing Entity's telephone number, including area code) Securities Registered Pursuant to Section 12(b) of the Act: None Securities Registered Pursuant to Section 12(g) of the Act: None Title of Each Class Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES [ ] NO [X] Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. YES [ ] NO [X] Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES [X] NO [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (Section 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X] Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [X] Smaller reporting company [ ] (Do not check if a smaller reporting company) Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES [ ] NO [X] State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant's most recently completed second fiscal quarter. Registrant does not have any voting or non-voting common equity held by non-affiliates as of the date of this report, has not been involved in bankruptcy proceedings during the past five years and is not a corporate registrant. DOCUMENTS INCORPORATED BY REFERENCE No documents have been incorporated by reference into this Form 10-K. PART I THE FOLLOWING ITEMS HAVE BEEN OMITTED IN ACCORDANCE WITH GENERAL INSTRUCTION J TO FORM 10-K: (A) ITEM 1: BUSINESS (B) ITEM 1A: RISK FACTORS (C) ITEM 2: PROPERTIES (D) ITEM 3: LEGAL PROCEEDINGS (E) ITEM 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS ITEM 1B. UNRESOLVED STAFF COMMENTS. Not Applicable. PART II THE FOLLOWING ITEMS HAVE BEEN OMITTED IN ACCORDANCE WITH GENERAL INSTRUCTION J TO FORM 10-K: (F) ITEM 5: MARKET FOR THE REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES (G) ITEM 6: SELECTED FINANCIAL DATA (H): ITEM 7: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION (I) ITEM 7A: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK (J) ITEM 8: FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA (K) ITEM 9: CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE (L) ITEM 9A: CONTROLS AND PROCEDURES ITEM 9A (T). CONTROLS AND PROCEDURES. Not Applicable. ITEM 9B. OTHER INFORMATION. None. PART III THE FOLLOWING ITEMS HAVE BEEN OMITTED IN ACCORDANCE WITH GENERAL INSTRUCTION J TO FORM 10-K: (M) ITEM 10: DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE (N) ITEM 11: EXECUTIVE COMPENSATION (O) ITEM 12: SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS (P) ITEM 13: CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE (Q) ITEM 14: PRINCIPAL ACCOUNTANT FEES AND SERVICES PART IV ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. a) Listed below are the documents filed as part of this report: 1) Financial Statements. None. In accordance with General Instruction J to Form 10-K, the Financial Statements required by Item 8 of Form 10-K have been omitted. 2) Financial Schedules. None. In accordance with General Instruction J to Form 10-K, any Financial Schedules required by Item 8 of Form 10-K have been omitted. 3) Exhibits. See Item 15(b) below. b) The exhibits listed on the Exhibit Index are filed as part of, or incorporated by reference into, this report on Form 10-K. c) See Item 15(a) above. SUBSTITUTE INFORMATION PROVIDED IN ACCORDANCE WITH GENERAL INSTRUCTION J TO FORM 10-K: ITEM 1112(B) OF REGULATION AB. SIGNIFICANT OBLIGORS OF POOL ASSETS (FINANCIAL INFORMATION). Not applicable. ITEM 1114(B)(2) OF REGULATION AB. CREDIT ENHANCEMENT AND OTHER SUPPORT, EXCEPT FOR CERTAIN DERIVATIVES INSTRUMENTS (FINANCIAL INFORMATION REGARDING SIGNIFICANT ENHANCEMENT PROVIDERS). Not applicable. ITEM 1115(B) OF REGULATION AB. CERTAIN DERIVATIVES INSTRUMENTS (FINANCIAL INFORMATION). Not applicable. 2 ITEM 1117 OF REGULATION AB. LEGAL PROCEEDINGS. In re: Payment Card Fee and Merchant Discount Antitrust Litigation Beginning in June 2005, several retail merchants filed lawsuits in federal courts, claiming to represent a class of similarly situated merchants, and alleging that MasterCard and VISA USA, together with their members, conspired to charge retailers excessive interchange in violation of federal antitrust laws. In October 2005, these suits were consolidated in In re: Payment Card Fee and Merchant Discount Antitrust Litigation, currently pending in the United States District Court for the Eastern District of New York. The plaintiffs seek unspecified treble damages, injunctive relief, attorneys' fees and costs. On April 24, 2006, plaintiffs filed a first consolidated and amended complaint, naming the First National Bank of Omaha ("the Bank") and others as defendants. The plaintiffs realleged the claims in their original complaints and further claimed that defendants violated federal and California antitrust laws by combining to impose certain fees and to adopt rules and practices of VISA USA and MasterCard that the plaintiffs contend constitute unlawful restraints of trade. In July 2007, the Bank entered into judgment and loss sharing agreements (the sharing agreements) with VISA USA and certain financial institutions to apportion financial responsibilities arising from any potential adverse judgment or settlement. The Bank denies all material allegations. (A later-filed action, which has been transferred to the Eastern District of New York for consolidated treatment, names the Bank as a defendant; however this was dismissed without prejudice in 2008.) Management has estimated the Bank's proportionate obligation associated with the ultimate disposition of this litigation and the fair value of this obligation has been recorded as a litigation liability of $35.6 million at December 31, 2008. This estimated liability is subject to significant risk and may materially change. Furthermore, management cannot predict with any degree of certainty how the final outcome of this litigation may impact the broader credit card industry, and in this regard, the Bank. Other Covered Litigation In 1998, the United States Department of Justice filed an antitrust lawsuit against the MasterCard and VISA USA associations of financial institutions that issue debit or credit cards. The government alleged that the associations had violated antitrust law by not allowing member banks to issue cards from competing brands, such as American Express and Discover. In 2001, a New York district court entered judgment in favor of the Department of Justice and ordered the associations to repeal these policies. The United States Court of Appeals for the Second Circuit affirmed and the United States Supreme Court denied certiorari. Since then, American Express Travel Related Services Company, Inc. and Discover Financial Services, Inc. brought suits against MasterCard and VISA USA. Although the Bank is not a party to these suits, the Bank is a member of the MasterCard and VISA USA associations and these suits are covered in the sharing agreements referred to above. These suits seek civil damages and other relief associated with the exclusionary rules that were the subject of the Department of Justice suit. On November 7, 2007, American Express announced it had reached a settlement agreement with VISA for the above litigation. The settlement amount of $2.25 billion due to American Express 3 will be paid by VISA and certain other nonaffiliated member banks. The Bank was not a named defendant in this lawsuit and therefore will not be directly liable for any amount of the settlement; however, in accordance with VISA USA's revised bylaws and the sharing agreements, the Bank and other members will be required to share this loss incurred by VISA. Based on this settlement agreement and the Bank's interest in VISA USA, the Bank recorded a litigation liability of $40.7 million. The escrow created by VISA's stock offerings cover the funds due from settlement with American Express, therefore, no liability exists for the Bank related to this litigation at December 31, 2008. On October 27, 2008, Discover announced it had reached a settlement with VISA for the above litigation. The settlement amount of $1.74 billion due to Discover will be paid by VISA and certain other nonaffiliated member banks. The Bank was not a named defendant in this lawsuit and therefore will not be directly liable for any amount of the settlement; however, in accordance with VISA USA's revised bylaws and the sharing agreements, the Bank and other members were required to share this loss incurred by VISA. Based on the information provided by VISA, along with management's judgment, the Bank recorded a litigation liability of $13.9 million at December 31, 2007. The escrow created by VISA was further funded in December 2008, in order to cover the settlement with Discover under the sharing agreements; therefore, no liability exists for the Bank related to this litigation at December 31, 2008. On December 16, 2008, VISA, Inc. completed a transaction under which the Bank's conversion rate in its Class B stock was reduced to compensate for the Bank's liability under the sharing agreements. ITEM 1119 OF REGULATION AB. AFFILIATIONS AND CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS. Information required by Item 1119 of Regulation AB has been omitted from this report on Form 10-K in reliance on the Instruction to Item 1119. This information has been provided previously in a prospectus, dated November 19, 2007, filed by First National Master Note Trust (the "Trust"), pursuant to Rule 424(b)(5) of the Securities Act of 1933, on November 21, 2007. ITEM 1122 OF REGULATION AB. COMPLIANCE WITH APPLICABLE SERVICING CRITERIA. Each of FNBO, First National Credit Card Center, Inc. ("FNCCC") and The Bank of New York Trust Company, N.A. (the "Trustee") (each, a "Servicing Participant"), has been identified by the registrant as a party participating in the servicing function during the reporting period with respect to more than 5% of the pool assets held by the Trust. Each of the Servicing Participants has completed a report on an assessment of compliance with the servicing criteria applicable to such Servicing Participant (each, a "Report on Assessment") during the Trust's fiscal year ending December 31, 2008, which Reports on Assessment are attached as exhibits to this Form 10-K. In addition, each of the Servicing Participants has provided an attestation report (each, an "Attestation Report") by a registered independent public accounting firm regarding its related Report on Assessment. Each Attestation Report is attached as an exhibit to this Form 10-K. 4 The Report on Assessment of the Trustee identified the following material instances of noncompliance by the Trustee with the applicable servicing criteria described in the Trustee's Report on Assessment: 1122(d)(2)(i): Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days of receipt, or such other number of days specified in the transaction agreements. During the reporting period, certain payments on pool assets were not deposited into the appropriate segregated custodial bank account within the time frame required by the related transaction documents. The segregated account for each specified series of securities was in existence prior to the time the deposits were to be made into such account but such account was not utilized in all instances by the Trustee as stated above. However, payments related to each specified series of securities were timely remitted to the investors in such series. Existing procedures have been reviewed with staff to enable future payments to be deposited into the segregated account for each specified series within the applicable time frames. FNBO believes that no material impact to the noteholders resulted from the instances of noncompliance described above. ITEM 1123 OF REGULATION AB. SERVICER COMPLIANCE STATEMENT. Each of FNBO and FNCCC has been identified by the registrant as a servicer during the reporting period with respect to the pool assets held by the Trust. Each of FNBO and FNCCC has provided a Servicer Compliance Statement, signed by an authorized officer, and each such Servicer Compliance Statement is attached as an exhibit to this Form 10-K. 5 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Issuing Entity has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Dated: March 31, 2009 FIRST NATIONAL MASTER NOTE TRUST By: First National Bank of Omaha, As Servicer of First National Master Note Trust By: /s/ Timothy D. Hart ------------------------------------ Timothy D. Hart, Senior Vice President SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO SECTION 15(D) OF THE ACT BY REGISTRANTS WHICH HAVE NOT REGISTERED SECURITIES PURSUANT TO SECTION 12 OF THE ACT. No annual report, proxy statement, form of proxy or other proxy soliciting material has been sent to Noteholders during the period covered by this Annual Report on Form 10-K and the registrant does not intend to furnish such materials to Noteholders subsequent to the filing of this report. EXHIBIT INDEX Exhibit 3.1 Articles of Organization of First National Funding LLC* Exhibit 3.2 Operating Agreement of First National Funding LLC, dated as of October 24, 2002* Exhibit 4.1 Master Indenture, dated as of October 24, 2002, between First National Master Note Trust and The Bank of New York* Exhibit 4.2 First Amendment to Master Indenture, dated as of November 17, 2003, between First National Master Note Trust and The Bank of New York* Exhibit 4.3 Series 2007-1 Indenture Supplement** Exhibit 4.4 Series 2007-2 Indenture Supplement*** Exhibit 4.5 Transfer and Servicing Agreement, dated as of October 24, 2002, among First National Funding LLC, First National Bank of Omaha and First National Master Note Trust* Exhibit 4.6 First Amendment to Transfer and Servicing Agreement** Exhibit 4.7 Second Amendment to Transfer and Servicing Agreement*** Exhibit 4.8 Trust Agreement of First National Master Note Trust, dated as of October 16, 2002, between First National Funding LLC and Wilmington Trust Company* Exhibit 4.9 Administration Agreement, dated as of October 24, 2002, between First National Master Note Trust and First National Bank of Omaha* Exhibit 4.10 Second Amended and Restated Pooling and Servicing Agreement, dated as of October 24, 2002, by and among First National Funding LLC, First National Bank of Omaha and The Bank of New York* Exhibit 4.11 First Amendment to Second Amended and Restated Pooling and Servicing Agreement** Exhibit 4.12 Second Amendment to Second Amended and Restated Pooling and Servicing Agreement***
- ---------- * Incorporated by reference from registrants' Form S-3 filed on January 29, 2007, file no. 333-140273 ** Incorporated by reference from registrants' Form 8-K filed on April 30, 2007, file no. 333-140273-01. *** Incorporated by reference from registrants' Form 8-K filed on December 4, 2007, file no. 333-140273-01. Exhibit 4.13 Collateral Series Supplement, dated as of October 24, 2002, among First National Funding LLC, First National Bank of Omaha and The Bank of New York, including form of Collateral Certificate* Exhibit 4.14 Receivables Purchase Agreement, dated as of October 24, 2002, between First National Bank of Omaha and First National Funding LLC* Exhibit 4.15 Services Agreement** Exhibit 4.16 Collection Agreement** Exhibit 23.1 Consent of Independent Registered Public Accounting Firm. Exhibit 31.1 Certification pursuant to Rule 13a-14(a)/ 15d-14(a) of the Securities Exchange Act of 1934 (Section 302 Certification). Exhibit 33.1 Report on Assessment of Compliance with Servicing Criteria (pursuant to Item 1122 of Regulation AB) concerning servicing activities of FNBO for the year ended December 31, 2008. Exhibit 33.2 Report on Assessment of Compliance with Servicing Criteria (pursuant to Item 1122 of Regulation AB) concerning servicing activities of FNCCC for the year ended December 31, 2008. Exhibit 33.3 Report on Assessment of Compliance with Servicing Criteria (pursuant to Item 1122 of Regulation AB) concerning servicing activities of the Trustee for the year ended December 31, 2008. Exhibit 34.1 Independent Registered Public Accounting Firm Attestation Report concerning servicing activities of FNBO for the year ended December 31, 2008. Exhibit 34.2 Independent Registered Public Accounting Firm Attestation Report concerning servicing activities of FNCCC for the year ended December 31, 2008. Exhibit 34.3 Independent Registered Public Accounting Firm Attestation Report concerning servicing activities of the Trustee for the year ended December 31, 2008. Exhibit 35.1 Servicer Compliance Statement (pursuant to Item 1123 of Regulation AB) of FNBO for the year ended December 31, 2008. Exhibit 35.2 Servicer Compliance Statement (pursuant to Item 1123 of Regulation AB) of FNCC for the year ended December 31, 2008.
- ---------- * Incorporated by reference from registrants' Form S-3 filed on January 29, 2007, file no. 333-140273. ** Incorporated by reference from registrants' Form 8-K filed on April 30, 2007, file no. 333-140273-01. EX-23.1 2 c50353exv23w1.txt EX-23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in Post-Effective Amendment No. 1 to Registration Statement No. 333-140273 of First National Master Note Trust and First National Funding, LLC on Form S-3 of our reports dated March 27, 2009, relating to Management's Report on Assessment of Compliance with Servicing Criteria Pursuant to Item 1122 of Regulation AB for First National Bank of Omaha and First National Credit Card Center, Inc., appearing in the Annual Report on Form 10-K of First National Master Note Trust and First National Funding, LLC for the year ended December 31, 2008. /s/ Deloitte & Touche LLP March 27, 2009 Omaha, Nebraska EX-31.1 3 c50353exv31w1.txt EX-31.1 EXHIBIT 31.1 CERTIFICATION PURSUANT TO RULE 13A-14/15D-14(D) OF THE SECURITIES EXCHANGE ACT OF 1934 I, Timothy D. Hart, certify that: 1. I have reviewed this report on Form 10-K and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of First National Master Note Trust (the "Exchange Act periodic reports"); 2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in the Exchange Act periodic reports; 4. I am responsible for reviewing the activities performed by the servicers and based on my knowledge and the compliance reviews conducted in preparing the servicer compliance statements required in this report under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic reports, the servicers have fulfilled their obligations under the servicing agreements in all material respects; and 5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed in this report on Form 10-K. In giving the certifications above, I have reasonably relied on information provided to me by The Bank of New York, The Bank of New York Trust Company, N.A. and BNYM (Delaware). Dated: March 31, 2009 /s/ Timothy D. Hart ---------------------------------------- Timothy D. Hart, Senior Vice President, First National Bank of Omaha (senior officer in charge of the servicing function of the servicer) [Signature page to Certification Pursuant to Rule 13a-14/15d-14(d) of the Securities Exchange Act of 1934] EX-33.1 4 c50353exv33w1.txt EX-33.1 EXHIBIT 33.1 REPORT ON ASSESSMENT OF COMPLIANCE WITH SERVICING CRITERIA PURSUANT TO ITEM 1122 OF REGULATION AB FIRST NATIONAL BANK OF OMAHA Date: March 27, 2009 The undersigned, a duly authorized representative of First National Bank of Omaha (the "Servicer"), hereby certifies as follows: (1) The Servicer is responsible for assessing its compliance with the servicing criteria set forth in 17 C.F.R. Section 229.1122(d) ("Item 1122(d) of Regulation AB"), except for servicing criteria specified in (1)(iii); (2)(iii) and (vi); 3(iii) and (iv); and 4(x) of Item 1122(d) of Regulation AB, which the Servicer has determined are inapplicable to the activities it performs with respect to the credit card asset backed securities transactions issued by First National Master Note Trust (the "Platform") being serviced (such applicable criteria, after giving effect to the exceptions identified above, the "Applicable Servicing Criteria"), as of and for the year ended December 31, 2008 relating to the servicing of the Platform; (2) The Servicer used the servicing criteria in Item 1122(d) of Regulation AB to assess compliance with the Applicable Servicing Criteria; (3) The Servicer is in compliance with the Applicable Servicing Criteria relating to the Platform as of and for the year ending December 31, 2008 in all material respects; and (4) Deloitte & Touche LLP, an independent registered public accounting firm, has issued an attestation report for the Platform on the Servicer's assessment of compliance with the Applicable Servicing Criteria as of and for the year ending December 31, 2008. FIRST NATIONAL BANK OF OMAHA, as Servicer By /s/ Timothy D. Hart ------------------------------------- Timothy D. Hart Senior Vice President [Signature page to Report on Assessment of Compliance of First National Bank of Omaha] EX-33.2 5 c50353exv33w2.txt EX-33.2 EXHIBIT 33.2 REPORT ON ASSESSMENT OF COMPLIANCE WITH SERVICING CRITERIA PURSUANT TO ITEM 1122 OF REGULATION AB FIRST NATIONAL CREDIT CARD CENTER, INC. Date: March 27, 2009 The undersigned, a duly authorized representative of First National Credit Card Center, Inc. (the "Servicer"), hereby certifies as follows: (1) The Servicer is responsible for assessing its compliance with the servicing criteria set forth in 17 C.F.R. Section 229.1122(d) ("Item 1122(d) of Regulation AB"), except for servicing criteria specified in (1)(iii); (2)(iii) and (vi); 3(iii) and (iv); and 4(x) of Item 1122(d) of Regulation AB, which the Servicer has determined are inapplicable to the activities it performs with respect to the credit card asset backed securities transactions issued by First National Master Note Trust (the "Platform") being serviced (such applicable criteria, after giving effect to the exceptions identified above, the "Applicable Servicing Criteria"), as of and for the year ended December 31, 2008 relating to the servicing of the Platform; (2) The Servicer used the servicing criteria in Item 1122(d) of Regulation AB to assess compliance with the Applicable Servicing Criteria; (3) The Servicer is in compliance with the Applicable Servicing Criteria relating to the Platform as of and for the year ending December 31, 2008 in all material respects; and (4) Deloitte & Touche LLP, an independent registered public accounting firm, has issued an attestation report for the Platform on the Servicer's assessment of compliance with the Applicable Servicing Criteria as of and for the year ending December 31, 2008. FIRST NATIONAL BANK CREDIT CARD CENTER, INC. By /s/ Stephen F. Eulie ------------------------------------- Stephen F. Eulie President FIRST NATIONAL BANK CREDIT CARD CENTER, INC. By /s/ Patrick J. Burns, Sr. ------------------------------------- Patrick J. Burns, Sr. Chief Financial Officer [Signature page to Report on Assessment of Compliance of First National Credit Card Center, Inc.] EX-33.3 6 c50353exv33w3.txt EX-33.3 EXHIBIT 33.3 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. Period: Twelve months ended December 31, 2008 (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), 1122(d)(2)(vi) 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 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. In performing this assessment, management used the criteria set forth by the Securities and Exchange Commission in paragraph (d) of Item 1122 of Regulation AB. 3. Based on such assessment, as of and for the Period, the Company has complied, in all material respects, with the Applicable Servicing Criteria other than as identified on Schedule A attached. KPMG LLP, an independent registered public accounting firm, has issued an attestation report with respect to the Company's compliance with the Applicable Servicing Criteria as of and for the Period. The Bank of New York Mellon The Bank of New York Mellon The Bank of New York Mellon Trust The Bank of New York Mellon Trust Company, N.A. Company, N.A. BNY Mellon Trust of Delaware /s/ Robert L. Griffin /s/ Patrick J. Tadie - ------------------------------------- ---------------------------------------- Robert L. Griffin Patrick J. Tadie Authorized Officer Authorized Officer The Bank of New York Mellon The Bank of New York Mellon Trust Company, N.A. /s/ Troy L. Kilpatrick ---------------------------------------- Troy L. Kilpatrick Authorized Officer Dated: February 27, 2009 Schedule A Material Instances of Non-Compliance by the Company 1122(d)(2)(i): Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days of receipt, or such other number of days specified in the transaction agreements. During the reporting period, certain payments on pool assets were not deposited into the appropriate segregated custodial bank account within the time frame required by the related transaction documents. The segregated account for each specified series of securities was in existence prior to the time the deposits were to be made into such account but such account was not utilized in all instances by the Trustee as stated above. However, payments related to each specified series of securities were timely remitted to the investors in such series. Existing procedures have been reviewed with staff to enable future payments to be deposited into the segregated account for each specified series within the applicable time frames. EX-34.1 7 c50353exv34w1.txt EX-34.1 EXHIBIT 34.1 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Shareholders First National Bank of Omaha We have examined management's assertion, included in the accompanying Management's Report on Assessment of Compliance with SEC Regulation AB Servicing Criteria, that First National Bank of Omaha (FNBO), complied with the servicing criteria set forth in Item 1122(d) of the Securities and Exchange Commission's Regulation AB for asset-backed securities transactions involving credit card receivables conducted by First National Master Note Trust (the "Platform") as of and for the year ended December 31, 2008, excluding criteria 1122(d)(1)(iii), 1122(d)(2)(iii), 1122(d)(2)(vi), 1122(d)(3)(iii), 1122(d)(3)(iv) and 1122(d)(4)(x), which management has determined are not applicable to the activities performed by FNBO with respect to the Platform. Management is responsible for FNBO's compliance with the servicing criteria. Our responsibility is to express an opinion on management's assertion about FNBO's compliance with the servicing criteria based on our examination. Our examination was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants, as adopted by the Public Company Accounting Oversight Board (United States), and, accordingly, included examining, on a test basis, evidence about FNBO's compliance with the applicable servicing criteria, including tests on a sample basis of the servicing activities related to the Platform, determining whether FNBO performed those selected activities in compliance with the servicing criteria during the specified period, and performing such other procedures as we considered necessary in the circumstances. Our procedures were limited to selected servicing activities performed by FNBO during the period covered by this report and, accordingly, such samples may not have included servicing activities related to each asset-backed transaction included in the Platform. Further, an examination is not designed to detect noncompliance arising from errors that may have occurred prior to the period specified above that may have affected the balances or amounts calculated or reported by FNBO during the period covered by this report. We believe that our examination provides a reasonable basis for our opinion. Our examination does not provide a legal determination on FNBO's compliance with the servicing criteria. In our opinion, management's assertion that FNBO complied with the aforementioned applicable servicing criteria as of and for the year ended December 31, 2008 for the Platform is fairly stated, in all material respects. /s/ Deloitte & Touche LLP Omaha, Nebraska March 27, 2009 EX-34.2 8 c50353exv34w2.txt EX-34.2 EXHIBIT 34.2 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Shareholder First National Credit Card Center, Inc. We have examined management's assertion, included in the accompanying Management's Report on Assessment of Compliance with SEC Regulation AB Servicing Criteria, that First National Credit Card Center, Inc. (FNCCC), which is a wholly-owned subsidiary of First National Bank of Omaha (FNBO), complied with the servicing criteria set forth in Item 1122(d) of the Securities and Exchange Commission's Regulation AB for asset backed securities transactions involving credit card receivables conducted by First National Master Note Trust (the "Platform") as of and for the year ended December 31, 2008, excluding criteria 1122(d)(1)(iii), 1122(d)(2)(iii), 1122(d)(2)(vi), 112(d)(3)(iii), 1122(d)(3)(iv) and 1122(d)(4)(x), which management has determined are not applicable to the activities performed by FNCCC with respect to the Platform. Management is responsible for FNCCC's compliance with the servicing criteria. Our responsibility is to express an opinion on management's assertion about FNCCC's compliance with the servicing criteria based on our examination. Our examination was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants, as adopted by the Public Company Accounting Oversight Board (United States), and, accordingly, included examining, on a test basis, evidence about FNCCC's compliance with the applicable servicing criteria, including tests on a sample basis of the servicing activities related to the Platform, determining whether FNCCC performed those selected activities in compliance with the servicing criteria during the specified period, and performing such other procedures as we considered necessary in the circumstances. Our procedures were limited to selected servicing activities performed by FNCCC during the period covered by this report and, accordingly, such samples may not have included servicing activities related to each asset-backed transaction included in the Platform. Further, an examination is not designed to detect noncompliance arising from errors that may have occurred prior to the period specified above that may have affected the balances or amounts calculated or reported by FNCCC during the period covered by this report. We believe that our examination provides a reasonable basis for our opinion. Our examination does not provide a legal determination on the FNCCC's compliance with the servicing criteria. In our opinion, management's assertion that FNCCC complied with the aforementioned applicable servicing criteria as of and for the year ended December 31, 2008 for the Platform is fairly stated, in all material respects. /s/ Deloitte & Touche LLP Omaha, Nebraska March 27, 2009 EX-34.3 9 c50353exv34w3.txt EX-34.3 EXHIBIT 34.3 [LETTERHEAD OF KPMG LLP] REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors The Bank of New York Mellon BNY Mellon Trust of Delaware The Bank of New York Mellon Trust Company, N.A.: We have examined the compliance of 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") with the servicing criteria set forth in Item 1122(d) of the Securities and Exchange Commission's Regulation AB for the publicly issued (i.e. transaction-level reporting initially required under the Securities and 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), except for servicing criteria 1122(d)(1)(ii), 1122(d)(1)(iii), 1122(d)(1)(iv), 1122(d)(4)(vi), 1122(d)(4)(viii), 1122(d)(4)(x), 1122(d)(4)(xi), 1122(d)(4)(xii), 1122(d)(4)(xiii) and 1122(d)(4)(xiv), which the Company has determined are not applicable to the activities it performs with respect to the Platform, as of and for the twelve months ended December 31, 2008. With respect to applicable servicing criteria 1122(d)(2)(iii), 1122(d)(2)(vi) and 1122(d)(4)(vii), the Company's Assertion of Compliance with Applicable Servicing Criteria indicates that there were no activities performed as of and for the twelve months ended December 31, 2008 with respect to the Platform, because there were no occurrences of events that would require the Company to perform such activities. Management is responsible for the Company's compliance with those servicing criteria. Our responsibility is to express an opinion on the Company's compliance based on our examination. Our examination was conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States) and, accordingly, included examining, on a test basis, evidence about the Company's compliance with the servicing criteria specified above and performing such other procedures as we considered necessary in the circumstances. Our examination included testing selected asset-backed transactions and securities that comprise the Platform, testing selected servicing activities related to the Platform, and determining whether the Company processed those selected transactions and performed those selected activities in compliance with the servicing criteria. Furthermore, our procedures were limited to the selected transactions and servicing activities performed by the Company during the period covered by this report. Our procedures were not designed to determine whether errors may have occurred either prior to or subsequent to our tests that may have affected the balances or amounts calculated or reported by the Company during the period covered by this report for the selected transactions or any other transactions. We believe that our examination provides a reasonable basis for our opinion. Our examination does not provide a legal determination on the Company's compliance with the servicing criteria. Our examination disclosed material noncompliance with the following servicing criterion applicable to the Company as of and for the twelve months ended December 31, 2008. For servicing criterion 1122(d)(2)(i), certain payments on pool assets were not deposited to the appropriate custodial bank accounts as required by the related transaction agreements. In our opinion, except for the material noncompliance described above, the Company complied, in all material respects, with the aforementioned servicing criteria as of and for the twelve months ended December 31, 2008. We do not express an opinion or any form of assurance on the last two paragraphs of Schedule A to management's Assertion of Compliance with Applicable Servicing Criteria. (Signed) KPMG LLP Chicago, Illinois February 27, 2009 EX-35.1 10 c50353exv35w1.txt EX-35.1 EXHIBIT 35.1 SERVICER COMPLIANCE STATEMENT PURSUANT TO ITEM 1123 OF REGULATION AB FIRST NATIONAL BANK OF OMAHA Date: March 27, 2009 The undersigned, a duly authorized officer of First National Bank of Omaha (the "Servicer"), pursuant to Item 1123 of Regulation AB, Section 3.05(a) of the Second Amended and Restated Pooling and Servicing Agreement dated as of October 24, 2002, among First National Funding LLC, as Transferor, First National Bank of Omaha, as Servicer, and The Bank of New York Trust Company, N.A., as successor trustee to The Bank of New York, as Trustee, as amended (the "Pooling and Servicing Agreement")(1) and Section 3.05(a) of the Transfer and Servicing Agreement, dated as of October 24, 2002, among First National Funding LLC, as Transferor, First National Bank of Omaha, as Servicer, and First National Master Note Trust, as Issuer, as amended (the "Transfer and Servicing Agreement"), does hereby certify that: 1. A review of the activities of the Servicer from January 1, 2008 through December 31, 2008 (the "Reporting Period") and of its performance under the Pooling and Servicing Agreement and the Transfer and Servicing Agreement has been made under my supervision; and 2. To the best of my knowledge, based on my review, the Servicer has fulfilled all of its obligations under the Pooling and Servicing Agreement and the Transfer and Servicing Agreement, in all material respects throughout the Reporting Period. - ---------- (1) On December 18, 2008 (the "Certificate Trust Termination Date"), the Transferor exercised its option to terminate First Bankcard Master Credit Card Trust and the Pooling and Servicing Agreement. On and after the Certificate Trust Termination Date, the Receivables are serviced by the Servicer as provided in the Transfer and Servicing Agreement. IN WITNESS WHEREOF, I have signed this Servicer Compliance Statement the day and year first written above. FIRST NATIONAL BANK OF OMAHA, as Servicer By /s/ Timothy D. Hart ------------------------------------- Timothy D. Hart Senior Vice President EX-35.2 11 c50353exv35w2.txt EX-35.2 EXHIBIT 35.2 SERVICER COMPLIANCE STATEMENT PURSUANT TO ITEM 1123 OF REGULATION AB FIRST NATIONAL CREDIT CARD CENTER, INC. Date: March 27, 2009 The undersigned, a duly authorized officer of First National Bank Credit Card Center, Inc. ("FNCCC"), pursuant to Item 1123 of Regulation AB, Section 3.05(a) of the Second Amended and Restated Pooling and Servicing Agreement dated as of October 24, 2002, among First National Funding LLC, as Transferor, First National Bank of Omaha, as Servicer, and The Bank of New York Trust Company, N.A., as successor trustee to The Bank of New York, as Trustee, as amended (the "Pooling and Servicing Agreement")(2) and the Transfer and Servicing Agreement, dated as of October 24, 2002, among First National Funding LLC, as Transferor, First National Bank of Omaha, as Servicer, and First National Master Note Trust, as Issuer, as amended (the "Transfer and Servicing Agreement"), does hereby certify that: 1. A review of the activities of FNCCC from January 1, 2008 through December 31, 2008 (the "Reporting Period") and of its performance under the Pooling and Servicing Agreement and the Transfer and Servicing Agreement has been made under my supervision; and 2. To the best of my knowledge, based on my review, FNCCC has fulfilled all of its obligations under the Pooling and Servicing Agreement and the Transfer and Servicing Agreement in all material respects throughout the Reporting Period. - ---------- (2) On December 18, 2008 (the "Certificate Trust Termination Date"), the Transferor exercised its option to terminate First Bankcard Master Credit Card Trust and the Pooling and Servicing Agreement. On and after the Certificate Trust Termination Date, the Receivables are serviced by the Servicer as provided in the Transfer and Servicing Agreement. IN WITNESS WHEREOF, I have signed this Servicer Compliance Statement the day and year first written above. FIRST NATIONAL BANK CREDIT CARD CENTER, INC. By /s/ Stephen F. Eulie ------------------------------------- Stephen F. Eulie President FIRST NATIONAL BANK CREDIT CARD CENTER, INC. By /s/ Patrick J. Burns, Sr. ------------------------------------- Patrick J. Burns, Sr. Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----