Exhibit 4.4


 


FORM OF


 


RISK RETENTION AGREEMENT


 


FORM OF
RISK RETENTION AGREEMENT, dated as of [•] [•], 20[•] (this “Agreement”), by and among FIRST NATIONAL
BANK OF OMAHA, a national banking association (“FNBO”), FIRST NATIONAL FUNDING LLC, a Nebraska limited liability
company (the “Transferor”) and FIRST NATIONAL MASTER NOTE TRUST, a Delaware statutory trust (the “Issuer”).


 


WITNESSETH:


 


WHEREAS, FNBO and the Transferor
have entered into a Second Amended and Restated Receivables Purchase Agreement, dated as of September 23, 2016 (as amended, restated,
supplemented or otherwise modified, the “Receivables Purchase Agreement”) and as acknowledged and accepted by U.S. Bank Trust
Company, National Association, as Indenture Trustee (the “Indenture Trustee”), pursuant to which FNBO sells to the Transferor
certain Receivables arising in specified Accounts owned by FNBO;


 


WHEREAS,
the Transferor, FNBO, in its capacity as Servicer (the “Servicer”), and the Issuer have entered into a Second Amended and
Restated Transfer and Servicing Agreement, dated as of September 23, 2016 (as amended, restated, supplemented or otherwise
modified, the “Transfer and Servicing Agreement”) and as acknowledged and accepted by the Indenture Trustee, pursuant to which
the Transferor transfers Receivables to the Issuer and the Issuer has engaged the Servicer to administer the Receivables;


 


WHEREAS,
the Issuer and the Indenture Trustee have entered into a Second Amended and Restated Master Indenture, dated as of September 23,
2016 (as amended, restated, supplemented or otherwise modified, the “Master Indenture”), and as acknowledged and accepted
by the Transferor and the Servicer, pursuant to which the Issuer has issued and may from time to time issue notes; and


 


WHEREAS,
the Transferor intends to cause the Issuer to issue Class A Asset Backed Notes, Series 20[•]-[•] (the “Class A
Notes”) pursuant to the Master Indenture and a Series 20[•]-[•] Indenture Supplement, dated as of [•][•],
20[•] (as amended, restated, supplemented or otherwise modified, the “Indenture Supplement”), between the Issuer
and the Indenture Trustee and as acknowledged and accepted by the Transferor and the Servicer.


 


NOW, THEREFORE, it is hereby
agreed by and between FNBO, the Transferor and the Issuer, as follows:


 






     


     


    

 


1.            Definitions.
All capitalized terms used but not defined herein shall have the meanings given to such terms in Appendix A to the Master Indenture or
the Indenture Supplement, as applicable. The following capitalized terms shall have the following meanings:


 


“AIFM Regulation”
means either Directive 2011/61/EU of the European Parliament and of the Council of June 8, 2011 on Alternative Investment Fund
Managers, as amended, and Articles 50-56 of the Alternative Investment Managers Fund Regulation ((EU No. 231/2013) or the same as
implemented in the laws of the UK by virtue of the European Union (Withdrawal) Act 2018 or otherwise (as applicable).


 


“Applicable Investor”
means any of (a) an EEA or UK (as applicable) credit institution or investment firm, as defined and for the purposes of the CRR,
including any consolidated group affiliate thereof, (b) an insurance undertaking by an EEA or UK (as applicable) insurer or a reinsurance
undertaking by an EEA or UK (as applicable) reinsurer to which Solvency II applies, (c) an EEA or UK (as applicable) alternative
investment fund manager (“AIFM”) as defined in the AIFM Regulation that manages or markets alternative investment funds in
the EU or UK (as applicable), (d)(i) an undertaking for collective investment in transfer securities (“UCITS”) EEA or
UK ( as applicable) management company by an EEA or UK (as applicable) management company to which the UCITS Directive applies or (ii) an
internally managed UCITS, which is an EEA or UK (as applicable) investment company that is authorized in accordance with the UCITS Directive
and has not designated such a management company for its management and (e) with certain exceptions, an EEA or UK (as applicable)
institution for occupational retirement provision (an “IORP”) falling within the scope of the IORP Directive, or an investment
manager or an authorized entity appointed by such an institution for occupational retirement provision as provided in the IORP Directive.


 


“CRR” means
either Regulation (EU) No. 575/2013 of the European Parliament and of the Council, as amended and as supplemented by EU secondary
legislation, including the CRR Delegated Regulation or the same as implemented in the laws of the UK by virtue of the European Union (Withdrawal)
Act 2018 or otherwise (as applicable).


 


“CRR Delegated Regulation”
means either Commission Delegated Regulation (EU) No. 625/2014 of the European Parliament and of the Council or the same as implemented
in the laws of the UK by virtue of the European Union (Withdrawal) Act 2018 or otherwise (as applicable).


 


“EEA” means
the European Economic Area.


 


“EU” means
the European Union.


 


“EU Due Diligence
and Risk Retention Rules” means, with respect to this Agreement, Articles 5 and 6 of EU Securitization Regulation, together
with any relevant regulatory technical standards adopted by the European Commission and any guidance published by the European Union supervisory
authorities with respect thereto or to precedent legislation (together, “EU delegated regulations and guidance’), each as
in effect and applicable on the date the Class A Notes are issued.


 


“EU Securitization
Regulation” means Regulation (EU) 2017/2402 of the European Parliament and of the Council of December 12, 2017.


 


“European Commission”
means the European Commission, an institution of the European Union.


 






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“IORP Directive”
means either Directive (EU) 2016/2341 of the European Parliament and of the Council of December 14, 2016 or the same as implemented
in the laws of the UK by virtue of the European Union (Withdrawal) Act 2018 or otherwise (as applicable).


 


“Solvency II”
means either Directive 2009/138/EC of the European Parliament and of the Council of November 25, 2009, as amended or the same
as implemented in the laws of the UK by virtue of the European Union (Withdrawal) Act 2018 or otherwise (as applicable).


 


“UCITS Directive”
means either Directive 2009/65/EC of the European Parliament and of the Council of July 13, 2009, as amended or the same as implemented
in the laws of the UK by virtue of the European Union (Withdrawal) Act 2018 or otherwise (as applicable).


 


“UK” means
the United Kingdom.


 


“UK Due Diligence
and Risk Retention Rules” means, with respect to this Agreement, Articles 5 and 6 of the UK Securitization Regulation, together
with any relevant technical standards adopted by the European Commission prior to January 1, 2021 or by the UK, and any guidance
published by the European Union supervisory authorities published prior to January 1, 2021 (where such guidance is to be interpreted
in light of the United Kingdom’s exit from the EU pursuant to relevant guidance issued by the Financial Conduct Authority (the “FCA”)
or by the FCA with respect thereto or to precedent legislation (together “UK delegated regulations and guidance”), each as
in effect and applicable on the date the Class A Notes are issued.


 


“UK Securitization
Regulation” means Regulation (EU) 2017/2402 as it forms part of UK domestic law under the European Union (Withdrawal) Act of
2018, as amended by the Securitization (Amendment) (EU Exit) Regulations 2019.


 


1.            Representations.
FNBO represents and warrants to the Issuer and the Indenture Trustee (solely for the benefit of the Applicable Investors) that as of the
date hereof:


 


(a)            FNBO
has full corporate power and authority to execute and deliver this Agreement and perform the terms and provisions hereof;


 


(b)           The
execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action, and do not require
any approval or consent of any governmental agency or authority; and


 


(c)            This
Agreement is the valid, binding and enforceable obligation of FNBO, except as the same may be limited by receivership, insolvency, reorganization,
moratorium or other laws relating to the enforcement of creditors’ rights generally or by general equity principles.


 






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2.            Covenants.
With reference to Articles 5 and 6 of each of the EU Securitization Regulation and the UK Securitization Regulation, FNBO hereby confirms,
represents and warrants to and agrees with, and irrevocably and unconditionally undertakes to the Issuer and the Indenture Trustee, solely
for the benefit of each Applicable Investor, on an ongoing basis, so long as any Class A Note remains Outstanding:


 


(a)            FNBO,
as “originator,” within the meaning of Article 2(3)(a) of each of the EU Securitization Regulation and the UK Securitization
Regulation, for the purposes of each of the EU Securitization Regulation and the UK Securitization Regulation, currently retains, and
on an ongoing basis will retain, a material net economic interest that is not less than five percent of the nominal value of the securitized
exposures (measured at origination), in a form that is intended to qualify as an originator’s interest as provided in option (b) of
Article 6(3) of each of the EU Securitization Regulation and the UK Securitization Regulation, by indirectly holding all the
membership interests in the Transferor which in turn holds all or part of the Transferor Interest (the “Retained Interest”);


 


(b)            With
respect to the Retained Interest, FNBO will not change the retention option or the method of calculating its net economic interest in
the securitized exposures while the Class A Notes are outstanding, except under exceptional circumstances in accordance with each
of the EU Securitization Regulation (as supplemented by applicable EU delegated regulations and guidance) and the UK Securitization Regulation
(as supplemented by applicable UK delegated regulations and guidance);


 


(c)            FNBO
will not (and will not permit the Transferor or any of its other affiliates to) allow the Retained Interest to be subject to any credit
risk mitigation, short position or other hedge or to be sold if, as a result, FNBO would not retain a material net economic interest in
an amount that is not less than 5% of the nominal value of the securitized exposures, except to the extent permitted in accordance with
Article 6(1) under each of the EU Securitization Regulation (as supplemented by applicable EU delegated regulations and guidance)
and the UK Securitization Regulation (as supplemented by applicable UK delegated regulations and guidance); and


 


(d)            FNBO
will provide ongoing confirmation of FNBO’s continued compliance with its obligations described in (a) and (c) above in
or concurrently with the delivery of each distribution report of the issuing entity on Form 10-D relating to the Class A Notes;
provided, however, that FNBO makes no commitment or undertaking to comply with any amendment to the EU Due Diligence and Risk Retention
Rules or the UK Due Diligence and Risk Retention Rules that may become effective after the date the Class A Notes are issued.


 


3.            Agreements
of Transferor. Transferor hereby acknowledges the terms and conditions of this Agreement and, further, covenants that it will not
allow the Retained Interest to be subject to any credit risk mitigation, short position or other hedge or to be sold other than as directed
by FNBO and as permitted in accordance with the terms of this Agreement.


 






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4.            Limitation
of Liability.


 


(a)            It
is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered by Wilmington Trust Company
not individually or personally but solely as Owner Trustee under the Second Amended and Restated Trust Agreement, dated as of September 23,
2016 (the “Trust Agreement”), between the Transferor and Wilmington Trust Company, and in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is
made and intended not as a personal representation, undertaking or agreement by Wilmington Trust Company but is made and intended for
the purpose of binding only the Issuer, (iii) nothing herein contained will be construed as creating any liability on the Wilmington
Trust Company individually or personally, to perform any covenant of the Issuer either expressed or implied herein, all such liability,
if any, being expressly waived by the parties to this Agreement and by any person claiming by, through or under them and (iv) under
no circumstances will Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement
or any related documents.


 


(b)            NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY OTHER DOCUMENT OR AGREEMENT RELATING TO THE CLASS A NOTES, IN NO EVENT SHALL
FNBO OR THE TRANSFEROR BE LIABLE TO THE INDENTURE TRUSTEE, THE ISSUER, THE OWNER TRUSTEE, ANY APPLICABLE INVESTOR OR ANY OTHER NOTEHOLDER,
OR RESPONSIBLE FOR, LOSSES IN RESPECT OF THE CLASS A NOTES OR ANY INTEREST THEREIN, INCLUDING, WITHOUT LIMITATION ANY LOSS OF
VALUE OF ANY CLASS A NOTE OR ANY INTEREST THEREIN, DUE TO THE FAILURE OF THE RETAINED INTEREST AND COMPLIANCE BY FNBO AND THE TRANSFEROR
WITH THE TERMS OF THIS AGREEMENT TO SATISFY THE EU DUE DILIGENCE AND RISK RETENTION RULES, THE UK DUE DILGIENCE AND RISK RETENTION
RULES OR OTHER SIMILAR OR EQUIVALENT PROVISIONS NOW OR HEREAFTER IN EFFECT.


 


5.            Miscellaneous.


 


(a)            THIS
AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEBRASKA WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


 


(b)            EACH
OF THE PARTIES HERETO (AND EACH APPLICABLE INVESTOR BY ACCEPTING THE BENEFITS HEREOF) HEREBY AGREES TO THE EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF NEBRASKA. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.


 






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(c)            All
notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including telecopies, email,
telegraphic, telex or cable communication) and mailed, emailed (with “PDF” attachment in the case of any signed notice or
communication), telecopied with receipt confirmed by telephone, telegraphed, telexed, cabled or delivered, as to each party hereto, at
its address set forth below or at such other address as shall be designated by such party in a written notice to the other party hereto.
All such notices and communications shall, when mailed, emailed, telecopied, telegraphed, telexed or cabled, be effective when deposited
in the mail, emailed, telecopied, delivered to the telegraph company, confirmed by telex answer back or delivered to the cable company,
respectively.


 


	If to FNBO:	First National Bank of Omaha
	 	1620 Dodge Street
	 	Stop Code 3271
	 	Omaha, NE 68197-3271
	 	Attention: Treasurer
	 	 
	If to the Transferor:	First National Funding LLC
	 	1620 Dodge Street
	 	Stop Code 3271
	 	Omaha, NE 68197-3271
	 	Attention: President
	 	 
	If to the Issuer:	c/o Wilmington Trust Company
	 	Rodney Square North
	 	1100 North Market Street
	 	Wilmington, DE 19890
	 	Attention: Corporate Trust Administration



 


(d)            Neither
this Agreement nor any term or provision hereof may be changed, waived, discharged or terminated except by a writing signed by a duly
authorized officer of the party against whom enforcement of such change, waiver, discharge or termination is sought to be enforced.


 


(e)            Any
part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.


 


Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable in any particular jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.


 


To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof.


 






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(f)            This
Agreement constitutes the entire agreement and understanding of the parties with respect to the matters addressed herein, and this Agreement
supersedes any prior agreements and/or understandings, written or oral, with respect to such matters.


 


(g)           The
Issuer is a party to this Agreement solely for the purposes of obtaining the benefit of the representations, warranties and covenants
contained therein and under no circumstances shall it be deemed to have undertaken any obligations thereunder or by virtue of its entry
into this Agreement.


 


(h)           The
Indenture Trustee is a third-party beneficiary of this Agreement solely for the purpose of obtaining the benefit of the representations,
warranties and covenants contained herein and under no circumstances shall it be deemed to have undertaken any obligations hereunder.
For the avoidance of doubt, in no event shall the Indenture Trustee have any responsibility to calculate, monitor compliance with or be
charged with knowledge of the EU Due Diligence and Risk Retention Rules or the UK Due Diligence and Risk Retention Rules, nor
shall it be liable to any Applicable Investor, Noteholder or any party whatsoever for any violation of such EU Due Diligence and
Risk Retention Rules or the UK Due Diligence and Risk Retention Rules or such similar provisions now or hereafter in effect
or for any breach of any term of this Agreement, nor shall it have any obligation to provide or otherwise make available information or
documents required by the EU Due Diligence and Risk Retention Rules or the UK Due Diligence and Risk Retention Rules or any
other rules or regulations regarding risk retention.


 






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FNBO, the Transferor and the
Issuer have caused this Agreement to be duly executed by their respective officers as of the date first above written.


 


	 	FIRST NATIONAL BANK OF OMAHA
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	FIRST NATIONAL FUNDING LLC
	 	 
	 	By:	First National Funding Corporation, 
	 	 	its Managing Member
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	FIRST NATIONAL MASTER NOTE TRUST
	 	 
	 	By:	Wilmington Trust Company, not in its individual capacity, but
solely as Owner Trustee
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 



 






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