April 7, 2000
BVBC Capital Trust I
c/o Blue Valley Ban Corp
11935 Riley
Overland Park, Kansas 66225
Re: BVBC Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel to BVBC Capital Trust I, a
Delaware statutory business trust (the "Trust"), and Blue Valley Ban Corp, a
Kansas corporation ("Blue Valley"), in connection with certain matters relating
to (i) the formation of the Trust and (ii) the proposed issuance by the Trust of
Preferred Securities to beneficial owners pursuant to and as described in the
Registration Statement (and the Prospectus forming a part thereof) on Form S-1
filed with the Securities and Exchange Commission on April 7, 2000 (the
"Registration Statement") relating to the Preferred Securities. Capitalized
terms used herein and not otherwise herein defined are used as defined in the
Amended and Restated Trust Agreement of the Trust in the form attached as an
exhibit to the Registration Statement (the "Governing Instrument").
In rendering this opinion, we have examined and relied upon copies
of the following documents in the forms provided to us: the Certificate of Trust
of the Trust as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on March 30, 2000 (the "Certificate of Trust"); a
Trust Agreement of the Trust dated as of March 30, 2000 (the "Original Governing
Instrument"); the Governing Instrument; the Subordinated Indenture to be entered
into between Blue Valley and Wilmington Trust Company, as Trustee; the Preferred
Securities Guarantee Agreement to be entered into between Blue Valley and
Wilmington Trust Company, as Trustee; the form of Underwriting Agreement
relating to the Preferred Securities among Blue Valley, the Trust and Stifel,
Nicolaus & Company (the "Underwriting Agreement"); the Registration Statement;
and a certification of good standing of the Trust obtained as of a recent date
from the State Office. In such examinations, we have assumed the genuineness of
all signatures, the conformity to original documents of all documents submitted
to us as drafts or copies or forms of documents to be executed and the legal
capacity of natural persons to complete the execution of documents. We have
further assumed for purposes of this opinion: (i)
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April 7, 2000
Page 2
the due formation or organization, valid existence and good standing of each
entity (other than the Trust) that is a party to any of the documents reviewed
by us under the laws of the jurisdiction of its respective formation or
organization; (ii) the due authorization, execution and delivery by, or on
behalf of, each of the parties thereto of the above-referenced documents
(including, without limitation, the due authorization, execution and delivery of
the Governing Instrument and the Underwriting Agreement prior to the first
issuance of Preferred Securities); (iii) that no event has occurred subsequent
to the filing of the Certificate of Trust, or will occur prior to the first
issuance of Preferred Securities, that would cause a dissolution or liquidation
of the Trust under the Original Governing Instrument or the Governing
Instrument, as applicable; (iv) that the activities of the Trust have been and
will be conducted in accordance with the Original Governing Instrument or the
Governing Instrument, as applicable, and the Delaware Business Trust Act, 12
Del. C. ss.ss. 3801 et seq. (the "Delaware Act"); (v) that payment of the
required consideration for the Preferred Securities has, or prior to the first
issuance of Preferred Securities will have, been made in accordance with the
terms and conditions of the Governing Instrument, the Registration Statement and
the Underwriting Agreement and that the Preferred Securities are otherwise
issued and sold to the Preferred Security Holders in accordance with the terms,
conditions, requirements and procedures set forth in the Governing Instrument,
the Registration Statement and the Underwriting Agreement; and (vi) that the
documents examined by us are in full force and effect, express the entire
understanding of the parties thereto with respect to the subject matter thereof
and have not been amended, supplemented or otherwise modified, except as herein
referenced. We have not reviewed any documents other than those identified above
in connection with this opinion, and we have assumed that there are no other
documents that are contrary to or inconsistent with the opinions expressed
herein. Further, we express no opinion with respect to, and assume no
responsibility for the contents of, the Registration Statement or any other
offering material relating to the Preferred Securities. No opinion is expressed
herein with respect to the requirements of, or compliance with, federal or state
securities or blue sky laws. As to any fact material to our opinion, other than
those assumed, we have relied without independent investigation on the
above-referenced documents and on the accuracy, as of the date hereof, of the
matters therein contained.
Based on and subject to the foregoing, and limited in all respects
to matters of Delaware law, it is our opinion that:
1. The Trust is a duly formed and validly existing business trust in
good standing under the laws of the State of Delaware.
2. Upon issuance, the Preferred Securities will constitute validly
issued and, subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable beneficial interests in the assets of the Trust.
3, Under the Delaware Act and the terms of the Governing Instrument,
each Preferred Security Holder of the Trust, in such capacity, will be entitled
to the same limitation of personal liability as that extended to stockholders of
private corporations for profit organized
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April 7, 2000
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under the General Corporation Law of the State of Delaware; provided, however,
we express no opinion with respect to the liability of any Preferred Security
Holder who is, was or may become a named Trustee of the Trust. Notwithstanding
the foregoing, we note that, pursuant to the Governing Instrument, Preferred
Security Holders may be obligated to make payments or provide indemnity or
security under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name and reference to our opinion
under the heading "LEGAL MATTERS" in the Prospectus forming a part thereof. In
giving this consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. This opinion speaks only as of the date hereof and is
based on our understandings and assumptions as to present facts, and on our
review of the above-referenced documents and the application of Delaware law as
the same exist as of the date hereof, and we undertake no obligation to update
or supplement this opinion after the date hereof for the benefit of any person
or entity with respect to any facts or circumstances that may hereafter come to
our attention or any changes in facts or law that may hereafter occur or take
effect. This opinion is intended solely for the benefit of the addressee hereof
in connection with the matters contemplated hereby and may not be relied on by
any other person or entity or for any other purpose without our prior written
consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/ Jonathan I. Lessner
Jonathan I. Lessner