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EXHIBIT 5.1
Jenkens & Gilchrist
A PROFESSIONAL CORPORATION
1445 ROSS AVENUE
SUITE 3200 AUSTIN, TEXAS
DALLAS, TEXAS 75202 (512) 499-3800
CHICAGO, ILLINOIS
(214) 855-4500 (312) 425-3900
TELECOPIER (214) 855-4300 HOUSTON, TEXAS
(713) 951-3300
www.jenkens.com LOS ANGELES, CALIFORNIA
(310) 820-8800
NEW YORK, NEW YORK
(212) 704-6000
SAN ANTONIO, TEXAS
(210) 246-5000
WASHINGTON, D.C.
(202) 326-1500
February 9, 2001
The Board of Directors
Baylake Corp.
217 North Fourth Avenue
Sturgeon Bay, Wisconsin 54235
Re: Baylake Corp.
Baylake Capital Trust I
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Baylake Corp., a Wisconsin corporation
(the "Company") and Depositor of Baylake Capital Trust I, a Delaware statutory
business trust (the "Trust"), in connection with the preparation of a
Registration Statement on Form S-3 filed by the Company and the Trust with the
Securities and Exchange Commission on October 30, 2000, as amended on January
25, 2001, February 5, 2001 and February 9, 2001 (as amended, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
relating to (i) the proposed issuance by the Trust of up to $16,100,000
aggregate Liquidation Amount of the Trust's ___% Cumulative Trust Preferred
Securities due March 31, 2031 (the "Preferred Securities") registered under the
Securities Act; (ii) the Company's ___% Subordinated Debentures to be issued by
the Company to the Trust (the "Debentures") registered under the Securities
Act; and (iii) the Company's guarantee (the "Guarantee"), which guarantees the
payment of distributions and payments on liquidation or redemption of the
Preferred Securities as described therein. The Preferred Securities are
issuable under an Amended and Restated Trust Agreement (the "Trust Agreement")
to be entered into between the Company, as Depositor, Wilmington Trust Company,
a Delaware trust company, as Delaware Trustee and as Property Trustee, and
Thomas L. Herlache, an individual, Steven D. Jennerjohn, an individual, and
John A. Hauser, an individual, each an Administrative Trustee; the Debentures
are issuable under an indenture (the
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Baylake Corp.
February 9, 2001
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"Indenture") to be entered into between the Company and Wilmington Trust
Company, as Trustee; and the Guarantee relates to the Guarantee Agreement (the
"Guarantee Agreement") to be entered into between the Company and Wilmington
Trust Company, as Guarantee Trustee. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Trust
Agreement, the Indenture and the Guarantee Agreement, as applicable.
In connection with our rendering the opinions expressed herein, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of: (i) the certificate of trust filed by the Trust with the
Secretary of State of the State of Delaware on October 25, 2000; (ii) the form
of the Trust Agreement; (iii) the form of the Preferred Securities; (iv) the
form of the Guarantee Agreement; (v) the form of the Debentures; (vi) the form
of the Indenture, in each case in the form filed as an exhibit to the
Registration Statement; and (vii) the Registration Statement. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents, certificates and records and have
reviewed such questions of law as we have considered necessary and appropriate
for the purposes of our opinions set forth below.
In rendering our opinions, we have assumed, without investigation, the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company and the
Trust, that such parties had the requisite power and authority (corporate or
otherwise) to execute, deliver and perform such agreements or instruments, that
such agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. In addition, we have assumed that the Trust Agreement, the
Preferred Securities, the Guarantee, the Debentures and the Indenture, when
executed, will be executed in substantially the form reviewed by us. We have
also assumed without verification that, with respect to the minutes of any
meetings of the Board of Directors or any committees thereof of the Company that
we have examined, due notice of the meetings was given or duly waived, the
minutes accurately and completely reflect all actions taken at the meetings and
a quorum was present and acting throughout the meetings. As to questions of fact
material to our opinions, we have relied upon certificates of officers of the
Company and the Trust and of public officials.
Based on the foregoing, we are of the opinion that:
(1) The issuance of the Debentures has been duly authorized by all
requisite corporate action and, when executed and authenticated as specified in
the Indenture and delivered and paid for in the manner described in the
Registration Statement, the
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Baylake Corp.
February 9, 2001
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Debentures will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
(2) The Guarantee has been duly authorized by all requisite corporate
action and, when duly executed as specified in the Guarantee Agreement and
delivered in the manner described in the Registration Statement, the Guarantee
will constitute the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
The opinions set forth above are subject to the following qualifications
and exceptions:
The enforceability of the operative documents, or any provision thereof,
may be limited by and/or subject to bankruptcy (including, without limitation,
executory contracts provisions), insolvency, reorganization, receivership,
moratorium, fraudulent conveyance or transfer, or other laws affecting the
rights and remedies of creditors generally, or similar federal or state laws, by
general equitable principles, by rules of law governing specific performance,
appointment of receivers, injunctive relief and other equitable remedies, and by
remedies or the exercise of certain rights including, without limitation,
commercial reasonableness or conscionability, reasonable notice of disposition,
specific performance, or enforcement, limitation on sale or encumbrance
provisions, waivers or eliminations of rights such as statutory rights of
redemption, or of jury trial, separation or aggregation of property at
foreclosure or enforced sale, application of sale or judgment proceeds, and
multiplicity, inconsistency, waiver or omission or delay in the enforcement of
remedies.
With respect to matter of Delaware trust law, we are relying upon the
opinion of Richards, Layton & Finger, P.A., Wilmington, Delaware, special
counsel to the Company and the Trust.
Although we have acted as counsel to the Company in connection with certain
other matters, our engagement is limited to certain matters about which we have
been consulted. Consequently, there may exist matters of a factual or legal
nature involving the Company and its subsidiaries in connection with which we
have not been consulted and have not represented the Company and its
subsidiaries.
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Baylake Corp.
February 9, 2001
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The opinions expressed above concern only the effect of laws as now in
effect and are rendered as of the date hereof. We undertake no, and hereby
disclaim any, obligation to revise or supplement this opinion should such laws
be changed by legislative action, judicial decision, or otherwise after the date
of this opinion, or if we become aware of any facts that might change the
opinions expressed above after the date of this letter.
This opinion letter is limited to the matters stated herein and no opinions
may be implied or inferred beyond the matters expressly stated herein.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the caption
"Legal Matters" contained in the Prospectus included therein.
Very truly yours,
/s/ Jenkens & Gilchrist, a Professional Corporation