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EXHIBIT 5.1
September 11, 2000
Greater Bay Bancorp
2860 West Bayshore Road
Palo Alto, California 94303
Re: Registration Statement on Form S-4
GBB Capital IV
Ladies and Gentlemen:
I am the General Counsel of Greater Bay Bancorp, a California corporation
("GBB"), and, in such capacity, I have acted as counsel of GBB and GBB Capital
IV, a statutory business trust formed at the direction of GBB under the laws of
the State of Delaware ("GBB Capital IV"), in connection with the preparation and
filing under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-4 to be filed with the Securities and Exchange
Commission on or about September 11, 2000 (the "Registration Statement"). The
Registration Statement relates to (i) the issuance by GBB Capital IV of up to
and including $41.0 million aggregate Liquidation Amount of 10.75% Capital
Securities, Series B (the "Exchange Capital Securities"), in exchange for up to
and including $41.0 million aggregate Liquidation Amount of its outstanding
10.75% Capital Securities, Series A (the "Original Capital Securities"); (ii)
the issuance by GBB to GBB Capital IV, in an aggregate principal amount
corresponding to the aggregate Liquidation Amount of the Exchange Capital
Securities, of GBB's 10.75% Junior Subordinated Debentures due June 1, 2030,
Series B (the "Exchange Junior Subordinated Debentures"), in exchange for a
comparable aggregate principal amount of GBB's outstanding 10.75% Junior
Subordinated Debentures due June 1, 2030, Series A (the "Original Junior
Subordinated Debentures"); and (iii) the Series B Capital Securities Guarantee
by GBB (the "Exchange Guarantee") in connection with the Exchange Capital
Securities, and as further described in the Registration Statement (the
"Offering").
For the purpose of rendering the opinions set forth herein, I have been
furnished with and examined only the following documents:
1. The Articles of Incorporation of GBB, as amended to date;
2. The Bylaws of GBB, as amended to date;
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3. The Registration Statement;
4. The Indenture between GBB and Wilmington Trust Company ("WTC"), dated
as of May 19, 2000 (the "Indenture");
5. The form of Exchange Junior Subordinated Debenture;
6. The Registration Rights Agreement among GBB, GBB Capital IV, and
Sandler O'Neill & Partners, L.P., dated as of May 16, 2000;
7. The Amended and Restated Trust Agreement of GBB Capital IV, among GBB,
WTC and the Administrative Trustees named therein dated as of May 19, 2000;
8. The form of Exchange Capital Security Certificate;
9. The Exchange Guarantee; and
10. Resolutions adopted at a meeting of the Board of Directors of GBB held
on April 25, 2000 and by unanimous written consent, dated May 16, 2000, of the
Pricing Committee of GBB pertaining to the Offering.
With respect to all of the foregoing documents, I have assumed, without
investigation, the genuineness of all signatures, the authenticity of all
documents submitted to me as originals and the conformity to originals of all
documents submitted to me as certified or reproduced copies. I also have
obtained from the officers of GBB such advice as to such factual matters as I
consider necessary for the purpose of this opinion, and insofar as this opinion
is based on such matters of fact, I have relied on such advice without
investigation. I also have obtained and relied upon certificates and other
communications from governmental authorities as to matters concerning the due
incorporation, valid existence and good standing of GBB, and my opinion with
respect to such matters is based solely upon such certificates.
Based upon and subject to the foregoing, I am of the opinion that:
(1) Following effectiveness of the Registration Statement and when executed
and authenticated in the manner provided for in the Indenture and delivered
against surrender and cancellation of a like aggregate principal amount of
Original Junior Subordinated Debentures as contemplated in the Registration
Rights Agreement, the Exchange Junior Subordinated Debentures will constitute
binding obligations of GBB enforceable in accordance with their terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent transfers
and preferential transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity including, without
limitation, requirements of good faith, fair dealing, conscionability and
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materiality (regardless of whether the Exchange Junior Subordinated Debentures
are considered in a proceeding in equity or at law); and
(2) Following effectiveness of the Registration Statement and when executed
by GBB and WTC, as Guarantee Trustee, and delivered as contemplated in the
Registration Rights Agreement, the Exchange Guarantee will constitute a binding
obligation of GBB enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent transfers
and preferential transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity including, without
limitation, requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether the Exchange Guarantee is considered in a
proceeding in equity or at law).
The foregoing opinions are also subject to the following comments and
qualifications:
(a) The enforceability of certain provisions of the Exchange Junior
Subordinated Debentures and the Exchange Guarantee may be limited by laws
rendering unenforceable the release of a party from, or the indemnification of a
party against, liability for its own wrongful or negligent acts under certain
circumstances, and indemnification contrary to Federal or state securities laws
and the public policy underlying such laws.
(b) The enforceability of provisions in the Exchange Junior Subordinated
Debentures and the Exchange Guarantee, to the effect that the terms may not be
waived or modified except in writing, may be limited under certain
circumstances.
(c) I advise you that, under certain circumstances, a guaranty executed by
a corporate shareholder of a corporate borrower may not be enforced as an
obligation separate from the obligation guaranteed if it is determined that the
borrower is merely an alter ego or nominee of the guarantor and that the "true"
borrower is the guarantor. If the guarantor is deemed to be liable as a primary
obligor, it is likely that the guarantor also will be entitled to the rights and
defenses otherwise available to a primary obligor.
(d) I also advise you of California statutory provisions and case law,
including defenses set forth in Union Bank v. Gradsky, 265 Cal.App. 2d 40 (1968)
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and defenses arising from California Civil Code Section 2787 et seq., relating
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to suretyship defenses or rights of redemption, to the effect that, in certain
circumstances, a surety may be exonerated if the creditor materially alters the
original obligation of the principal without the consent of the guarantor,
elects remedies for default which impairs the subrogation rights of the
guarantor against the principal, or otherwise takes any action without notifying
the guarantor which materially prejudices the guarantor. However, there is also
authority to the effect that a guarantor may validly waive such rights, if such
waivers are expressly set forth in the guaranty. While I believe that a
California court should hold that the explicit language contained in the
Guarantee waiving such rights should be
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enforceable, I express no opinion with respect to the effect of (i) any
modification to or amendment of the obligations of GBB Capital IV which
materially increases such obligations;(ii) any election of remedies by GBB
Capital IV following the occurrence of an event of default; or (iii) any other
action by GBB Capital IV which materially prejudices any guarantor, if, in any
such instance, such modification, election or action occurs without notice to
any guarantor and without granting to any guarantor an opportunity to cure any
default by GBB Capital IV.
My opinions set forth herein relate solely to the Exchange Junior
Subordinated Debentures and the Exchange Guarantee and not to any separate
agreement or undertaking which is referenced therein or the performance of which
is a condition to the enforceability thereof. My opinions set forth herein are
limited to those matters expressly set forth herein, and no opinion may be
implied or inferred beyond the matters expressly stated herein. I hereby
disclaim any obligation to notify any person or entity after the date hereof if
any change in fact or law should change my opinion with respect to any matter
set forth in this letter. This opinion is limited to the current laws of the
State of New York, the State of California, to present judicial interpretations
thereof and to facts as they presently exist. In rendering this opinion, I have
no obligation to revise or supplement it should the current laws of the State of
New York or the State of California be changed by legislative action, judicial
decision or otherwise. Capitalized terms used herein have the meanings ascribed
to such terms in the Registration Statement.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the prospectus which is part of the Registration Statement.
Very truly yours,
/s/ Linda M. Iannone
Linda M. Iannone
Senior Vice President and General Counsel
