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EXHIBIT 5.2
[Letterhead of Morris, James, Hitchens & Williams]
March , 1999
Flagstar Trust
c/o Flagstar Bancorp, Inc.
2600 Telegraph Road
Bloomfield Hills, MI 48302-0953
Re: Flagstar Trust
Ladies and Gentlemen:
We have acted as special Delaware counsel for Flagstar Trust, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
This opinion is being furnished to you at your request.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies
furnished to us of the following:
(a) The Trust Agreement of the Trust, dated as of March , 1999,
between Flagstar Bancorp, Inc., a Michigan Corporation (the "Company"), and the
trustees of the Trust named therein;
(b) The Certificate of Trust of the Trust, as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
March 25, 1999 (the "Certificate");
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a prospectus (the "Prospectus") relating to, among other things,
% Cumulative Trust Preferred Securities (Liquidation Amount $25.00 per
Preferred Security) of the Trust representing preferred undivided beneficial
interests in the assets
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March , 1999
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of the Trust (each, a "Preferred Security", and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about March
, 1999;
(d) A form of Amended and Restated Trust Agreement, to be entered into
among the Company, as Depositor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust (the "Agreement"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated March , 1999,
obtained from the Secretary of State.
Unless otherwise defined herein, all capitalized terms used in this
opinion letter shall have the respective meanings provided in the Agreement,
except that reference herein to any document shall mean such document as in
effect on the date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, (iii) the genuineness of all signatures, and (iv) such documents
submitted to us in final or execution form have not been and will not be altered
or amended in any respect material to our opinions as expressed in this letter
and conform in all material respects to the final, executed originals of such
documents.
For purposes of this opinion letter, we have assumed (i) that the
Agreement constitutes the entire agreement among the parties thereto with
respect to the creation, operation, and termination of the Trust, and that the
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) that there are no proceedings, pending or contemplated, for the
merger, consolidation, liquidation, dissolution or termination of the Trust,
(iii) except to the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid existence in
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good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, formation or organization, (iv) the
legal capacity of each natural person who is a party to the documents examined
by us, (v) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (vi) that each of the parties to the documents examined
by us has duly authorized, executed and delivered such documents, (vii) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Securities Holders") of an appropriate certificate
for such Preferred Security, and the payment for the Preferred Security acquired
by it, in accordance with the Agreement and the Registration Statement, and
(viii) that the Preferred Securities are issued to the Preferred Securities
Holders in accordance with the Agreement and the Registration Statement. We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
The opinions in this letter are limited to the laws of the State of
Delaware (excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other jurisdiction,
including the federal laws of the United States of America and rules and
regulations relating thereto.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq).
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Securities Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Securities
Holders may be obligated to make payments as provided in the Agreement.
We consent to the filing of this opinion letter with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, 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
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amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion letter may not be furnished or quoted to, or relied upon by, any other
Person for any purpose.
Very truly yours,
RLS:fg