1
Exhibit 5
May __, 2000
Metropolitan Capital Trust II
c/o Metropolitan Financial Corp.
6001 Landerhaven Drive
Mayfield Hts., OH 44124
Re: Metropolitan Financial Corp. and
Metropolitan Capital Trust II- offering of trust preferred securities
---------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Metropolitan Financial
Corp., an Ohio corporation (the "Company"), and Metropolitan Capital Trust II, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated February 23, 1999, as
filed with the office of the Secretary of State of the State of Delaware (the
"Secretary of State") on February 23, 1999;
(b) The Trust Agreement, dated as of February 23, 1999, as amended and
restated by the Amended and Restated Trust Agreement, dated as of May 14, 1999
between the Company, and the trustees of the Trust named therein, (as amended
and restated, the "Trust Agreement");
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred undivided beneficial interests in the assets of the
2
Metropolitan Capital Trust II
May __, 2000
Page 2
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), filed by the Company and the Trust with the Securities and
Exchange Commission on May __, 2000; and
(d) A Certificate of Good Standing for the Trust, dated May __, 2000,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (d) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (d) 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, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate of Trust are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due creation or the
due organization or due formation, as the case may be, and valid existence in
good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) 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, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security has been issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for such Preferred Security acquired by it, in
accordance with the Trust Agreement and the registration statement on Form S-1
previously filed for the Preferred Securities, and (vii) that the Preferred
Securities were issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and such registration statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware, and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws
3
Metropolitan Capital Trust II
May __, 2000
Page 3
(excluding securities laws) and rules, regulations and orders thereunder which
are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created 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 issued to the Preferred Security Holders
have been duly authorized by the Trust Agreement and were duly and validly
issued and, subject to the qualifications set forth in paragraph 3 below, are
fully paid and nonassessable undivided beneficial interests in the assets of the
Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
are 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 Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. 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 amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
EAM/TLM