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[Letterhead of Thompson Hine & Flory LLP] EXHIBIT 5.1
May 3, 1999
The Board of Directors
Metropolitan Financial Corp.
6001 Landerhaven Drive
Mayfield Heights, Ohio 44124
Re: Metropolitan Financial Corp.
Registration Statement on Form S-1
File No. 333-72991
Ladies and Gentlemen:
We have acted as counsel to Metropolitan Financial Corp., an Ohio
corporation (the "Corporation"), and Depositor of Metropolitan Capital Trust II,
a Delaware statutory business trust (the "Trust"), in connection with the
preparation of a Registration Statement on Form S-1 (the "Registration
Statement") originally filed by the Corporation and the Trust with the
Securities and Exchange Commission on February 26, 1999, as amended by Amendment
No. 1 to Form S-1 filed on March 17, 1999, Amendment No. 2 to Form S-1 filed on
April 2, 1999, and Amendment No. 3 to Form S-1 filed on May 3, 1999, relating
to:
(i) the proposed issuance by the Trust of $15,000,000 ($17,250,000 if
the over-allotment option is exercised in full) aggregate Liquidation
Amount of the Trust's Cumulative Trust Preferred Securities (the
"Preferred Securities") registered under the Securities Act of 1933, as
amended (the "Securities Act");
(ii) the proposed issuance by the Corporation to the Trust of
$15,000,000 ($17,250,000 if the over-allotment option is exercised in
full) aggregate principal amount of the Corporation's Junior
Subordinated Deferrable Interest Debentures due June 30, 2028 (the
"Junior Subordinated Debentures") registered under the Securities Act;
(iii) the proposed issuance by the Corporation of 300,000 (345,000 if
the over-allotment option is exercised in full) shares of Common Stock
(the "Common Stock") of the Corporation; and
(iv) the Corporation's guarantee (the "Guarantee") with respect to the
Preferred Securities registered under the Securities Act.
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The Board of Directors
Metropolitan Financial Corp.
May 3, 1999
The Preferred Securities are issuable under an Amended and Restated
Trust Agreement (the "Trust Agreement") to be entered into between the
Corporation, as Depositor, Wilmington Trust Company, as Property Trustee, and
the Administrative Trustees named therein; the Junior Subordinated Debentures
are issuable under an Indenture (the "Indenture") to be entered into between the
Corporation and Wilmington Trust Company, as Trustee; and the Guarantee is
issuable under the Preferred Securities Guarantee Agreement (the "Guarantee
Agreement") to be entered into between the Corporation and Wilmington Trust
Company, as Preferred Guarantee Trustee.
In connection with this opinion, 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
February 23, 1999; (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 Junior Subordinated 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 Corporation 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 Agreement, the Junior Subordinated
Debentures and the Indenture, when executed, will be executed in substantially
the form reviewed by us. As to questions of fact material to our opinions, we
have relied upon certificates of officers of the Corporation and the Trust and
of public officials. 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.
Based on the foregoing, we are of the opinion that:
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The Board of Directors
Metropolitan Financial Corp.
May 3, 1999
(1) The Junior Subordinated Debentures have been duly authorized by all
requisite corporate action and, when duly executed and authenticated as
specified in the Indenture and delivered and paid for in the manner described in
the Registration Statement, the Junior Subordinated Debentures will constitute
valid and binding obligations of the Corporation, enforceable in accordance with
their terms.
(2) When issued, the Common Stock which is the subject of the
Registration Statement will be legally issued, fully paid, and non-assessable.
(3) 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 Corporation, enforceable
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 transfer or conveyance, or other laws affecting the
rights and remedies of creditors generally, or similar federal or state laws, by
general equity principles, by rules of law governing specific performance,
appointment of receivers, injunctive relief and other equitable remedies, and by
certain other limitations which may be imposed upon the availability of certain
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.
This opinion is rendered only with respect to the laws of the State of
Ohio, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware. With respect to matters of Delaware
trust law, we are relying upon the opinion of Richards, Layton & Finger, P.A.
Wilmington, Delaware, special counsel to the Corporation and the Trust.
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
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The Board of Directors
Metropolitan Financial Corp.
May 3, 1999
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.
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
"Validity of Securities" contained in the Prospectus included therein. In giving
such consent, we do not admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act.
This opinion may not be used, relied upon or quoted by you for any
other purpose, or by any other person or entity for any purpose, without our
prior written consent.
Very truly yours,
/s/ Thompson Hine & Flory LLP
Thompson Hine & Flory LLP
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