Attached files

file filename
8-K - 8-K - SUN COMMUNITIES INCform8-kxnovember2012prefer.htm
EX-8.1 - OPINION - SUN COMMUNITIES INCexhibit81opinion.htm
EX-99.1 - PRESS RELEASE 11-06-12 - SUN COMMUNITIES INCex991pressrelease110612.htm
EX-12.1 - RATIO OF EARNINGS - SUN COMMUNITIES INCexhibit121calcratio110612.htm
EX-1.1 - UNDERWRITING AGREEMENT - SUN COMMUNITIES INCexhibit11underwritingagree.htm












 
November 9, 2012
 
Sun Communities, Inc.
27777 Franklin Road, Suite 200
Southfield, Michigan 48034

Re:    Sun Communities, Inc. – Registration Statement on Form S-3
(File No: 333-181315) (the “Registration Statement”)    


Ladies and Gentlemen:

We have acted as special Maryland counsel to Sun Communities, Inc. (the “Company”), a corporation incorporated under the laws of the State of Maryland, in connection with the issuance of up to 3,450,000 shares (the “Shares”) of 7.125% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”), of the Company (including up to 450,000 shares which the Underwriters (as hereinafter defined) have the option to purchase) in a public offering (the “Offering”) pursuant to the above referenced Registration Statement under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder. The Shares may be converted into shares of common stock, $0.01 par value per share, of the Company (the “Conversion Shares”) in accordance with the Articles Supplementary (as hereinafter defined). The Registration Statement includes a prospectus and a prospectus supplement filed with the Securities and Exchange Commission (the “Commission”) on November 7, 2012 (collectively, the “Prospectus”) to be furnished to potential purchasers in the Offering.

In our capacity as special Maryland counsel to the Company and for purposes of this opinion letter, we have examined: (a) the Registration Statement, including the Prospectus; (b) the Articles of Incorporation of the Company, as amended or supplemented from time to time (the “Charter”), which includes the Articles Supplementary relating to the Series A Preferred Stock (the “Articles Supplementary”), (c) the First Amended and Restated Bylaws of the Company (the “Bylaws”); (d) certain resolutions of the Board of Directors of the Company or committees thereof regarding the Offering; (e) a certificate of the Company regarding certain matters related to the issuance and sale of the securities in the Offering; (f) a certificate of the Maryland State Department of Assessments and Taxation dated November 8, 2012 to the effect that the Company is duly incorporated and existing under the laws of the State of Maryland and is in good standing and duly authorized to


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November 9, 2012
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transact business in the State of Maryland; (g) the Underwriting Agreement, dated as of November 6, 2012, among the Company, Sun Communities Operating Limited Partnership, and Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representatives of the several underwriters named in Schedule II thereto (the “Underwriting Agreement”); and (h) such other documents and matters as we have deemed necessary and appropriate to render the opinions set forth below, subject to the limitations, assumptions, and qualifications contained herein.

In the course of our review, we have assumed: (i) the documents reviewed and relied upon in giving the opinions set forth below are true and correct copies of the original documents, the signatures on such documents are genuine, and the persons executing such documents have the legal capacity to execute such documents; (ii) the representations of officers and employees of the Company are correct as to questions of fact; and (iii) the persons identified as officers of the Company are actually serving as such and that any certificates representing the Shares are properly executed by one or more such persons.

We have also assumed that: (1) the resolutions authorizing the Company to issue, offer and sell the Shares are, and will be, in full force and effect at all times at which any Shares are offered or sold by the Company; (2) the Registration Statement and any amendment thereto will remain effective at the time of the issuance of the Shares thereunder; (3) at the time of the issuance of the Shares, the Company will record or cause to be recorded in its stock ledger the name of the persons to whom such shares are issued; (4) none of the Shares will be issued in violation of the restrictions on ownership and transfer set forth in Article VII of the Charter; and (5) the Company will remain duly organized, validly existing and in good standing under Maryland law at the time any Shares are issued.

Furthermore, we have assumed that: (1) the resolutions authorizing the Company to issue, the Conversion Shares are, and will be, in full force and effect at all times at which any Conversion Shares are issued by the Company; (2) the Registration Statement and any amendment thereto will remain effective at the time of the issuance of the Conversion Shares; (3) at the time of the issuance of the Conversion Shares, the Company will record or cause to be recorded in its stock ledger the name of the persons to whom such shares are issued; (4) none of the Conversion Shares will be issued in violation of the restrictions on ownership and transfer set forth in Article VII of the Charter; (5) the Company will remain duly organized, validly existing and in good standing under Maryland law at the time any Conversion Shares are issued; (6) upon the issuance of the Conversion Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter; (7) the Charter will not be amended after the date hereof in a manner that would affect the issuance of the Conversion Shares as contemplated by the Articles Supplementary; and (8) a Change of Control (as that term is defined in the Articles Supplementary) shall have occurred, and the Company shall have complied in all respects with the provisions of Article THIRD, Section 8 of the Articles Supplementary.
 
Based upon the foregoing and subject to the limitations and assumptions set forth herein, and having due regard for such legal considerations as we deem relevant, we are of the opinion that:
(i)    the Shares, when issued and delivered in accordance with the terms of the Offering against payment of the consideration therefor as contemplated by the Registration Statement, the


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Prospectus and the Underwriting Agreement, will be validly issued, fully paid and nonassessable; and
(ii)    the Conversion Shares, when issued and delivered in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable.
The foregoing opinions are based on and are limited to the Maryland General Corporation Law (including the reported judicial decisions interpreting those laws currently in effect), and we express no opinion herein with respect to the effect or applicability of the laws of any other jurisdiction. The opinions expressed herein concern only the effect of the laws (excluding the principles of conflict of laws) as currently in effect, and we assume no obligation to supplement the opinions expressed herein if any applicable laws change after the date hereof, or if we become aware of any facts that might change the opinions expressed herein after the date hereof.

Notwithstanding anything to the contrary contained herein, we express no opinion concerning the securities laws of the State of Maryland, or the rules and regulations promulgated thereunder, or any decisional laws interpreting any of the provisions of the securities laws of the State of Maryland, or the rules and regulations promulgated thereunder.
     This opinion letter is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Offering (the “Form 8-K”), which will be incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Form 8-K and to the reference to our firm under the caption “Legal Matters” in the Prospectus. By giving such consent, we do not admit that we are experts with respect to any part of the Registration Statement, including Exhibit 5, within the meaning of the term “expert” as used in the Securities Act or the rules and regulations promulgated thereunder.

Very truly yours,

OBER, KALER, GRIMES & SHRIVER,
A PROFESSIONAL CORPORATION


                        By:     /s/ Kenneth B. Abel        
Kenneth B. Abel, Shareholder