Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K DATED JANUARY 6, 2015 - SUN COMMUNITIES INC | form8-kgreencourtesecondcl.htm |
| EX-12.1 - EXHIBIT 12.1 RATIO OF EARNINGS TO FIXED CHARGES - SUN COMMUNITIES INC | exhibit121computationofear.htm |
| EX-8.1 - EXHIBIT 8.1 OPINION OF JAFFE, RAITT, HEUER & WEISS - SUN COMMUNITIES INC | exhibit81opinionofjafferai.htm |
| EX-99.1 - EXHIBIT 99.1 PRESS RELEASE DATED JANUARY 6, 2015 - SUN COMMUNITIES INC | exhibit991pressreleasedate.htm |
January 12, 2015
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 Company’s issuance, pursuant to the terms of the Transaction Documents, as defined below, of up to (i) 6,330,551shares of the Company’s 6.50% Series A-4 Cumulative Convertible Preferred Stock (“Series A-4 Preferred Stock”), (ii) 8,590,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), consisting of (A) 4,888,870 shares of Common Stock to be issued pursuant to the Transaction Documents (together with the Series A-4 Preferred Stock, the “Shares”), (B) up to 2,813,578 shares of Common Stock (the “Conversion Shares”) initially issuable upon conversion of the Series A-4 Preferred Stock, (C) up to 501,130 shares of Common Stock initially issuable upon exchange of common OP Units (the “Common Exchange Shares”) issued by Sun Communities Operating Limited Partnership, a Michigan limited partnership (“SCOLP”), pursuant to the Transaction Documents, and (D) 386,422 shares of Common Stock (together with the Common Exchange Shares, the “Exchange Shares” and together with the Common Exchange Shares, the Shares and the Conversion Shares, the “Securities”) initially issuable upon exchange of Series A-4 Preferred OP Units (together with the common OP Units, the “Units”) issued by SCOLP pursuant to the Transaction Documents. The above-referenced Registration Statement filed under the Securities Act of 1933, as amended, and the regulations promulgated thereunder, includes a prospectus and a prospectus supplement (the “Prospectus Supplement”) filed with the Securities and Exchange Commission on January 7, 2015 (collectively, the “Prospectus”) to be furnished to potential purchasers of the Shares to be offered for sale by the selling stockholders named in the Prospectus. We understand that our opinion is required to be filed as an exhibit to the Registration Statement.
In our capacity as special Maryland counsel to the Company and for purposes of this opinion, 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”); (c) the Second Amended and Restated Bylaws of the Company (the “Bylaws”); (d) certain resolutions of the Board of Directors of the Company regarding the Transaction
Documents and the transactions contemplated thereby; (e) a certificate of the Company regarding certain matters related to the issuance and sale of the securities pursuant to the Transaction Documents and the transactions contemplated thereby; (f) a certificate of the Maryland State Department of Assessments and Taxation dated December 16, 2014 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 transact business in the State of Maryland; (g) the Omnibus Agreement dated as of July 30, 2014, by and among Green Courte Real Estate Partners, LLC, GCP REIT II, American Land Lease, Inc., Asset Investors Operating Partnership, L.P., GCP REIT III, SCOLP, the Company and Sun Home Services, Inc., as amended by (i) a letter agreement dated July 30, 2014, among Sun Communities Operating Limited Partnership, the Company, Sun Home Services, Inc., Green Courte Real Estate Partners, LLC, GCP REIT II, American Land Lease, Inc., Asset Investors Operating Partnership, L.P. and GCP REIT III addressing certain matters related to the Omnibus Agreement and the Definitive Agreements (the “Letter Agreement”) and (ii) the First Amendment to Omnibus Agreement, Definitive Agreements and Letter Agreement (the “First Amendment”), dated November 25, 2014, by and among Green Courte Real Estate Partners, LLC, GCP REIT II, American Land Lease, Inc., Asset Investors Operating Partnership, L.P., GCP REIT III, Sun Communities Operating Limited Partnership, the Company and Sun Home Services, Inc. (the “Omnibus Agreement”); (h) the Agreement and Plan of Merger dated July 30, 2014, by and between the Company, Sun Maryland, Inc., a wholly-owned subsidiary of the Company, and GCP REIT II, as amended by the Letter Agreement and the First Amendment (the “Fund 2 Merger Agreement”); (i) the Agreement and Plan of Merger dated July 30, 2014, by and between the Company, Sun Maryland, Inc., a wholly-owned subsidiary of the Company, and GCP REIT III, as amended by the Letter Agreement and the First Amendment (together with the Fund 2 Merger Agreement, the “Merger Agreements”); (j) the Subscription Agreement dated as of July 30, 2014, by and among Green Courte Real Estate Partners III, LLC, the Company, and SCOLP, as amended by the Letter Agreement and the First Amendment (together with the Omnibus Agreement and the Merger Agreements, the “Transaction Documents”); (k) the Third Amended and Restated Agreement of Limited Partnership, as amended, of SCOLP; and (l) such other documents and matters as we have deemed necessary and appropriate to render this opinion, 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 this opinion 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 are correct as to questions of fact, and (iii) the persons identified as officers 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) with respect to our opinions in paragraph (2) below, as of each and every time any of the shares of Series A-4 Preferred Stock are converted into Conversion Shares or any of the Units are exchanged for Exchange Shares, (i) there will not have occurred any change in the law or the facts affecting the validity of the Conversion Shares or the Exchange Shares, (ii) the Charter, Bylaws and the resolutions authorizing the Company to enter into the Transaction Documents and to issue the Securities will not have been amended, repealed
or revoked, and (iii) the Company will remain duly organized, validly existing and in good standing under Maryland law; (2) at the time of the issuance of the Securities, the Company or its transfer agent recorded or will record in the Company’s stock ledger the name of the persons to whom such shares are issued; and (3) none of the Securities were or will be issued in violation of the restrictions on ownership and transfer set forth in Article VII of the Charter.
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:
1. | The Shares are validly issued, fully paid and nonassessable. |
2. | The Exchange Shares and the Conversion Shares, when issued and delivered in pursuant to and in accordance with the terms of the Transaction Documents, the Series A Preferred Stock and the Units, as applicable, against payment of the consideration therefor as contemplated therein, 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 concerns 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 opinion 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 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 filing of the Prospectus Supplement (the “Form 8-K”), which will be incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion 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