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EXHIBIT 8.1
[JAFFE, RAITT, HEUER & WEISS LETTERHEAD]
October 21, 1996
Sun Communities, Inc.
Sun Communities Operating Limited Partnership
31700 Middlebelt Road, Suite 145
Farmington Hills, Michigan 48334
Gentlemen:
We are acting as counsel to Sun Communities Operating Limited
Partnership, a Michigan limited partnership (the "Operating Partnership"), and
Sun Communities, Inc., a Maryland corporation (the "Company"), in connection
with their registration statement on Form S-3 (the "Registration Statement")
filed with the Securities and Exchange Commission on or about October 17, 1996
relating to the proposed public offering of up to $500,000.000 in aggregate
amount of one or more series of (i) unsecured debt securities (the "Partnership
Debt Securities") by the Operating Partnership, (ii) debt securities (the
"Company Debt Securities"; the Company Debt Securities and the Partnership Debt
Securities are sometimes hereinafter collectively referred to as the "Debt
Securities") by the Company, (iii) shares of the Company's preferred stock,
$.01 par value (the "Preferred Stock"), (iv) shares of the Company's common
stock (the "Common Stock"), $.01 par value (the "Common Stock"), and (v)
warrants for the purchase of Preferred Stock or Common Stock (the "Warrants"
and, together with the Partnership Debt Securities, Company Debt Securities,
Preferred Stock, and Common Stock, the "Securities"), all of which Securities
may be offered and sold by the Company and the Operating Partnership from time
to time as set forth in the prospectus which forms a part of the Registration
Statement (the "Prospectus"), and as to be set forth in one or more supplements
to the Prospectus (each, a "Prospectus Supplement"). This opinion letter is
furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in
connection with the Registration Statement.
For purposes of our opinions set forth below, we assume that (i) the
issuance, sale, amount and terms of the Securities to be offered from time to
time will be duly authorized and determined by proper action of the Board of
Directors of the Company (a "Board Action"), in its own capacity or in its
capacity as general partner of the Operating Partnership, in accordance with
the Company's Articles of Amendment and Restatement (the "Charter"), and
applicable Maryland law, (ii) any senior Debt Securities will be issued
pursuant to a "Senior Indenture" and any subordinated Debt Securities will be
issued pursuant to a "Subordinated Indenture", the forms
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JAFFE, RAITT, HEUER & WEISS
Sun Communities, Inc.
Sun Communities Operating Limited Partnership
October 21, 1996
Page 2
of which are filed as Exhibits 4.1 and 4.2, respectively, to the Registration
Statement, and (iii) any Securities Warrants will be issued under one or more
warrant agreements (each, a "Warrant Agreement"), each to be between the
Company and a financial institution identified therein as a warrant agent
(each, a "Warrant Agent").
For purposes of this opinion letter, we have examined copies of the
following documents:
A. An executed copy of the Registration Statement;
B. The Charter;
C. The Bylaws of the Company;
D. The forms of Indenture between the issuer of the Debt
Securities and the trustee to be named therein, filed as
Exhibits 4.1 and 4.2, respectively, to the Registration
Statement (the "Indentures");
E. Second Amended and Restated Limited Partnership Agreement of
Sun Communities Operating Limited Partnership;
F. The first through eighth amendments, inclusive, to the Second
Amended and Restated Limited Partnership Agreement of Sun
Communities Operating Limited Partnership; and
G. Officer's Certificate (the "Certificate"), a copy of which is
attached to this letter as Exhibit A.
The documents listed in items A-G above are collectively referred to
as the "Documents".
In rendering our opinion, we have assumed, without independent
verification, that: (i) all signatures are genuine; (ii) all Documents
submitted to us as originals are authentic; and (iii) all Documents submitted
to us as copies conform to the originals of such Documents. Our review has
been limited to examining the Documents and applicable law.
To the extent that any opinion in this letter relates to or is
dependent upon factual information, we have relied exclusively upon the factual
representations and warranties set forth
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JAFFE, RAITT, HEUER & WEISS
Sun Communities, Inc.
Sun Communities Operating Limited Partnership
October 21, 1996
Page 3
in the Certificate, and we have not undertaken to independently verify any such
facts or information.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof:
1. When the Registration Statement has become effective
under the Securities Act of 1933 (the "Act") and when the Debt
Securities have been (a) duly established by an Indenture or any
supplemental indenture thereto, (b) duly authorized and established by
applicable Board Action and duly authenticated by the Trustee, and (c)
duly executed and delivered on behalf of the Company or the Operating
Partnership (hereinafter sometimes referred to as the "Issuer")
against payment therefor in accordance with the terms of such Board
Action, any applicable underwriting agreement, an Indenture and any
applicable supplemental indenture, and as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement,
the Debt Securities will constitute binding obligations of the Issuer
enforceable in accordance with their terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights (including, without limitation, the effect
of statutory and other law regarding fraudulent conveyances,
fraudulent transfers and preferential transfers) and as may be limited
by the exercise of judicial discretion and the application of
principles of equity, including, without limitation, requirements of
good faith, fair dealing, conscionability and materiality (regardless
of whether the Debt Securities are considered in a proceeding in
equity or at law).
2. When the Registration Statement has become effective
under the Act and when a series of the Preferred Stock has been duly
authorized and established by applicable Board Action, in accordance
with the terms of the Charter and applicable law, and, upon issuance
and delivery of certificates for such Preferred Stock against payment
therefor in accordance with the terms of such Board Action and any
applicable underwriting agreement, and as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement,
the shares represented by such certificates will be validly issued,
fully paid and non-assessable.
3. When the Registration Statement has become effective
under the Act, upon due authorization by Board Action of an issuance
of Common Stock, and upon issuance and delivery of certificates for
Common Stock against payment therefor in accordance with the terms of
such Board Action and any applicable underwriting agreement, and as
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Sun Communities, Inc.
Sun Communities Operating Limited Partnership
October 21, 1996
Page 4
contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, the shares represented by such certificates
will be validly issued, fully paid and non-assessable by the Company.
4. When the Registration Statement has become effective
under the Act and when the Securities Warrants have been (a) duly
established by the related Warrant Agreement, (b) duly authorized and
established by applicable Board Action and duly authenticated by the
Warrant Agent, and (c) duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms of such
Board Action, any applicable underwriting agreement and the applicable
Warrant Agreement and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Common Share Warrants
will constitute binding obligations of the Company, enforceable in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers) and as may be limited by the
exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether
the Securities Warrants are considered in a proceeding in equity or at
law).
To the extent that the obligations of the Issuer under an Indenture
may be dependent upon such matters, we assume for purposes of the opinion set
forth in paragraph 1 above that the Trustee is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; that
the Trustee is duly qualified to engage in the activities contemplated by the
Indenture; that the Indenture has been duly authorized, executed and delivered
by the Trustee and constitutes the legally valid and binding obligation of the
Trustee enforceable against the Trustee in accordance with its terms; that the
Trustee is in compliance, with respect to acting as a trustee under the
Indenture, with all applicable laws and regulations; and that the Trustee has
the requisite organizational and legal power and authority to perform its
obligations under the Indenture.
To the extent that the obligations of the Company under any Warrant
Agreement may be dependent upon such matters, we assume for purposes of the
opinion set forth in paragraph 4 above that the applicable Warrant Agent is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization; that the Warrant Agent is duly qualified to
engage in the activities contemplated by the Warrant Agreement; that the
Warrant Agreement has been duly authorized, executed and delivered by the
Warrant Agent and constitutes the legally
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JAFFE, RAITT, HEUER & WEISS
Sun Communities, Inc.
Sun Communities Operating Limited Partnership
October 21, 1996
Page 5
valid and binding obligation of the Warrant Agent enforceable against the
Warrant Agent in accordance with its terms; that the Warrant Agent is in
compliance, with respect to acting as a Warrant Agent under the Warrant
Agreement, with all applicable laws and regulations; and that the Warrant Agent
has the requisite organizational and legal power and authority to perform its
obligations under the Warrant Agreement.
The opinions expressed in paragraphs (1) and (4) above shall be
understood to mean only that if there is a default in performance of an
obligation, (i) if a failure to pay or other damage can be shown and (ii) if
the defaulting party can be brought into a court which will hear the case and
apply the governing law, then, subject to the availability of defenses and to
the exceptions set forth in the opinion, the court will provide a money damage
(or perhaps injunctive or specific performance) remedy.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement, and to the use of the name of our firm in the
Prospectus under the caption "LEGAL MATTERS".
Very truly yours,
JAFFE, RAITT, HEUER & WEISS
Professional Corporation
/s/ Jeffrey L. Forman
Jeffrey L. Forman
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EXHIBIT "A"
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OFFICER'S CERTIFICATE
The undersigned, the duly elected and acting Secretary and Senior Vice
President of SUN COMMUNITIES, INC., a Maryland corporation (the "Corporation"),
hereby represents and warrants the following to Jaffe, Raitt, Heuer & Weiss,
professional corporation ("JRH&W"):
1. Sun Communities, Inc. ("Sun") is a corporation formed under
the laws of the State of Maryland.
2. The Articles of Amendment and Restatement of the Company have
not been amended since November 8, 1993.
3. The Second Amended and Restated Limited Partnership Agreement
of Sun Communities Operating Limited Partnership, a Michigan limited
partnership, has not been amended other than pursuant to amendments prepared by
JRH&W.
October 21, 1996 _______________________________________
Jeffrey P. Jorissen, Senior Vice
President and Secretary of Sun
Communities, Inc.