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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
DATE OF REPORT: MAY 7, 1998
(Date of earliest event reported)
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
MICHIGAN COMMISSION FILE NO. 333-2522-01 38-3144240
(State of Organization) (IRS Employer I.D. No.)
31700 MIDDLEBELT ROAD
SUITE 145
FARMINGTON HILLS, MICHIGAN 48334
(Address of principal executive offices)
(248) 932-3100
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS.
Sun Communities Operating Limited Partnership entered into an agreement
to issue $65,000,000 of Callable/Redeemable Notes due May 14, 2015 (the "Notes")
as of May 7, 1998.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS
4.1 Form of Callable/Redeemable Note due May 14, 2015
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
as to certain federal tax matters pertaining to the
Notes
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 8.1)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP
a Michigan limited partnership
By: Sun Communities, Inc., a Maryland corporation
Its: General Partner
Date: May 13, 1998 By: /s/ Jeffrey P. Jorissen
-----------------------------------------
Jeffrey P. Jorissen, Senior Vice President,
Treasurer, Chief Financial Officer, and
Secretary
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EXHIBIT INDEX
Exhibit Filed
Number Description Herewith
- ------- ----------- --------
4.1 Form of Callable/Redeemable Note due May 14, 2015 X
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP, as X
to certain federal tax matters pertaining to the Notes
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP X
(included in Exhibit 8.1)
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EXHIBIT 4.1
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
THIS NOTE MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITORY OR A NOMINEE
THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND
DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP
CALLABLE/REDEEMABLE FIXED RATE NOTE
REGISTERED
NO. FXR - [_____________] PRINCIPAL AMOUNT
CUSIP NO. 86667PAB3 $65,000,000.00
ORIGINAL ISSUE DATE: May 14, 1998
INITIAL INTEREST RATE: 6.77%
STATED MATURITY DATE: May 14, 2015
COUPON RESET DATE: May 16, 2005
INTEREST PAYMENT DATE(S): May 14 and November 14
INITIAL REDEMPTION DATE: N/A
INITIAL REDEMPTION PERCENTAGE: N/A
ANNUAL REDEMPTION PERCENTAGE REDUCTION: N/A
OPTIONAL REPAYMENT DATE(S): N/A
REPAYMENT PRICE: N/A
[ ] CHECK IF A DISCOUNT NOTE
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[x] United States dollars [x] $1,000 and integral
[ ] Other: multiples thereof
[ ] Other:
ISSUE PRICE: 99.4% EXCHANGE RATE AGENT: N/A
OTHER/ADDITIONAL
PROVISIONS: As set forth on ADDENDUM ATTACHED: Yes
Exhibit A attached
to this Note.
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SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a limited partnership
organized and existing under the laws of the State of Michigan (hereinafter
called the "Company", which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
Co., or registered assigns, upon presentation, the principal sum of
$65,000,000.00 on the Stated Maturity Date specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof or upon any
declaration of acceleration; each such Stated Maturity Date, Redemption Date,
Repayment Date or declaration of acceleration being hereinafter referred to as
the "Maturity Date" with respect to the principal repayable on such date), and
to pay interest thereon, at the Initial Interest Rate per annum specified above
until the Coupon Reset Date and thereafter at a rate determined in accordance
with the provisions set forth on Exhibit A to this Note under "Coupon Reset
Process", until the entire principal hereof is paid or made available for
payment. The Company will pay interest in arrears on each Interest Payment Date,
if any, specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date; PROVIDED, HOWEVER, that if the Original Issue
Date occurs between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the Holder of this Note
on the Record Date with respect to such second Interest Payment Date. Interest
on this Note will be computed on the basis of a 360-day year of twelve 30-day
months. Any capitalized term not defined herein shall have the meaning assigned
to it in that certain Indenture by and among the Company, Sun Communities, Inc.,
a Maryland corporation ("Sun"), and Bankers Trust Company, a New York banking
corporation, dated as of April 24, 1996, and amended pursuant to a First
Supplemental Indenture dated as of August 20, 1997.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the Person in whose name this Note (or one or more predecessor Notes) is
registered in the Security Register applicable to this Note at the close of
business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"); PROVIDED, HOWEVER, that interest payable on the Maturity Date will be
payable to the Person to whom the principal hereof and premium, if any, hereon
shall be payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the Holder on any
Record Date, and shall be paid to the Person in whose name this Note is
registered in the Security Register applicable to this Note at the close of
business on a special record date (the "Special Record Date") for the payment of
such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the Holder of this Note by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
Payments of principal of, premium, if any, and interest in respect of
this Note due on the Maturity Date will be made in immediately available funds
upon presentation and surrender of this Note (and, with respect to any
applicable Repayment Date, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, or at such other paying agency in the Borough
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of Manhattan, The City of New York which is maintained by the Trustee where
Notes may be presented for payment, registration of transfer or exchange, and
where notices to or demands upon the Company in respect of the Notes or the
Indenture may be made, as the Company may determine; PROVIDED, HOWEVER, that if
such payment is to be made in a Specified Currency other than United States
dollars as set forth below, such payment will be made by wire transfer of
immediately available funds to an account with a bank designated by the Holder
hereof at least 15 calendar days prior to the Maturity Date, provided that such
bank has appropriate facilities therefor and that this Note (and, if applicable,
a duly completed repayment election form) is presented and surrendered at the
aforementioned office of the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures. Payment of
interest due on any Interest Payment Date other than the Maturity Date will be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register maintained at the aforementioned
office of the Trustee; PROVIDED, HOWEVER, that a Holder of U.S. $10,000,000 (or,
if the Specified Currency specified above is other than United States dollars,
the equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such Holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; PROVIDED, HOWEVER, that if the Specified Currency is other
than United States dollars and any payment is to be made in the Specified
Currency in accordance with the provisions hereof, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (or, in the case of European Currency
Units ("ECU"), is not a day that appears as an ECU non-settlement day on the
display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day
so designated by the ECU Banking Association) or, if ECU non-settlement days do
not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market).
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency (except as described in the immediately preceding sentence
with respect to ECUs) except that with respect to United States dollars,
Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian
lire, Swiss francs and ECU's, the "Principal Financial Center" shall be The City
of New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
The Company is obligated to make payment of principal of, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or
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currency of the country which issued the Specified Currency as at the time of
such payment is legal tender for the payment of such debts). If the Specified
Currency is other than United States dollars, any such amounts so payable by the
Company will be converted by the Exchange Rate Agent specified above into United
States dollars for payment to the Holder of this Note; PROVIDED, HOWEVER, that
the Holder of this Note may elect to receive such amounts in such Specified
Currency pursuant to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the Holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all Holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the Holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency unless the Specified Currency is not available due to
the imposition of exchange controls or other circumstances beyond the control of
the Company.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by facsimile transmission. The Holder of this Note may elect to receive
all or a specified portion of all future payments in the Specified Currency in
respect of such principal, premium, if any, and/or interest and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Trustee, but written notice of any such
revocation must be received by the Trustee on or prior to the applicable Record
Date or at least 15 calendar days prior to the Maturity Date, as the case may
be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the Holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) computed by the Exchange Rate Agent on the second Business
Day prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as otherwise specified on the face hereof. The "Market Exchange Rate" for the
Specified Currency means the noon dollar buying rate in The City of New York for
cable transfers for the Specified Currency as certified for customs purposes by
(or if not so certified, as
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otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed on the basis
of the equivalent of the composite currency in United States dollars. The
component currencies of the composite currency for this purpose (collectively,
the "Component Currencies" and each, a "Component Currency") shall be the
currency amounts that were components of the composite currency as of the last
day on which the composite currency was used. The equivalent of the composite
currency in United States dollars shall be calculated by aggregating the United
States dollar equivalents of the Component Currencies. The United States dollar
equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the Market Exchange Rate on the second
Business Day prior to such payment date or, if such Market Exchange Rate is not
then available, on the basis of the most recently available Market Exchange Rate
for each such Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of Authentication
and, if so specified above, in the Addendum hereto, which further provisions
shall have the same force and effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
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Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SUN COMMUNITIES OPERATING
LIMITED PARTNERSHIP
By: Sun Communities, Inc.
Its: General Partner
By:________________________________
Name: Gary A. Shiffman
Title: President
Date: May 14, 1998
By:________________________________
Name: Jeffrey P. Jorissen
Title: Chief Financial Officer
[SEAL]
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By: Date: , 1998
----------------------------- ---------------------------
Authorized Officer
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SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP
CALLABLE/REDEEMABLE FIXED RATE NOTE
This Note is one of a duly authorized issue of securities of the
Company (hereinafter called the "Securities"), issued and to be issued in one or
more series under an Indenture (the "Indenture") among the Company, Sun, and
Bankers Trust Company, a banking corporation organized under the laws of the
State of New York, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture with respect to the series of which
this Note is a part), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Note is one of the series of
Securities designated as "Medium-Term Notes Due Nine Months or More From Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on written notice given to the Holder of this Note no more than 60 nor
less than 30 calendar days prior to the Redemption Date and in accordance with
the provisions of the Indenture. If no Initial Redemption Date is set forth on
the face hereof, this Note may not be redeemed prior to Maturity. The
"Redemption Price", if any, shall initially be the Initial Redemption Percentage
specified on the face hereof, if any, multiplied by the unpaid principal amount
of this Note to be redeemed. The Initial Redemption Percentage, if any, shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the Holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Company at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a
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"Repayment Date"). If an Optional Repayment Date is not set forth on the face
hereof, this Note will not be repayable at the option of the Holder hereof prior
to Maturity. For this Note to be repaid, this Note must be received, together
with the form hereon entitled "Option to Elect Repayment" duly completed, by the
Trustee at its corporate trust office not more than 60 nor less than 30 calendar
days prior to the Repayment Date. Exercise of such repayment option by the
Holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
Holder hereof upon the presentation and surrender hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the Holder of this Note in the event of redemption, repayment
or acceleration of maturity will be equal to the sum of (1) the Issue Price, if
any, specified on the face hereof (increased by any accruals of the Discount, as
defined below) and, in the event of any redemption of this Note (if applicable),
multiplied by the Initial Redemption Percentage (as adjusted by the Annual
Redemption Percentage Reduction, if applicable), if any, and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a coupon rate equal
to the initial interest rate applicable to this Note and an assumption that the
maturity of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, shall occur and be continuing, the principal
amount of the Notes may be declared accelerated and thereupon become due and
payable in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Note.
If any Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and Make-Whole Amount, if any, on the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy hereunder, unless (i) such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with
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respect to the Securities of this series, (ii) the Holders of not less than 25%
in principal amount of the Securities of this series at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee, (iii) such Holder or Holders have
offered reasonable indemnity to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request, (iv) the Trustee
shall have failed to institute any such proceeding for 60 days after its receipt
of such notice, request and offer of indemnity, and (v) the Trustee shall not
have received from the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent with such
request. The foregoing shall not apply to any suit instituted by the Holder of
this Note for the enforcement of any payment of principal hereof (and Make-Whole
Amount, if any) or any interest thereon on or after the respective due dates
expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities of each series at the time Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of at least a majority
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holders of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, Make-Whole Amount, if any,
on, and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in any Place of Payment where the principal of, make-Whole
Amount, if any, on, and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange of Securities of this series, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. In no event shall the Company be required to pay any
Additional Amounts as contemplated by the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
-10-
<PAGE> 11
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Note, or because of any indebtedness
evidenced thereby or hereby, shall be had against any promoter, as such or,
against any past, present or future stockholder, partner, officer or director,
as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of this Note by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS NOTE, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
The Notes are not redeemable prior to maturity but are subject to the
Call Option and are entitled to the Mandatory Redemption described on Exhibit A
to this Note.
-11-
<PAGE> 12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety _______ Custodian ______
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to Minors
tenants in common Act _______________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------------------------
Social Security or taxpayer I.D. or other identifying number of assignee.
- ------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________, attorney to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: ____________________
--------------------------------------
-12-
<PAGE> 13
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at
- ------------------------------------------
- ------------------------------------------
- ------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, not more than 60
nor less than 30 calendar days prior to the Repayment Date, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the Holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
--------------------------------------------------
Date: Notice: The signature(s) on this Option to Elect
Repayment must correspond with the name(s) as
written upon the face of this Note in every
particular, without alteration or enlargement or
any change whatsoever.
-13-
<PAGE> 14
EXHIBIT A
OTHER PROVISIONS
CALL OPTION; MANDATORY REDEMPTION
The Company and any of its assigns, including, but not limited to,
Lehman Brothers International (Europe), a subsidiary of Lehman Brothers Inc.
(the "Callholder"), has the right to purchase this Note in whole but not in part
on the Coupon Reset Date (as defined above) (the "Call Option"), at a price
equal to 100% of the principal amount hereof (the "Call Price"), by giving
notice to the Trustee (the "Call Notice"). In the event of exercise of the Call
Option, then (i) not later than 2:00 p.m. New York time on the Business Day
prior to the Coupon Reset Date, the Callholder shall deliver the Call Price in
immediately available funds to the Trustee for payment of the Call Price on the
Coupon Reset Date and (ii) the holders of the Notes shall be required to deliver
the Notes to the Callholder against payment therefor on the Coupon Reset Date
through the facilities of DTC. Such Call Notice shall be given to the Trustee,
in writing, no later than seven calendar days prior to the Coupon Reset Date.
If the Callholder elects to exercise the Call Option, the obligation of
the Callholder to pay the Call Price is subject to the conditions precedent
that, (i) since the date of the Call Notice, no Event of Default (as defined in
the Indenture) or any event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default with respect to the Notes
shall have occurred and be continuing; (ii) no Market Disruption Event (as
defined below) shall have occurred; and (iii) two or more Dealers (as defined
below) shall have provided timely Bids (as defined below) in the manner
described below under "Coupon Reset Process." No holder of Notes shall have any
rights or claims against the Callholder as a result of the Callholder not
purchasing the Notes.
If the Call Option has not been exercised, or in the event the
Callholder is not required or fails to deliver the Call Price to the Trustee not
later than 2:00 p.m. New York time on the Business Day prior to the Coupon Reset
Date, the Company will be required to purchase all of the Notes on the Coupon
Reset Date (the "Mandatory Redemption"), at a purchase price equal to 100% of
the entire principal amount thereof (the "Mandatory Redemption Price"). No
holder has the right to consent or object to the Company's Mandatory Redemption
of the Notes. If the Notes are subject to Mandatory Redemption, the Company will
deliver the Mandatory Redemption Price to the Trustee, together with the accrued
and unpaid interest due on the Coupon Reset Date, by no later than 4:00 p.m. New
York time on the day prior to the Coupon Reset Date and the holders of Notes
will be required to deliver the Notes to the Company against payment therefor on
the Coupon Reset Date through the facilities of DTC.
COUPON RESET PROCESS
If the Callholder has exercised the Call Option as set forth above
under "Call Option; Mandatory Redemption," the Company and the Calculation Agent
shall complete the following steps in order to determine the interest rate to be
paid on the Notes from and including such Coupon Reset Date to the Maturity
Date. The Company and the Calculation Agent shall use reasonable efforts to
cause the actions contemplated below to be completed in as timely a manner as
possible.
(a) The Company shall provide the Calculation Agent with a list (the
"Dealer List"), no later than four Business Days prior to the Coupon Reset Date,
containing the names and
A-1
<PAGE> 15
addresses of five dealers, one of which shall be Lehman Brothers Inc. or its
successor as Calculation Agent, from which it desires the Calculation Agent to
obtain the Bids (as defined below) for the purchase of the Notes. As used
herein, "Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law, executive order or governmental decree to close.
(b) Within one Business Day following receipt by the Calculation Agent
of the Dealer List, the Calculation Agent shall provide to each dealer (each, a
"Dealer") on the Dealer List (i) a copy of the Pricing Supplement dated May 7,
1998 relating to the offering of the Notes and the Prospectus Supplement dated
August 20, 1997, which includes the Prospectus dated October 30, 1996, (ii) a
copy of the form of Notes and (iii) a written request that each Dealer submit a
Bid to the Calculation Agent by 12:00 noon New York time (the "Bid Deadline") on
the third Business Day prior to the Coupon Reset Date (the "Bid Date"). "Bid"
shall mean an irrevocable written offer given by a Dealer for the purchase
settling on the Coupon Reset Date, and shall be quoted by such Dealer as a
stated yield to maturity on the Notes (the "Yield to Maturity"). Each Dealer
shall be provided with (i) the name of the Company, (ii) an estimate of the
Purchase Price (as defined below) (which shall be stated as a United States
dollar amount and be calculated by the Calculation Agent in accordance with
clause (c) below), (iii) the principal amount and maturity of the Notes and (iv)
the method by which interest will be calculated on the Notes.
(c) The purchase price to be paid by any Dealer for the Notes (the
"Purchase Price") shall be equal to (i) the principal amount of the Notes plus
(ii) a premium (the "Notes Premium") which shall be equal to the excess, if any,
of (A) the discounted present value to the Coupon Reset Date of a hypothetical
United States Treasury security, with a maturity of May 14, 2015 which has an
interest rate of 5.669%, semi-annual interest payments on each November 14, and
May 14, commencing November 14, 2005 and a principal amount of $65,000,000, and
assuming a discount rate equal to the Treasury Rate (as defined below) over (B)
$65,000,000. "Treasury Rate" means the rate as of May 6, 2005 ("Determination
Date") as set forth in H.15 (519) as appears on Telerate Page 7051, or its
successor page, opposite the ten year heading, under the caption "Treasury
Constant Maturities". If such rate is no longer displayed, then the USD-CMT-H.15
for such Coupon Reset Date will be such ten year Treasury Constant Maturity rate
(or other ten year United States Treasury rate) quoted on the Determination Date
as may then be published by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly published in the Federal
Reserve Board Statistical Release H.15 (519).
(d) Following the receipt of the Bids, the Calculation Agent shall
provide written notice to the Company, setting forth (i) the names of each of
the Dealers from whom the Calculation Agent received Bids on the Bid Date, (ii)
the Bid submitted by each such Dealer and (iii) the Purchase Price as determined
pursuant to paragraph (c) hereof. Except as provided below, the Calculation
Agent shall thereafter select from the Bids received by the Bid Deadline on the
Bid Date, the Bid with the lowest Yield to Maturity (the "Selected Bid") and
establish the Coupon Reset Rate equal to the interest rate which would amortize
the Notes Premium fully over the term of the Notes at the Yield to Maturity
indicated by the Selected Bid, provided, however, that if the Calculation Agent
has not received a Bid from a Dealer by the Bid Deadline on the Bid Date, the
Selected Bid shall be the lowest of all Bids, received by such time, and
provided, further, that if any two or more of the lowest Bids submitted are
equivalent, the Company shall in its sole discretion select any of such
equivalent Bids (and such selected Bid shall be the Selected Bid).
A-2
<PAGE> 16
(e) Immediately after calculating the Coupon Reset Rate, the
Calculation Agent shall provide written notice to the Company and the Trustee
setting forth such Coupon Reset Rate. The Company shall thereafter establish the
Coupon Reset Rate as the new interest rate on the Notes, effective from and
including the Coupon Reset Date, by delivery to the Trustee on or before the
Coupon Reset Date of an officer's certificate.
(f) The Callholder shall sell the Notes to the Dealer that made the
Selected Bid at the Purchase Price, such sale to be settled on the Coupon Reset
Date in immediately available funds.
If the Calculation Agent determines that (i) since the Call Notice, an
Event of Default or any event which, with the giving of notice or the passage of
time, or both, would constitute an Event of Default with respect to the Notes,
shall have occurred and be continuing, (ii) a Market Disruption Event has
occurred or (iii) two or more of the Dealers have failed to provide Bids in a
timely manner substantially as provided above, the Call Option will be
automatically revoked, and the Notes will be subject to Mandatory Redemption by
the Company. "Market Disruption Event" shall mean any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the establishment of minimum prices in such exchange;
(ii) a general moratorium on commercial banking activities declared by either
federal or New York State authorities; (iii) any material adverse change in the
existing financial, political or economic conditions in the United States of
America; (iv) an outbreak or escalation of major hostilities involving the
United States of America or the declaration of a national emergency or war by
the United States of America; or (v) any material disruption of the U.S.
government securities market, U.S. corporate bond market or U.S. federal wire
system.
A-3
<PAGE> 1
EXHIBIT 8.1
May 14, 1998
Sun Communities Operating
Limited Partnership
31700 Middlebelt Road
Suite 145
Farmington Hills, Michigan 48334
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Re: Sun Communities Operating Limited Partnership
$65,000,000 6.77% Callable/Redeemable Notes
due May 14, 2015, Manditorily Redeemable/Callable
May 16, 2005
Ladies and Gentlemen:
We have acted as special tax counsel for Sun Communities
Operating Limited Partnership, a Michigan limited partnership (the "Company"),
in connection with the Distribution Agreement, dated as of August 20, 1997,
among the Company, Sun Communities, Inc., the General Partner of the Company
("Sun"), and Lehman Brothers Inc. ("Lehman Brothers") (the "Distribution
Agreement") and the Purchase Agreement, dated as of May 7, 1998, between the
Company and Lehman Brothers (the "Purchase Agreement") relating to (i) the
issuance and sale of $65,000,000 in aggregate principal amount of 6.77%
Callable/Redeemable Notes due May 14, 2015, Manditorily Redeemable/Callable May
16, 2005 (the "Notes") and (ii) the assignment of the Call Option (as defined in
the Notes) by the Company to Lehman Brothers International (Europe) ("Lehman
Brothers International"), a subsidiary of Lehman Brothers Inc. The Notes are to
be issued under the Indenture, dated as of April 24, 1996, among the Company,
Sun, and Bankers Trust Company (the "Trustee"), as supplemented by the
<PAGE> 2
Sun Communities Operating
Limited Partnership
Lehman Brothers Inc.
May 14, 1998
Page 2
First Supplemental Indenture, dated as of August 20, 1997 among the Company, Sun
and the Trustee (together, the "Indenture").
In connection with the issuance of the Notes, the Company and
Lehman Brothers International have also entered into the Company Purchase
Option, dated as of May 14, 1998 pertaining to the Notes (the "Company
Purchase Option"), pursuant to which the Company and Lehman Brothers
International have certain rights in respect of the Notes.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-3 (File No. 333-14595) relating to the debt
securities of the Company with an aggregate offering price of $225,000,000 filed
with the Securities and Exchange Commission (the "Commission") on October 22,
1996 under the Securities Act of 1933, as amended (the "Securities Act"), in
accordance with procedures of the Commission permitting a delayed or continuous
offering of securities pursuant to such registration statement (the
"Registration Statement"); (ii) the Prospectus, dated October 30, 1996, the
related Prospectus Supplement, dated August 20, 1997 and the related Pricing
Supplement, dated May 7, 1998, in the forms filed with the Commission pursuant
to Rule 424(b) of the General Rules and Regulations promulgated under the
Securities Act ("Rule 424(b)") (such Prospectus, as so supplemented by the
Prospectus Supplement and the Pricing Supplement, being hereinafter referred to
as the "Prospectus"); (iii) the documents incorporated by reference in the
Prospectus to the date of the Pricing Supplement (the "Incorporated
Documents"); (iv) an executed copy of the indenture; (v) the form of the Fixed
Rate Note; (vi) an executed copy of the Distribution Agreement; (vii) the
Medium-Term Notes, Series A Administrative Procedures attached as Exhibit B to
the Distribution Agreement (the "Administrative Procedures"); (viii) the
Certificate of Limited Partnership of the Company, as amended and presently in
effect; (ix) the Certificate of Incorporation and By-Laws of Sun, as presently
in effect; (x) resolutions of the Board of Directors of Sun (the "Board") duly
called and held on July 28, 1997; (xi) the Certificate, dated May 14, 1998, of
the Chief Executive Officer and President, and the Senior Vice President,
Treasurer, Chief Financial Officer and Secretary of Sun pursuant to Sections
102 and
<PAGE> 3
Sun Communities Operating
Limited Partnership
Lehman Brothers Inc.
May 14, 1998
Page 3
303 of the Indenture and (xii) the Certificate, dated May 14, 1998, of the Chief
Executive Officer and President, and the Senior Vice President, Treasurer, Chief
Financial Officer and Secretary of Sun pursuant to Section 5(f) of the
Distribution Agreement. As used herein, the term "Company Documents" shall refer
collectively to the Indenture, the Distribution Agreement, the Purchase
Agreement, the form of the Fixed Rate Note, the Company Purchase Option and
the Calculation Agency Agreement.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. We have
further assumed that neither the execution and delivery by the Company of the
Company Documents to which it is a party, nor the performance by the Company of
its obligations thereunder, contravenes or conflicts with (i) any law, rule or
regulation binding upon it, (ii) any agreement or instrument (other than the
Company Documents) to which it is a party or by which its properties or assets
are bound or (iii) any judicial or admin istrative judgment, injunction, order
or decree that is binding upon it or its properties or assets. As to any facts
material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and others,
and our opinions rendered herein with respect to such matters are subject to the
assumptions, exceptions and qualifications noted therein.
In rendering our opinion, we have also considered and relied
upon the Internal Revenue Code of 1986, as amended (the "Code"), administrative
rulings, judicial decisions, regulations, and such other authorities (including
Treasury regulations) as we have deemed appropriate. The statutory provisions,
regulations, interpretations
<PAGE> 4
Sun Communities Operating
Limited Partnership
Lehman Brothers Inc.
May 14, 1998
Page 4
and other authorities upon which our opinion is based are subject to change, and
such changes could apply retroactively. In addition, there can be no assurance
that positions contrary to those stated in our opinion will not be taken by the
Internal Revenue Service.
Based upon and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that the
statements in the Pricing Supplement under the heading "Certain United States
Federal Income Tax Considerations", to the extent that they constitute matters
of law or legal conclusions with respect thereto, have been prepared by us and
are correct in all material respects.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Except for the opinions expressed above, we express no opinion
as to any other tax consequences of the transaction to any party under federal,
state, local, or foreign laws. This opinion addresses the legal consequences of
only the facts existing or assumed as of the date hereof. Further, this opinion
is being furnished to you solely for your benefit and is not to be used,
circulated, quoted, or otherwise referred to for any purpose without our prior
written consent in each instance, except that you may refer to this opinion in
connection with the Pricing Supplement under the heading "Certain United States
Federal Income Tax Considerations." We disclaim any obligation to update this
opinion letter for events occurring or coming to our attention after the date
hereof.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom LLP
