OPINION OF LATHAM & WATKINS
Published on July 11, 1996
LATHAM & WATKINS
July 11, 1996
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042
Re: $332,362,250 Aggregate Offering Price of
Securities of Kimco Realty Corporation
Ladies and Gentlemen:
We are acting as counsel for Kimco Realty Corporation (the "Company")
in connection with the registration statement on Form S-3 (the "Registration
Statement") being filed by you with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, relating to the
offering from time to time, as set forth in the prospectus contained in the
Registration Statement (the "Prospectus") and as to be set forth in one or more
supplements to the Prospectus (each a "Prospectus Supplement"), by the Company
of up to $332,362,250 aggregate offering price of (i) one or more series of
debt securities (the "Debt Securities"), (ii) one or more classes or series of
shares of preferred stock, par value $1.00 per share (the "Preferred Stock"),
(iii) shares of Preferred Stock represented by Depositary Shares (the
"Depositary Shares"), (iv) shares of common stock, par value $.01 per share
(the "Common Stock"), or (v) warrants to purchase Common Stock (the "Common
Stock Warrants"). The Debt Securities, Preferred Stock, Depositary Shares,
shares of Common Stock and Common Stock Warrants are collectively referred to
as the "Securities." Any Debt Securities and Preferred Stock may be
convertible into shares of Common Stock.
The Debt Securities will be issued pursuant to the indenture dated
September 1, 1993 (the "Indenture") between the Company and IBJ Schroder Bank
and Trust Company, as trustee (the "Trustee"). The Depositary Shares will be
issued under one or more Deposit Agreements (each, a "Deposit Agreement"), each
to be between the Company and a financial institution identified therein as the
depositary (each, a "Depositary"). The Common Stock Warrants will be issued
under one or more common stock warrant agreements (each, a "Warrant
Agreement"), each to be between the Company and a financial institution
identified therein as warrant agent (each, a "Warrant Agent").
LATHAM & WATKINS
Kimco Realty Corporation
July 11, 1996
Page 2
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization and issuance of the Securities
and, for the purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
We have been furnished with, and with your consent have relied upon,
certificates of officers of the Company with respect to certain factual
matters. In addition, we have obtained and relied upon such certificates and
assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject transaction
only of the federal laws of the United States and the internal laws of the
State of New York, and we express no opinion with respect to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction or as to
any matters of municipal law or the laws of any local agencies within any
state. With respect to the opinions set forth in paragraphs 1, 3 and 6 below,
we have relied, with your permission, solely upon the opinion of Ballard Spahr
Andrews & Ingersoll insofar as such opinions are based on Maryland law.
Subject to the foregoing and the other matters set forth herein, it
is our opinion that, as of the date hereof:
1. The Indenture has been duly and validly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery by the Trustee) constitutes the legally valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms.
2. When the Debt Securities have been duly established by the
Indenture (including, without limitation, the adoption by the Board of
Directors of the Company of a resolution duly authorizing the issuance and
delivery of the Debt Securities), duly authenticated by the Trustee and
duly executed and delivered on behalf of the Company against payment
therefor in accordance with the terms and provisions of the Indenture and
as contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, the Debt Securities will constitute legally valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
LATHAM & WATKINS
Kimco Realty Corporation
July 11, 1996
Page 3
3. The Company has the authority pursuant to its Articles of
Amendment and Restatement to issue up to 930,000 shares of Preferred
Stock. When a series of Preferred Stock has been duly established in
accordance with the terms of the Company's Articles of Amendment and
Restatement and applicable law, and upon adoption by the Board of
Directors of the Company of a resolution in form and content as required
by applicable law and upon issuance and delivery of and payment for such
shares in the manner contemplated by the Registration Statement and/or the
applicable Prospectus Supplement and by such resolution, such shares of
such series of Preferred Stock will be validly issued, fully paid and
nonassessable.
4. A Deposit Agreement (when the final terms thereof have been duly
established) substantially in the form of Exhibit 4(i) to the Registration
Statement, when duly authorized, executed and delivered by the Company,
will constitute the legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
5. The Depositary Shares have been duly authorized and, when the
final terms thereof have been duly established, and when the depositary
receipts representing the Depositary Shares (the "Depositary Receipts") in
the form contemplated and authorized by a Deposit Agreement have been duly
executed and delivered by the Depositary and delivered to and paid for by
the purchasers thereof in the manner contemplated by the Registration
Statement and/or the applicable Prospectus Supplement, and when all
corporate action necessary for the issuance of such Depositary Shares and
the underlying Preferred Stock has been taken, such Depositary Shares will
be validly issued and will entitle the holders thereof to the rights
specified in the Depositary Receipts and such Deposit Agreement for such
Depositary Receipts.
6. The Company has authority pursuant to its Articles of Amendment
and Restatement to issue up to 50,000,000 shares of Common Stock. Upon
adoption by the Board of Directors of the Company of a resolution in form
and content as required by applicable law and upon issuance and delivery
of and payment for such shares in the manner contemplated by the
Registration Statement and/or the applicable Prospectus Supplement and by
such resolution, such shares of Common Stock will be validly issued, fully
paid and nonassessable.
The opinions set forth above are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or law, the discretion of the court
before which any proceeding therefor may be brought; (iii) the unenforceability
under certain circumstances under law or court decisions of provisions
providing for the indemnification of or contribution to a party with respect to
a liability where such indemnification or contribution is contrary to public
policy; (iv) we express no opinion concerning the enforceability of the waiver
of rights or defenses contained in Section 514 of the Indenture; and (v) we
express no opinion with respect to whether acceleration of Debt Securities may
affect the collectibility of any portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon.
LATHAM & WATKINS
Kimco Realty Corporation
July 11, 1996
Page 4
To the extent that the obligations of the Company under the Indenture
may be dependent upon such matters, we assume for purposes of this opinion 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
legal, valid and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms; that the Trustee is in compliance,
generally and 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 each
Depositary Agreement may be dependent upon such matters, we assume for purposes
of this opinion that the Depositary is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization; that the
Depositary is duly qualified to engage in the activities contemplated by the
Depositary Agreement; that the Depositary Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes the legal, valid and
binding obligation of the Depositary, enforceable against the Depositary in
accordance with its terms; that the Depositary is in compliance, generally and
with respect to acting as a Depositary under the Depositary Agreement, with all
applicable laws and regulations; and that the Depositary has the requisite
organizational and legal power and authority to perform its obligations under
the Depositary Agreement.
To the extent that the obligations of the Company under each Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the 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 legal, 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, generally
and 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.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the prospectus included therein.
This opinion is rendered only to you and is solely for your benefit
in connection with the transactions covered hereby. This opinion may not be
relied upon by you for any other purpose, or furnished to, quoted to, or relied
upon by any other person, firm or corporation for any purpose, without our
prior written consent.
Very truly yours,
/s/ Latham & Watkins