OPINION LETTER
Published on October 9, 1997
[LATHAM & WATKINS LETTERHEAD]
October 8, 1997
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042
Re: $442,000,000 Aggregate Offering Price of
Securities of Kimco Realty Corporation
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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 $442,000,000 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").
Kimco Realty Corporation
October 8, 1997
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.
Kimco Realty Corporation
October 8, 1997
Page 3
3. The Company has the authority pursuant to its Articles of
Amendment and Restatement to issue up to 5,000,000 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 100,000,000 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
Kimco Realty Corporation
October 8, 1997
Page 4
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.
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.
Kimco Realty Corporation
October 6, 1997
Page 5
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,