EXHIBIT 8
Published on May 1, 2001
EXHIBIT 8
[Latham & Watkins Letterhead]
April 30, 2001
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042
Re: $750,000,000 Aggregate Offering Price of debt securities,
preferred stock, depositary shares, common stock and
common stock warrants (collectively "Securities") of
Kimco Realty Corporation (the "Company")
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Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") being filed by you on May 1, 2001 with the Securities
and Exchange Commission, in connection with the registration of the Securities
under the Securities Act of 1933, as amended, you have requested our opinion
concerning the statements in the Registration Statement under the caption
"Material Federal Income Tax Considerations To Us Of Our REIT Election."
This opinion is based on various facts and assumptions, and is
conditioned upon certain representations made by the Company as to factual
matters through a certificate of an officer of the Company (the "Officer's
Certificate"). In addition, this opinion is based upon the factual
representations of the Company concerning its business, properties and governing
documents as set forth in the Registration Statement.
In our capacity as counsel to the Company, 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 other instruments as we have deemed
necessary or appropriate for purposes of this opinion. In our examination, we
have assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures thereon, the legal capacity of natural persons
executing such documents and the conformity to authentic original documents of
all documents submitted to us as copies. For the purpose of our opinion, we have
not made an independent investigation, or audit of the facts set forth in the
above-referenced documents or in the Officer's Certificate. In addition, in
rendering this opinion we have assumed the truth and accuracy of all
representations and statements made to us which are qualified as to knowledge or
belief, without regard to such qualification.
We are opining herein as to the effect on the subject
transaction only of the federal income tax laws of the United States and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of other federal laws, the laws of any state or any other jurisdiction
or as to any matters of municipal law or the laws of any other local agencies
within any state.
Based on such facts, assumptions and representations and
subject to the limitations set forth in the Registration Statement, the
statements in the Registration Statement under the caption "Material Federal
Income Tax Considerations To Us Of Our REIT Election" are the opinion of Latham
& Watkins as to the material federal income tax considerations to the Company of
its election to be a "real estate investment trust" as defined in the Code.
No opinion is expressed as to any matter not discussed herein.
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This opinion is rendered to you as of the date of this letter,
and we undertake no obligation to update this opinion subsequent to the date
hereof. This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation or
difference in the facts from those set forth in the representations described
above, including in the Registration Statement or the Officer's Certificate may
affect the conclusions stated herein. Moreover, the Company's qualification and
taxation as a real estate investment trust depends upon the Company's ability to
meet, through actual annual operating results, asset diversification,
distribution levels and diversity of stock ownership, the various qualification
tests imposed under the Code, the results of which have not been and will not be
reviewed by Latham & Watkins. Accordingly, no assurance can be given that the
actual results of the Company's operation for any one taxable year will satisfy
such requirements.
This opinion is furnished to you, and is for your use in
connection with the transactions set forth in the Registration Statement. 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. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and to the use of our
name under the caption "Legal Matters" in the Registration Statement.
Very truly yours,
/s/ Latham & Watkins
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