EXHIBIT 8.2
[LETTERHEAD OF BROWN & WOOD LLP]
May 13, 1998
Kimco Realty Corporation
3333 New Hyde Park Road
Suite 100
New Hyde Park, NY 11042
Re: Registration Statement on Form-S-4
Ladies and Gentlemen:
We are acting as special counsel to Kimco Realty Corporation, a Maryland
corporation ("Kimco"), in connection with the Joint Proxy Statement and
Prospectus, including the Registration Statement on Form S-4 (the "Merger
Registration Statement"), relating to the proposed merger of The Price REIT, a
Maryland corporation ("Price"), with and into REIT Sub, Inc., a Maryland
corporation and a wholly-owned subsidiary of Kimco ("Merger Sub"), pursuant to
the Agreement and Plan of Merger dated as of January 13, 1998, as amended, among
Kimco, Merger Sub and Price. You have requested our opinion as to certain
federal income tax matters set forth in the Merger Registration Statement under
the heading "Federal Income Tax Consequences."
The facts, as we understand them, are set forth in the Merger Registration
Statement and exhibits thereto to be filed with the Securities and Exchange
Commission. In addition, we will receive certain representations from Kimco and
Price REIT at the Effective Time (as defined in the Merger Registration
Statement).
Based on such facts and representations, we hereby confirm the opinion set
forth under the caption "Federal Income Tax Consequences--Federal Income Tax
Consequences of the Merger" in the Proxy Statement included in the Merger
Registration Statement.
Such opinion and the Proxy Statement discussion set forth under the caption
"Federal Income Tax Consequences" do not address all aspects of federal income
taxation that may be relevant to particular Kimco stockholders in light of their
personal investment circumstances, or to certain types of stockholders subject
to special treatment under the federal income tax laws, including, without
limitation, insurance companies, tax-exempt organizations, financial
institutions or broker-dealers and foreign persons.
Such opinion and the discussion under the caption "Federal Income Tax
Consequences" is based on current provisions of the Internal Revenue Code of
1986, as amended, applicable Treasury Regulations, judicial authority and
administrative rulings and practice, all of which are subject to change either
prospectively or retroactively. Also, any variation or difference in the facts
or representations as referred to herein might affect the conclusion stated
herein.
We consent to the use of this opinion as an exhibit to the Merger
Registration Statement and to the use of our name under the caption "Federal
Income Tax Consequences" in the Proxy Statement included in the Merger
Registration Statement.
Very truly yours,
/s/ Brown & Wood LLP
OFFICER'S CERTIFICATE FOR KIMCO REALTY
CORPORATION REGARDING THE MERGER
OF THE PRICE REIT, INC. WITH AND INTO
REIT SUB, INC., A WHOLLY-OWNED
SUBSIDIARY OF KIMCO REALTY
CORPORATION
MAY 13, 1998
This Officer's Certificate is given in connection with the opinion to be
delivered by you pursuant to the Agreement and Plan of Merger (the "Merger
Agreement") dated as of January 13, 1998, as amended on March 5, 1998 and May
14, 1998, of The Price REIT, Inc. a Maryland corporation ("Price"), with and
into REIT Sub, Inc. ("Merger Sub"), a Maryland corporation and a wholly-owned
subsidiary of Kimco Realty Corporation ("Kimco"), a Maryland corporation. Unless
otherwise indicated, capitalized terms not defined herein have the meaning set
forth in the Merger Agreement.
I, Michael V. Pappagallo, Chief Financial Officer of Kimco, hereby
certify that, to the best of my knowledge and belief, each of the following
statements is true and correct and will be true and correct at the Effective
Time of the Merger. I understand that the following representations form the
basis of the opinions of Brown & Wood LLP and Gibson, Dunn & Crutcher LLP that
are attached as exhibits to and described in the Joint Proxy Statement and
Prospectus, included in the Registration Statement on Form S-4, relating to the
Merger (the "Merger Registration Statement"), and any change or inaccuracy in
the facts described herein could adversely alter such opinion.
1.The facts relating to the contemplated merger (the "Merger") of
Price with and into Merger Sub pursuant to the Merger Agreement,
as described in the Merger Agreement, the documents described in
the Merger Agreement and the Merger Registration Statement, are,
insofar, as such facts pertain to Kimco, true, correct and
complete in all material respects.
2.Except in the Merger, neither Kimco nor any subsidiary of Kimco
has acquired or will acquire, or has owned in the past five
years, any shares of Price Common Stock.
3.Cash payments to be made to stockholders of Price in lieu of
fractional shares of Kimco Common Stock or Kimco Class D
Depositary Shares ("Merger Consideration") that would otherwise
be issued to such stockholders in the Merger will be made for
the purpose of saving Kimco the expense and inconvenience of
issuing and transferring fractional shares of Merger
Consideration, and does not represent separately bargained for
consideration.
4.The fair market value of the Merger Consideration received by
each Price stockholder will be approximately equal to the fair
market value of the Price Common Stock surrendered in the
Merger.
5.Kimco has no plan or intention to reacquire any of the Merger
Consideration issued in the Merger.
6.Following the Merger, Kimco and/or Merger Sub will continue the
historic business of Price or will use a significant portion of
Price's historic business assets in its business.
7.Price, Kimco, Merger Sub and the stockholders of Price will pay
their respective expenses, if any, incurred in connection with
the Merger.
8.There is no intercorporate indebtedness existing between Price
and Kimco or Price and Merger Sub that was issued, acquired or
will be settled at a discount.
9. Kimco is not a corporation 50 percent or more of the value of
whose total assets are stock and securities and 80 percent or
more of the total value whose total assets are held for
investment, determined as provided in Section 368(a)(1)(F)(iii)
of the Code.
10. Kimco has owned 100 percent of the stock of Merger Sub at all
times during the period of time Merger Sub has been in
existence.
11.Kimco is not under the jurisdiction of a court in a title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the
Code.
12. Kimco will not take any position on any federal, state, or local
income or franchise tax return, or take any other action or
reporting position, that is inconsistent with the treatment of
the Merger as a reorganization within the meaning of Section
368(a) of the Code or with the representations made in this
letter, unless otherwise required by a "determination" (as
defined in Section 1313(a)(1) of the Code).
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13.The Merger Agreement represents the entire understanding of
Price, Kimco and Merger Sub with respect to the Merger.
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Michael V. Pappagallo
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4. Price REIT, Kimco, Merger Sub, and the shareholders of Price REIT
will pay their respective expenses, if any, incurred in connection with the
Merger;
5. There is no intercorporate indebtedness existing between Price
REIT and Kimco or between Price REIT and Merger Sub that was issued, acquired,
or will be settled at a discount as a result of the Merger;
6. Price REIT is not under the jurisdiction of a court in a Title 11
or similar case within the meaning of Section 368(a)(3)(A) of the Code;
7. None of the compensation received by any shareholder-employee of
Price REIT will be separate consideration for, or allocable to, any of their
Price REIT stock. None of the Kimco Common Stock and Class D Depositary Shares
received by any shareholder-employee of Price REIT will be separate
consideration for, or allocable to, any employment agreement or any covenants
not to compete, and the compensation paid to any shareholder-employee of Price
REIT will be for services actually rendered and will be commensurate with
amounts paid to third parties bargaining at arm's length for similar services;
8. Price REIT has not made (nor will it make prior to the Effective
Time) any distributions, redemptions, or other payments in respect of stock of
Price REIT or in respect of rights to acquire such stock that are in
contemplation of the Merger or that are related thereto, except for regular
and normal distributions that are consistent with amounts historically
distributed by Price REIT on an annual basis, including any distributions
required by Section 857(a) of the Code;
9. Price REIT has not disposed of any of its assets in contemplation
of the Merger (including any distribution of assets with respect to, or in
redemption of, Price REIT Common Stock);
10. Price REIT's reasons for participating in the Merger are bona
fide business purposes unrelated to taxes;
11. The factual information set forth in the Merger Registration
Statement is true, correct, and complete in all material respects;
12 The fair market value of the assets of Price REIT will, at the
Effective Time of the Merger, equal or exceed the aggregate liabilities of
Price REIT plus the amount of liabilities, if any, to which such assets are
subject; and
13. The undersigned is authorized to make all of the representations
set forth herein.
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It is understood that (i) your opinion will be based on the
representations set forth herein, the information set forth in the Merger
Registration Statement, and on the statements, representations, and warranties
set forth in the Merger Agreement (including all schedules and exhibits
thereto), and (ii) your opinion will be subject to certain limitations and
qualifications including that it may not be relied upon if any such
representations, statements, and information are not true, correct, and
complete. It is further understood that your opinion will not address any tax
consequence of the Merger or any action taken in connection therewith except
as expressly set forth in such opinion.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate on the 13th day of May, 1998.
----------------------------------
George M. Jezek,
Executive Vice President,
Chief Financial Officer,
Treasurer, Secretary and
Director of Price REIT
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