EXHIBIT 5
[Venable LLP Letterhead]
September 27, 2004
Kimco Realty Corporation
3333 New Hyde Park Road
P.O. Box 5020
New Hyde Park, New York 11042
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to Kimco Realty
Corporation, a Maryland corporation (the "Company"), in connection with certain
matters of Maryland law arising out of the registration by the Company of
2,635,046 shares (the "Shares") of common stock, par value $0.01 per share, of
the Company (the "Common Stock"), covered by the Registration Statement on Form
S-4, substantially in the form to be filed by the Company with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "1933 Act"), including the related form of prospectus
(collectively, the "Registration Statement"). The Shares may be issued by the
Company to holders of limited partnership units of Kimco Westlake, L.P., a
California limited partnership, upon the conversion of up to 2,383,080 limited
partnership units tendered by the limited partners pursuant to the Agreement of
Limited Partnership of Kimco Westlake, L.P., dated as of October 22, 2002 (the
"Partnership Agreement").
In connection with our representation of the Company, and as a
basis for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement;
2. The Partnership Agreement;
3. The Registration Rights Agreement, dated October 22, 2002,
by and between the Company and Westlake Development Company, Inc. (the
"Registration Rights Agreement");
4. The charter of the Company (the "Charter"), certified as of
a recent date by the State Department of Assessments and Taxation of Maryland
(the "SDAT");
Kimco Realty Corporation
September 27, 2004
Page 2
5. The Bylaws of the Company, certified as of the date hereof
by an officer of the Company;
6. Resolutions adopted by the Board of Directors of the
Company relating to the issuance of the Shares, certified as of the date hereof
by an officer of the Company (the "Resolutions");
7. A certificate of the SDAT as to the good standing of the
Company, dated as of a recent date;
8. A certificate executed by an officer of the Company, dated
as of the date hereof; and
9. Such other documents and matters as we have deemed
necessary or appropriate to express the opinion set forth below, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the
following:
1. Each individual executing any of the Documents, whether on
behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of
a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any
of the Documents has duly and validly executed and delivered each of the
Documents to which such party is a signatory, and such party's obligations set
forth therein are legal, valid and binding and are enforceable in accordance
with all stated terms.
4. All Documents submitted to us as originals are authentic.
The form and content of all Documents submitted to us as unexecuted drafts do
not differ in any respect relevant to this opinion from the form and content of
such Documents as executed and delivered. All Documents submitted to us as
certified or photostatic copies conform to the original documents. All
signatures on all Documents are genuine. All public records reviewed or relied
upon by us or on our behalf are true and complete. All representations,
warranties, statements and information contained in the Documents are true and
complete. There has been no oral or written modification of or amendment to any
of the Documents, and there has been no waiver of any provision of any of the
Documents, by action or omission of the parties or otherwise.
Kimco Realty Corporation
September 27, 2004
Page 3
5. The Shares will not be issued in violation of the
restrictions on transfer and ownership contained in Article IV of the the
Charter.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in good standing
with the SDAT.
2. The Shares have been duly authorized and, when and if
issued and delivered in accordance with the Registration Statement, the
Registration Rights Agreement, the Partnership Agreement and the Resolutions,
the Shares will be (assuming that, upon issuance, the total number of shares of
Common Stock issued and outstanding will not exceed the total number of shares
of Common Stock that the Company is then authorized to issue) validly issued,
fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of
the State of Maryland and we do not express any opinion herein concerning any
other law. The opinion expressed herein is subject to the effect of judicial
decisions which may permit the introduction of parol evidence to modify the
terms or the interpretation of agreements. We express no opinion as to
compliance with the securities (or "blue sky") laws or the real estate
syndication laws of the State of Maryland.
We assume no obligation to supplement this opinion if any
applicable law changes after the date hereof or if we become aware of any fact
that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to the Company solely for
submission to the Commission as an exhibit to the Registration Statement. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of the name of our firm therein. In giving this
consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP