8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported) May 23, 2013

KIMCO REALTY CORPORATION

(Exact Name of Registrant as Specified in Charter)

Maryland	1-10899	13-2744380
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S Employer Identification No.)

3333 New Hyde Park Road, Suite 100
New Hyde Park, NY 11042

(Address of principal executive offices) (Zip Code)

Registrant’s Telephone Number, Including Area Code (516) 869-9000

Not Applicable

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

[_]

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[_]

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[_]

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01   Entry Into a Material Definitive Agreement

On May 23, 2013, Kimco Realty Corporation (“Kimco”) completed an underwritten public offering of $350 million in aggregate principal amount of its 3.125% Notes due 2023 (the “Notes”). The Notes are governed by the Indenture, dated as of September 1, 1993, as amended by the First Supplemental Indenture, dated as of August 4, 1994, the Second Supplemental Indenture, dated as of April 7, 1995, the Third Supplemental Indenture, dated as of June 2, 2006, the Fourth Supplemental Indenture, dated as of April 26, 2007, the Fifth Supplemental Indenture, dated as of September 24, 2009, the Sixth Supplemental Indenture, dated as of May 23, 2013, and as further amended or supplemented from time to time, between Kimco and The Bank of New York Mellon (as successor to IBJ Schroder Bank & Trust Company), as trustee. A copy of the Sixth Supplemental Indenture is attached hereto as Exhibit 4.1 and is incorporated by reference herein.

Item 9.01   Financial Statements and Exhibits

(d)

Exhibits

Exhibit No.	Description
4.1	Sixth Supplemental Indenture, dated May 23, 2013, between Kimco Realty Corporation and The Bank of New York Mellon, as trustee.
5.1(a)	Opinion of Latham & Watkins LLP, as to the legality of the 3.125% Notes due 2023, dated May 23, 2013.
5.1(b)	Opinion of Venable LLP, as to the legality of the 3.125% Notes due 2023, dated May 23, 2013.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	KIMCO REALTY CORPORATION
Date: May 23, 2013	By:	/s/ Glenn G. Cohen
		Name: Glenn G. Cohen Title:   Executive Vice President,             Chief Financial Officer and Treasurer

EXHIBIT INDEX

Exhibit No.	Description
4.1	Sixth Supplemental Indenture, dated May 23, 2013, between Kimco Realty Corporation and The Bank of New York Mellon, as trustee.
5.1(a)	Opinion of Latham & Watkins LLP, as to the legality of the 3.125% Notes due 2023, dated May 23, 2013.
5.1(b)	Opinion of Venable LLP, as to the legality of the 3.125% Notes due 2023, dated May 23, 2013.

EX-4.1

Exhibit 4.1

SIXTH SUPPLEMENTAL INDENTURE

dated as of May 23, 2013

between

KIMCO REALTY CORPORATION

and

THE BANK OF NEW YORK MELLON, as Trustee

__________________________________

SENIOR DEBT SECURITIES

of

KIMCO REALTY CORPORATION

__________________________________

THIS SIXTH SUPPLEMENTAL INDENTURE is entered into as of May 23, 2013 (the “Sixth Supplemental Indenture”), by and between Kimco Realty Corporation, a Maryland corporation (the “Company”), and The Bank of New York Mellon (as successor to IBJ Schroder Bank & Trust Company), a banking corporation organized under the laws of the State of New York, as trustee (the “Trustee”).

WHEREAS, Kimco Realty Corporation, a Delaware corporation and predecessor to the Company (the “Delaware Company”), and the Trustee entered into the Indenture dated as of September 1, 1993 (the “Original Indenture”), relating to the Delaware Company’s senior debt securities;

WHEREAS, the Company and the Trustee entered into the First Supplemental Indenture dated as of August 4, 1994 (the “First Supplemental Indenture”), pursuant to which the Company assumed all obligations of the Delaware Company under the Original Indenture pursuant to Section 801 of the Original Indenture;

WHEREAS, the Company and the Trustee entered into the Second Supplemental Indenture dated as of April 7, 1995 (the “Second Supplemental Indenture”), pursuant to which certain provisions of the Indenture were amended and certain additional provisions to the Indenture were added for the benefit of Holders of all series of Securities created on or after April 7, 1995 in accordance with Section 901 of the Indenture;

WHEREAS, the Company and the Trustee entered into the Third Supplemental Indenture dated as of June 2, 2006 (the “Third Supplemental Indenture”), pursuant to which certain provisions of the Indenture were amended and certain additional provisions to the Indenture were added for the benefit of Holders of all series of Securities created on or after June 2, 2006 in accordance with Section 901 of the Indenture;

WHEREAS, the Company and the Trustee entered into the Fourth Supplemental Indenture dated as of April 26, 2007 (the “Fourth Supplemental Indenture”), pursuant to which certain provisions of the Indenture were amended and certain additional provisions to the Indenture were added for the benefit of Holders of all series of Securities created on or after April 26, 2007 in accordance with Section 901 of the Indenture;

WHEREAS, the Company and the Trustee entered into the Fifth Supplemental Indenture dated as of September 24, 2009 (the “Fifth Supplemental Indenture” and, together with the Original Indenture, the First Supplemental Indenture, the Second Supplement Indenture, the Third Supplemental Indenture and the Fourth Supplemental Indenture, the “Indenture”), pursuant to which certain provisions of the Indenture were amended and certain additional provisions to the Indenture were added for the benefit of Holders of all series of Securities created on or after September 24, 2009 in accordance with Section 901 of the Indenture;

WHEREAS, the Company has made a request to the Trustee that the Trustee join with it, in accordance with Sections 301 and 901 of the Indenture, in the execution of this Sixth Supplemental Indenture to establish the terms of Securities of all series created on or after the date of this Sixth Supplemental Indenture as permitted by Section 201 and Section 901 of the Indenture; and

WHEREAS, the Company and the Trustee are authorized to enter into this Sixth Supplemental Indenture.

NOW, THEREFORE, the Company and the Trustee agree as follows:

Section 1.  Relation to Indenture.  This Sixth Supplemental Indenture amends and supplements the Indenture and shall be part and subject to all the terms thereof.  Except as amended and supplemented hereby, the Indenture and Securities issued thereunder shall continue in full force and effect.

Section 2.  Definitions.  Each term used herein which is defined in the Indenture has the meaning assigned to such term in the Original Indenture unless otherwise specifically defined herein, in which case the definition set forth herein shall govern.

Section 3.  Restrictions on Dividends and Other Distributions.  Notwithstanding anything to the contrary contained in the Fifth Supplemental Indenture, the Securities of all series created on or after the date of this Sixth Supplemental Indenture shall not be subject to Section 1005 of the Indenture.

Section 4.  Counterparts.  This Sixth Supplemental Indenture may be executed in counterparts, each of which shall be deemed an original, but all of which shall together constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the same counterpart.

Section 5. Trustee’s Acceptance.  The Trustee hereby accepts this Sixth Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.

Section 6.  Reference to the Effect on the Indenture.

(a)

On and after the effective date of this Sixth Supplemental Indenture, each reference in the Indenture to “this Indenture,“ “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this Sixth Supplemental Indenture unless the context otherwise requires.

(b)

Except as specifically modified or amended by this Sixth Supplemental Indenture, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. Upon the execution and delivery of this Sixth Supplemental Indenture by the Company and the Trustee, this Sixth Supplemental Indenture shall form a part of the Indenture for all purposes. Any and all references, whether within the Indenture or in any notice, certificate or other instrument or document, shall be deemed to include a reference to this Sixth Supplemental Indenture (whether or not made), unless the context shall otherwise require.

Section 7.  Governing Law.  THIS SIXTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).

Section 8. Trust Indenture Act Controls.  If any provision of this Sixth Supplemental Indenture limits, qualifies or conflicts with another provision of this Sixth Supplemental Indenture or the Indenture that is required to be included by the Trust Indenture Act of 1939, as amended (the “Act”), as in force at the date this Sixth Supplemental Indenture is executed, the provision required by the Act shall control.

Section 9.  Benefits of Sixth Supplemental Indenture or the Securities.  Nothing in this Sixth Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the Holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Sixth Supplemental Indenture or the Securities.

Section 10. Successors.  All agreements of the Company in this Sixth Supplemental Indenture shall bind its successors. All agreements of the Trustee in this Sixth Supplemental Indenture shall bind its successors.

Section 11.  Concerning the Trustee.  The Trustee shall not be responsible for any recital herein (other than the eighth recital as it applies to the Trustee) as such recitals shall be taken as statements of the Company, or the validity of the execution by the Company of this Sixth Supplemental Indenture.  The Trustee makes no representations as to the validity or sufficiency of this Sixth Supplemental Indenture.

Section 12.  Certain Duties and Responsibilities of the Trustee.  In entering into this Sixth Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.

Section 13.  Titles.  Section titles are for descriptive purposes only and shall not control or alter the meaning of this Sixth Supplemental Indenture as set forth in the text.

Section 14.  Severability.  In case any one or more of the provisions in this Sixth Supplemental Indenture shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

IN WITNESS WHEREOF, Kimco Realty Corporation has caused this Sixth Supplemental Indenture to be duly signed and acknowledged by its Chief Financial Officer hereunto duly authorized, and the same to be attested by its Secretary or Assistant Secretary and The Bank of New York Mellon has caused this Sixth Supplemental Indenture to be duly signed by one of its Vice Presidents thereunto duly authorized.

KIMCO REALTY CORPORATION,
a Maryland corporation
By:	/s/ Glenn G. Cohen
Name:	Glenn G. Cohen
Title:	Chief Financial Officer

Attest:
By:	/s/ Bruce Rubenstein
Name:	Bruce Rubenstein
Title:	Secretary

THE BANK OF NEW YORK MELLON,
as Trustee
By:	/s/ Francine Kincaid
Name:	Francine Kincaid
Title:	Vice President

[Signature Page to Sixth Supplemental Indenture]

EX-5.1(A)

Exhibit 5.1(a)

	555 Eleventh Street, N.W., Suite 1000 Washington, D.C.  20004-1304 Tel: +1.202.637 .2200  Fax: +1.202.637.2201 www.lw.com FIRM / AFFILIATE OFFICES
	Abu Dhabi	Moscow
	Barcelona	Munich
	Beijing	New Jersey
	Boston	New York
	Brussels	Orange County
	Chicago	Paris
May 23, 2013	Doha	Riyadh
	Dubai	Rome
	Frankfurt	San Diego
	Hamburg	San Francisco
	Hong Kong	Shanghai
	Houston	Silicon Valley
Kimco Realty Corporation	London	Singapore
3333 New Hyde Park Road	Los Angeles	Tokyo
New Hyde Park, New York 11042-0020	Milan

Re:

Kimco Realty Corporation

$350,000,000 Aggregate Principal Amount of 3.125% Notes due 2023

Ladies and Gentlemen:

We have acted as special counsel to Kimco Realty Corporation, a Maryland corporation (the “Company”), in connection with the issuance of $350,000,000 aggregate principal amount of 3.125% Notes due 2023 (the “Notes”), pursuant to (i) an indenture dated as of September 1, 1993, as amended by the First Supplemental Indenture, dated as of August 4, 1994, the Second Supplemental Indenture, dated as of April 7, 1995, the Third Supplemental Indenture, dated as of June 2, 2006, the Fourth Supplemental Indenture, dated as of April 26, 2007, the Fifth Supplemental Indenture, dated as of September 24, 2009 and the Sixth Supplemental Indenture, dated as of May 23, 2013 (collectively, the “Indenture”), between the Company and The Bank of New York Mellon (as successor to IBJ Schroder Bank & Trust Company), as trustee; (ii) an officers’ certificate dated May 23, 2013 setting forth the terms of the Notes; (iii) a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on April 19, 2012 (File No. 333-180833), as amended (the “Registration Statement”); (iv) a prospectus contained therein, dated April 19, 2012, as supplemented by a prospectus supplement, dated May 14, 2013, filed with the Commission pursuant to Rule 424(b) under the Act (together, the “Prospectus”); and (v) an underwriting agreement, dated May 14, 2013, among J.P. Morgan Securities LLC, Barclays Capital Inc., Morgan Stanley & Co. LLC and RBC Capital Markets, LLC, as representatives of the Underwriters and the Company, as supplemented by the Terms Agreement, dated May 14, 2013 (the “Underwriting Agreement”).  This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, other than as expressly stated herein with respect to the issue of the Notes.

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter.  With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.  We are opining herein as to 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.

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Notes have been duly executed, issued, and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in the circumstances contemplated by the Underwriting Agreement, the Notes will have been duly authorized by all necessary corporate action of the Company and will be legally valid and binding obligations of the Company enforceable against the Company in accordance with their terms.

May 23, 2013

Page 2

Our opinions are subject to:  (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought; (iii) the invalidity 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; and (iv) we express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty; (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief; (c) the waiver of rights or defenses contained in Section 514 of the Indenture; (d) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy; (e) any provision permitting, upon acceleration of the Notes, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon; and (f) the severability, if invalid, of provisions to the foregoing effect.  We express no opinion or confirmation as to federal or state securities laws, tax laws, antitrust or trade regulation laws, insolvency or fraudulent transfer laws, antifraud laws, compliance with fiduciary duty requirements, pension or employee benefit laws, usury laws, environmental laws, margin regulations, FINRA rules or stock exchange rules (without limiting other laws excluded by customary practice).

With your consent, we have assumed (i) that the Indenture and the Notes (collectively, the “Documents”) have been duly authorized, executed and delivered by the parties thereto other than the Company; (ii) that the Documents constitute legally valid and binding obligations of the parties thereto other than the Company, enforceable against each of them in accordance with their respective terms; and (iii) that the status of the Documents as legally valid and binding obligations of the parties is not affected by any (a) breaches of, or defaults under, agreements or instruments; (b) violations of statutes, rules, regulations or court or governmental orders; or (c) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.

This opinion is for your benefit in connection with the issuance of the Notes and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act.  We consent to your filing this opinion as an exhibit to the Company’s Form 8-K dated May 23, 2013 and to the reference to our firm contained in the Prospectus under the heading “Legal Matters.”  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Latham & Watkins LLP

EX-5.1(B)

Exhibit 5.1(b)

May 23, 2013

Kimco Realty Corporation

3333 New Hyde Park Road

New Hyde Park, New York 11042

Re:

3.125% Notes Due 2023

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 of $350,000,000 in aggregate principal amount of the Company’s 3.125% Notes Due 2023 (the “Notes”).  The Notes are covered by a Registration Statement on Form S-3 (File No. 333-180833), and all amendments related thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).  

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 and the related prospectus included therein in the form in which they were transmitted to the Commission under the 1933 Act;

2.

The Prospectus Supplement, dated May 14, 2013 (the “Prospectus Supplement”), in the form in which it was transmitted to the Commission under the 1933 Act;

3.

The charter of the Company, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

4.

The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;

5.

A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

6.

Resolutions adopted by the Board of Directors of the Company, and a duly authorized committee thereof, relating to, among other matters, the registration and issuance of the Notes, certified as of the date hereof by an officer of the Company;

7.

A certificate executed by an officer of the Company, dated as of the date hereof; and

8.

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.

Kimco Realty Corporation

May 23, 2013

Page 2

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.

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 validly existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.

2.

The issuance of the Notes has been duly authorized by all necessary corporate action on the part of the Company.

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law.  We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers.  To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.  The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated.  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 you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Notes (the “Current Report”), which is incorporated by reference in the Registration Statement.  We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm in the 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

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