-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HH+ZzvtkbxR7TKeCpEKpa18CXBmY/HCE7gPN9ZQzsZh9HTqUy4uUFIS3Dm7S2Wvu fIY7JQt3i+vcQwKaPBqxLQ== 0001029869-97-001187.txt : 19971016 0001029869-97-001187.hdr.sgml : 19971016 ACCESSION NUMBER: 0001029869-97-001187 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19971015 ITEM INFORMATION: FILED AS OF DATE: 19971015 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERKSHIRE REALTY CO INC /DE CENTRAL INDEX KEY: 0000869446 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 043086485 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-10660 FILM NUMBER: 97696229 BUSINESS ADDRESS: STREET 1: 470 ATLANTIC AVE CITY: BOSTON STATE: MA ZIP: 02210 BUSINESS PHONE: 6174232233 MAIL ADDRESS: STREET 1: 470 ATLANTIC AVE CITY: BOSTON STATE: MA ZIP: 02210 8-K 1 BERKSHIRE REALTY COMPANY, INC. FORM 8-K 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): October 15, 1997 Berkshire Realty Company, Inc. ---------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 1-10660 04-3086485 -------- ------- ---------- (State of incorporation (Commission (IRS Employer or organization) File Number) Identification No.) 470 Atlantic Avenue, Boston, MA 02210 ----------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (617) 423-2233 ---------------- N/A -------------------------------------------------------------- (Former name or former address, if changed since last report.) Item 7. Financial Statements and Exhibits. --------------------------------- (c) Exhibits. The following exhibits are filed herewith. *1. Underwriting Agreement between Berkshire Realty Company, Inc. and Lehman Brothers, Inc., as representative of the Co-Managers dated __________. 8. Opinion of Peabody & Brown as to tax matters 23.1 Consent of Coopers & Lybrand LLP 23.2 Consent of KPMG Peat Marwick LLP 23.3 Consent of M/PF Research, Inc. 23.4 Consent of Peabody & Brown (included in Exhibit 8) -------------- * To be filed by amendment EXHIBIT INDEX Exhibit No. Exhibit Item - ----------- --------------------------------------------------------------- *1. Underwriting Agreement between Berkshire Realty Company, Inc. and Lehman Brothers, Inc., as representative of the Co-Managers dated __________. 8. Opinion of Peabody & Brown as to tax matters 23.1 Consent of Coopers & Lybrand LLP 23.2 Consent of KPMG Peat Marwick LLP 23.3 Consent of M/PF Research, Inc. 23.4 Consent of Peabody & Brown (included in Exhibit 8) - -------------- * To be filed by amendment EX-8 2 OPINION RE: TAX MATTERS PEABODY & BROWN A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 101 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1832 (617) 345-1000 -------- WRITER'S DIRECT DIAL NUMBERS FAX: (617) 345-1300 MANCHESTER, NH -------- PROVIDENCE, RI WASHINGTON, DC http://www.peabodybrown.com October 14, 1997 Berkshire Realty Company, Inc. 470 Atlantic Avenue Boston, MA 02210 Lehman Brothers A.G. Edwards & Sons, Inc. BT Alex. Brown Legg Mason Wood Walker Incorporated Salomon Brothers Inc. as Co-Managing Underwriters c/o Lehman Brothers Three World Financial Center New York, NY 10285 Re: Registration Statement on Form S-3 ---------------------------------- Gentlemen: We have acted as counsel to Berkshire Realty Company, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-3 (the "Registration Statement") filed under the Securities Act of 1933, as amended (the "Securities Act"), for the purposes of registering up to an aggregate of $400,000,000 of Offered Securities as that term is defined in the Registration Statement. The Company has requested our opinion as to the Company's qualification for federal income tax purposes as a real estate investment trust (a "REIT") pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code"), and the accuracy of the statements in the Registration Statement set forth under the caption FEDERAL INCOME TAX CONSIDERATIONS. In connection with the opinions rendered below, we have examined the following documents: PEABODY & BROWN Berkshire Realty Company, Inc. Lehman Brothers A.G. Edwards & Sons, Inc. BT Alex. Brown Legg Mason Wood Walker Incorporated Salomon Brothers Inc. October 14, 1997 Page 2 1. the Registration Statement and the Prospectus filed therewith and all exhibits thereto; 2. the Supplement to the Prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933 (the Prospectus, as supplemented by the Supplement, shall be referred to herein as the Prospectus); 3. a copy of the Company's Restated Certificate of Incorporation, as amended to date; 4. a copy of the Company's Bylaws; and 5. such other documents as we have deemed necessary or appropriate for purposes of this opinion. We have reviewed the Registration Statement, including the Prospectus and the Prospectus Supplement, and the descriptions set forth therein of the Company and its investments and activities. We have relied upon the representations of the Company and its affiliates and certain officers thereof (including, without limitation, representations contained in a Certificate of Company and Berkshire Apartments, Inc. dated as of this date) regarding the manner in which the Company and BRI OP Limited Partnership, A Delaware limited partnership (the "Operating Partnership") have been and will continue to be owned and operated. We have not independently investigated or verified all of such representations; however, during the course of our representation, nothing has come to our attention which would cause us to question the accuracy of such representations. We, therefore, assume that such representations are true, correct and complete and that all representations made "to the best of the knowledge and belief" of any person(s) or party(ies) are and will be true, correct and complete as if made without such qualification. We assume that the Company and the Operating Partnership have been and will be operated in accordance with applicable laws and the terms and conditions of applicable documents, and that the descriptions of the Company and its investments and the proposed investments, activities, operations and governance of the Company and the Operating Partnership set forth in the Registration Statement continue to be true. In addition, we have relied on certain additional facts and assumptions described below. PEABODY & BROWN Berkshire Realty Company, Inc. Lehman Brothers A.G. Edwards & Sons, Inc. BT Alex. Brown Legg Mason Wood Walker Incorporated Salomon Brothers Inc. October 14, 1997 Page 3 In examining all documents, we have assumed the genuineness of all signatures thereon, the accuracy of all statements contained therein, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents furnished to us as certified or photographic copies, and the completeness of all documents furnished to us. We have also assumed the legal capacity (as distinct from authority) and competency of any individual who has signed any instrument referred to herein. With respect to the latter assumption, nothing has come to our attention giving us reasonable grounds to question the correctness of such assumption. The discussion and conclusions set forth below are based upon the Code, the Income Tax Regulations and Procedure and Administration Regulations promulgated thereunder and existing administrative and judicial interpretations thereof, all of which are subject to change. No assurance can therefore be given that the federal income tax consequences described below will not be altered in the future. Capitalized terms used and not defined herein shall have the meanings stated in the Prospectus. Based upon and subject to the foregoing, we are of the opinion that: 1. Commencing with its taxable year ended December 31, 1991, Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and the proposed method of operation by the Company and the Operating Partnership, as described in the representations referred to above, will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code. 2. The statements in the Registration Statement set forth under the caption FEDERAL INCOME TAX CONSIDERATIONS, to the extent such information constitutes matters of law, summaries of legal matters, or legal conclusions, have been reviewed by us and are accurate in all material respects. We express no opinion with respect to the transactions described in the Registration Statement other than those expressly set forth herein. You should recognize that our opinions are not binding on the IRS and that the IRS may disagree with the opinions contained herein. Although we believe that our opinions will be sustained if challenged, there can be no assurance that this will be the case. Except as specifically discussed above, the opinions expressed herein are based upon the law as it currently exists. Consequently, future changes in the law may cause the federal income tax treatment of the transactions described herein to be materially and adversely different from that described above. PEABODY & BROWN Berkshire Realty Company, Inc. Lehman Brothers A.G. Edwards & Sons, Inc. BT Alex. Brown Legg Mason Wood Walker Incorporated Salomon Brothers Inc. October 14, 1997 Page 4 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933 Act, as amended, or the rules and regulations promulgated thereunder by the Securities and Exchange Commission. The foregoing opinions are limited to the federal income tax matters addressed herein, and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any state, locality or foreign country. We undertake no obligation to update the opinions expressed herein after the date of this letter. This opinion letter is solely for the information and use of the addressee and may not be relied upon for any purpose by any other person without our express written consent. Very truly yours, /s/ PEABODY & BROWN PEABODY & BROWN EX-23.1 3 CONSENTS OF EXPERTS AND COUNSEL [Coopers & Lybrand Letterhead] CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of Berkshire Realty Company, Inc. and Subsidiaries (the "Company") on Form S-3 (File No. 333-32565) of our report dated February 13, 1997, except for Note Q, for which the date is February 28, 1997, on our audit of the consolidated financial statements and financial statement schedules of the Company. We also consent to the references to our firm under the caption "Experts". /s/ Coopers & Lybrand LLP Coopers & Lybrand LLP Boston, Massachusetts October 14, 1997 EX-23.2 4 CONSENT OF INDEPENDENT AUDITORS Consent of Independent Auditors ------------------------------- We consent to the inclusion of our report dated October 3, 1997, with respect to the combined statement of revenue over certain operating expenses of the Citibank Portfolio for the year ended December 31, 1996, which report appears in the Form 8-K of Berkshire Realty Company, Inc. dated October 15, 1997. /s/ KPMG Peat Marwick LLP KPMG Peat Marwick LLP Houston, Texas October 3, 1997 EX-23.3 5 CONSENT OF M/PF RESEARCH, INC. CONSENT M/PF Research, Inc. hereby consents to the use of its market research reports regarding national, regional, individual market and submarket economic conditions and the references to the firm and such reports under the caption "Market Information" in the Registration Statement on Form S-3 of Berkshire Realty Company, Inc. By: /s/ G. Ronald Witten --------------------------------- Name: G. Ronald Witten Title: President Date: October 14, 1997 -----END PRIVACY-ENHANCED MESSAGE-----