Common use of Prudential Securities Incorporated Clause in Contracts

Prudential Securities Incorporated. Xxxxxxx Xxxxx & Associates, Inc............................... Total.............................................. 10,000,000 ========== Schedule 2 Form of Pricing Opinion Xxxxxx Brothers Inc. Three World Financial Center New York, New York 10285 XX Xxxxx Realty Corp. 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 PRICING OPINION Ladies and Gentlemen: XX Xxxxx Realty Corp., a Maryland corporation (the "COMPANY"), has filed with the Securities and Exchange Commission a registration statement on Form S-11 (Reg. No. 333-50309) relating to the offering of 10,000,000 shares of common stock (plus up to 1,500,000 shares of common stock subject to the underwriters' over-allotment option), par value $.01 per share (the "COMMON STOCK"). Xxxxxx Brothers Inc. ("XXXXXX") is acting as one of the several underwriters of the offering to the public of the Common Stock (the "OFFERING"). In connection with the Offering an affiliate of Xxxxxx will receive $240 million in net proceeds in repayment of amounts outstanding under a loan made to the Company. As a result, an affiliate of Xxxxxx, will receive more than 10% of the proceeds of the Offering. Although the Conduct Rules of the NASD exempt REITs from the conflict of interest provisions thereof, because Xxxxxx and certain of its affiliates will receive more than 10% of the net proceeds of the Offering, the underwriters have determined to conduct the Offering in accordance with the applicable provisions of Rule 2720 of the Conduct Rules. Accordingly, the public offering price can be no higher than that recommended by a "qualified independent underwriter" meeting certain standards. We have been retained as a Qualified Independent Underwriter to recommend to you the maximum offering price for the Common Stock as required by the NASD Conduct Rules. We have participated in the preparation of the Registration Statement and the Prospectus (as such terms are defined in the Underwriting Agreement) and have exercised the usual standards of "due diligence" with respect thereto. Assuming that the Offering is commenced on [________], 1998, we recommend that the offering price of the Common Stock be no higher than $[_______], which price should in no event be considered or relied upon as an indication of the actual value of the Common Stock. Our recommendations are based on economic, market, financial and other conditions as they exist at the date hereof and on other conditions and circumstances relating to the Company as described in the Registration Statement. Changes in the conditions and circumstances relating to the Company from those described in the Registration Statement and events occurring after the date hereof, including changes in the markets in which the Company operates, could materially affect the conclusions stated in this letter. We shall not be obligated or required to reaffirm or revise these recommendations or otherwise to comment on any events occurring after the date hereof or on any change to the conditions or circumstances relating to the Company from those so described. Very truly yours,

Prudential Securities Incorporated. Xxxxxxx Xxxxx & Associates, Inc............................... Total.............................................. 10,000,000 ========== . . . . . . . . . . . . . . . . . . . . . . 4,000,000 ---------- ---------- Schedule 2 Form of Pricing Opinion Xxxxxx Brothers Inc. Three World Financial Center New York, New York 10285 XX Xxxxx Realty Corp. 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 PRICING OPINION Ladies and Gentlemen: XX Xxxxx Realty Corp., a Maryland corporation (the "COMPANY"), has filed with the Securities and Exchange Commission a registration statement on Form S-11 (Reg. No. 333-5030950311) relating to the offering of 10,000,000 4,000,000 shares of common stock ___% Preferred Income Equity Redeemable SharesSM ("PIERS-SM-") (plus up to 1,500,000 600,000 shares of common stock PIERS subject to the underwriters' over-allotment option), par value $.01 per share (the "COMMON PREFERRED STOCK"). Xxxxxx Brothers Inc. ("XXXXXX") is acting as one of the several underwriters other underwriter of the offering to the public of the Common Preferred Stock (the "OFFERING"). In connection with the Offering an affiliate of Xxxxxx will receive $240 million in net proceeds in repayment of amounts outstanding under a loan made to the Company. As a result, an affiliate of Xxxxxx, will receive more than 10% of the proceeds of the Offering. Although the Conduct Rules of the NASD exempt REITs from the conflict of interest provisions thereof, because Xxxxxx and certain of its affiliates will receive more than 10% of the net proceeds of the Offering, the underwriters have determined to conduct the Offering in accordance with the applicable provisions of Rule 2720 of the Conduct Rules. Accordingly, the public offering price can be no higher than that recommended by a "qualified independent underwriter" meeting certain standards. We have been retained as a Qualified Independent Underwriter to recommend to you the maximum offering price for the Common Preferred Stock as required by the NASD Conduct Rules. We have participated in the preparation of the Registration Statement and the Prospectus (as such terms are defined in the Underwriting Agreement) and have exercised the usual standards of "due diligence" with respect thereto. Assuming that the Offering is commenced on [________], 1998, we recommend that the offering price of the Common Preferred Stock be no higher than $[_______], which price should in no event be considered or relied upon as an indication of the actual value of the Common Preferred Stock. Our recommendations are based on economic, market, financial and other conditions as they exist at the date hereof and on other conditions and circumstances relating to the Company as described in the Registration Statement. Changes in the conditions and circumstances relating to the Company from those described in the Registration Statement and events occurring after the date hereof, including changes in the markets in which the Company operates, could materially affect the conclusions stated in this letter. We shall not be obligated or required to reaffirm or revise these recommendations or otherwise to comment on any events occurring after the date hereof or on any change to the conditions or circumstances relating to the Company from those so described. Very truly yours,.

Prudential Securities Incorporated. Xxxxxxx Xxxxx & Associates, Inc............................... Xxxxxx Inc. ....................................... --------- Total.............................................. 10,000,000 =............................................... 7,500,000 ========= Schedule 2 EXHIBIT A --------- Subsidiaries ------------ Cabot Industrial Properties, X.X. Xxxxx Advisors, Inc. EXHIBIT B --------- Form of Pricing Opinion Lock-Up Agreement ------------------------- January __, 1998 X.X. Xxxxxx Brothers Securities Inc. Three World Financial Center New YorkXxxxxxx, New York 10285 XX Xxxxx Realty Corp. & Co. Prudential Securities Incorporated Xxxxx Xxxxxx Inc. as Representatives of the several Underwriters listed on Schedule I to the Underwriting Agreement c/o X.X Xxxxxx Securities Inc. 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 PRICING OPINION Ladies and Gentlemen: XX Xxxxx Realty Corp., a Maryland corporation (The undersigned owns and/or has the "COMPANY"), right to acquire and/or has filed with the Securities and Exchange Commission a registration statement on Form S-11 (Reg. No. 333-50309) relating right to direct the offering disposition of 10,000,000 common shares of common stock (plus up to 1,500,000 shares of common stock subject to the underwriters' over-allotment option)beneficial interest, par value $.01 per share ("Common Shares"), of Cabot Industrial Trust, a Maryland ------------- real estate investment trust (the "COMMON STOCKCompany"). The undersigned understands that ------- the Company has filed a registration statement on Form S-11 (the "Registration ------------ Statement") under the Securities Act of 1933, as amended, with respect to, among --------- other things, Common Shares proposed to be sold by the Company (the "Shares") to ------ the several underwriters to be named on Schedule I to the underwriting agreement (the "Underwriting Agreement") proposed to be entered into by the Company, Cabot ---------------------- Industrial Properties, L.P. (the "Operating Partnership") and X.X. Xxxxxx Brothers --------------------- Securities Inc. ("XXXXXXX.X. Xxxxxx") is acting ), Xxxxxxx, Xxxxx & Co., Prudential Securities Incorporated and Xxxxx Xxxxxx, Inc., for themselves and as one representatives of the several underwriters of the offering to the public of the Common Stock (collectively, the "OFFERINGUnderwriters"). ------------ In connection order to induce the Company, the Operating Partnership and the Underwriters to proceed with the Offering an affiliate proposed public offering of Xxxxxx will receive $240 million in net proceeds in repayment the Shares and to enter into the Underwriting Agreement, the undersigned agrees for the equal benefit of amounts outstanding under a loan made to the Company. As a result, an affiliate the Operating Partnership and each of the Underwriters that, without the written consent of the Company and X.X. Xxxxxx, the undersigned will receive more than 10% not, (i) directly or indirectly, offer to sell, contract to sell, sell, register the sale of, pledge, grant any option, right or warrant to purchase or otherwise dispose of the proceeds of the Offering. Although the Conduct Rules of the NASD exempt REITs from the conflict of interest provisions thereofany Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares (including, because Xxxxxx and certain of its affiliates will receive more than 10% of the net proceeds of the Offeringwithout limitation, the underwriters have determined to conduct the Offering in accordance with the applicable provisions of Rule 2720 of the Conduct Rules. Accordingly, the public offering price can be no higher than that recommended by a "qualified independent underwriter" meeting certain standards. We have been retained as a Qualified Independent Underwriter to recommend to you the maximum offering price for the Common Stock as required by the NASD Conduct Rules. We have participated in the preparation of the Registration Statement and the Prospectus (a) Units (as such terms are defined in the Underwriting Agreement), (b) Common Shares or Units which may be deemed to be beneficially owned by the undersigned in accordance with the rules and have exercised regulations of the usual standards Securities and Exchange Commission and (c) securities which may be issued upon exercise of "due diligence" a stock option or warrant), owned on the date hereof or hereafter acquired by the undersigned, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of Common Shares or Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares, Units, in cash or otherwise, for a period of 24 months from the date of the effectiveness of the Registration Statement; provided, however, -------- ------- that the undersigned may transfer ownership of the Common Shares or Units by gift or charitable donation if the beneficiary of such gift or donation agrees to be bound by the terms of this agreement for a period beginning on the date of transfer and ending 24 months after the date hereof. In addition, the undersigned agrees that, without the prior written consent of X.X. Xxxxxx on behalf of the Underwriters it will not, during the period ending 24 months after effectiveness of the Registration Statement, make any demand for or exercise any right with respect theretoto, the registration of any Common Shares, Units or any other security convertible into or exercisable or exchangeable for Common Shares. Assuming that If the Offering is commenced on [Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof specifically designated to survive) shall terminate prior to payment for and delivery of the shares to be sold thereunder, the undersigned shall be relieved from all obligations under this letter. Very truly yours, ________], 1998, we recommend that the offering price of the Common Stock be no higher than $[_______], which price should in no event be considered or relied upon ____________________ (Name) By: _______________________________ (Authorized Signatory) Accepted as an indication of the actual value of the Common Stock. Our recommendations are based on economicdate first set forth above: X.X. Xxxxxx Securities Inc. Xxxxxxx, market, financial and other conditions as they exist at the date hereof and on other conditions and circumstances relating to the Company as described in the Registration Statement. Changes in the conditions and circumstances relating to the Company from those described in the Registration Statement and events occurring after the date hereof, including changes in the markets in which the Company operates, could materially affect the conclusions stated in this letter. We shall not be obligated or required to reaffirm or revise these recommendations or otherwise to comment on any events occurring after the date hereof or on any change to the conditions or circumstances relating to the Company from those so described. Very truly yours,Xxxxx & Co. Prudential Securities Incorporated Xxxxx Xxxxxx Inc. By: X.X. Xxxxxx Securities Inc. By: ______________________________ Name: Title: Exhibit B

Prudential Securities Incorporated. Xxxxxxx Xxxxx Total..................................................................... SCHEDULE B FORM OF OPINION OF XXXX & AssociatesXXXX REGARDING THE FUND January [ ], Inc............................... Total.............................................. 10,000,000 ========== Schedule 2 Form 2003 UBS Warburg LLC As Representative of Pricing Opinion Xxxxxx Brothers Inc. Three World Financial Center New York, New York 10285 XX Xxxxx Realty Corp. 00 the Several Underwriters 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 PRICING OPINION 00000-0000 Re: Xxxx Xxxxxxx Preferred Income Fund II Ladies and Gentlemen: XX Xxxxx Realty Corp.This opinion is furnished to you pursuant to Section 6(e) of the Underwriting Agreement, a Maryland corporation dated as of January [ ], 2003 (the "COMPANYUnderwriting Agreement"), has filed among you, as Representative of the several Underwriters, Xxxx Xxxxxxx Advisers, LLC, a Delaware limited liability company (the "Adviser"), and Xxxx Xxxxxxx Preferred Income Fund II, a Massachusetts business trust (the "Fund"). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to them in the Underwriting Agreement. We have acted as counsel for the Fund and the Adviser in connection with the sale to the Underwriters by the Fund of an aggregate of [ ] preferred shares of beneficial interest of the Fund, no par value, designated Series M Auction Preferred Shares of the Fund, [ ] preferred shares of beneficial interest of the Fund, no par value, designated Series T Auction Preferred Shares of the Fund, and [ ] preferred shares of beneficial interest of the Fund, no par value, designated Series W Auction Preferred Shares of the Fund, each with a liquidation preference of $25,000 per share (collectively, the "Shares"), all pursuant to the Section 1 of the Underwriting Agreement. As such counsel, we have assisted in the preparation and filing with the Securities and Exchange Commission a registration statement (the "Commission") of the Fund's Registration Statement on Form S-11 N-2 dated December 18, 2002 (Reg. NoFile Nos. 333-50309) relating to the offering of 10,000,000 shares of common stock (plus up to 1,500,000 shares of common stock subject to the underwriters' over99685 and 811-allotment option21202), par value $.01 per share and amendments No. 1 and No. 2 thereto, which Registration Statement became effective on January [ ], 2003 (the "COMMON STOCKEffective Date"). Xxxxxx Brothers Inc. (Such Registration Statement, in the form in which it became effective, is referred to herein as the "XXXXXX") is acting Registration Statement," and the prospectus dated January [ ], 2003 and statement of additional information dated [ ], 2002, included therein, as one filed pursuant to Rule 497 of the several underwriters Securities Act of the offering to the public of the Common Stock 1933, as amended (the "OFFERINGSecurities Act"). In , on January [ ], 2003, are referred to herein as the "Prospectus" and the "Statement of Additional Information." We have examined and relied upon the Declaration of Trust and Amended By-laws of the Fund, each as amended to date, records of meetings or written actions of shareholders and of the Board of Trustees of the Fund, proceedings of the Fund in connection with the Offering an affiliate of Xxxxxx will receive $240 million in net proceeds in repayment of amounts outstanding under a loan made to the Company. As a result, an affiliate of Xxxxxx, will receive more than 10% authorization and issuance of the proceeds Shares, the Registration Statement, the Prospectus, the Statement of Additional Information, the Underwriting Agreement, certificates of representatives of the Offering. Although Fund, certificates of public officials and such other documents as we have deemed necessary as a basis for the Conduct Rules of the NASD exempt REITs from the conflict of interest provisions thereof, because Xxxxxx and certain of its affiliates will receive more than 10% of the net proceeds of the Offering, the underwriters have determined to conduct the Offering in accordance with the applicable provisions of Rule 2720 of the Conduct Rules. Accordingly, the public offering price can be no higher than that recommended by a "qualified independent underwriter" meeting certain standardsopinions hereinafter expressed. We have been retained assumed that all corporate or trust records of the Fund and the Adviser and stock books of the Fund and are complete and accurate. Insofar as a Qualified Independent Underwriter this opinion relates to recommend factual matters, information with respect to you the maximum offering price for the Common Stock as required by the NASD Conduct Rules. We have participated which is in the preparation possession of the Registration Statement Fund or the Adviser, we have relied, with your permission, upon certificates, statements and representations of officers and other representatives of the Fund and the Prospectus (as such terms are defined Adviser, representations made in the Underwriting Agreement) Agreement and have exercised the usual standards of "due diligence" with respect thereto. Assuming that the Offering is commenced on [________], 1998, we recommend that the offering price of the Common Stock be no higher than $[_______], which price should in no event be considered or relied upon as an indication of the actual value of the Common Stock. Our recommendations are based on economic, market, financial and other conditions as they exist at the date hereof and on other conditions and circumstances relating to the Company as described statements contained in the Registration Statement. Changes We have not attempted to verify independently such facts, although nothing has come to our attention which has caused us to question the accuracy of such certificates, statements or representations. In our examination of the documents referred to above, we have assumed the genuineness of all signatures, the legal capacity of each individual signing such documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, and the authenticity of the originals of such documents. Any reference to "our knowledge" or "best of our knowledge" or to any matters "known to us," "of which we are aware" or "coming to our attention" or any variation of any of the foregoing, shall mean the conscious awareness, as to the existence or absence of any facts which would contradict the opinions and statements so expressed, of the attorneys of this firm who have rendered substantive attention to the transaction to which this opinion relates. Other than as expressly set forth below, we have not undertaken, for purposes of this opinion, any independent investigation to determine the existence or absence of such facts, and no inference as to our knowledge of the existence or absence of such facts should be drawn from the fact of our representation of the Fund and the Adviser. Moreover, we have not searched any electronic databases or the dockets of any court, regulatory body or governmental agency or other filing office in any jurisdiction. For purposes of this opinion, we have assumed that the agreements referred to herein have been duly authorized, executed and delivered by all parties thereto other than the Fund, and that all such other parties have all requisite power and authority to effect the transactions contemplated by such agreements. We have also assumed that each such agreement is the valid and binding obligation of each party thereto other than the Fund and is enforceable against all such other parties in accordance with its terms. We do not render any opinion as to the application of any federal or state law or regulation to the power, authority or competence of any party to the agreements other than the Fund. Our opinions set forth below are qualified to the extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting the rights of creditors generally, (ii) statutory or decisional law concerning recourse by creditors to security in the conditions absence of notice or hearing, (iii) duties and circumstances standards imposed on creditors and parties to contracts, including, without limitation, requirements of good faith, reasonableness and fair dealing, and (iv) general equitable principles. We express no opinion as to the availability of any equitable or specific remedy upon any breach of any of the agreements as to which we are opining herein, or any of the agreements, documents or obligations referred to therein, or to the successful assertion of any equitable defenses, inasmuch as the availability of such remedies or the success of any equitable defense may be subject to the discretion of a court. Without limiting the foregoing, with respect to our opinion in paragraph 9 below, (i) we are expressing no opinion as to the enforceability of the indemnification or contribution provisions of the Underwriting Agreement, (ii) we note that a court may refuse to enforce, or may limit the application of, the Underwriting Agreement or certain provisions thereof, as unconscionable or contrary to public policy, and (iii) we have assumed compliance by all parties with federal and state securities laws. We also express no opinion herein as to any provision of any agreement (a) which may be deemed to or construed to waive any right of the Fund, (b) to the effect that rights and remedies are not exclusive, that every right or remedy is cumulative and may be exercised in addition to or with any other right or remedy and does not preclude recourse to one or more other rights or remedies, (c) relating to the Company from those described effect of invalidity or unenforceability of any provision of any agreement on the validity or enforceability of any other provision thereof, (d) requiring the payment of penalties, consequential damages or liquidated damages, (e) which is in violation of public policy, including, without limitation, any provision relating to non-competition and non-solicitation or relating to indemnification and contribution with respect to securities law matters, (f) purporting to indemnify any person against his, her or its own negligence or intentional misconduct, (g) which provides that the terms of any agreement may not be waived or modified except in writing or (h) relating to choice of law or consent to jurisdiction. Our opinion expressed in paragraph 1 below as to the valid existence and good standing of the Fund is based solely on a certificate of legal existence issued by the Secretary of State of the Commonwealth of Massachusetts, a copy of which has been made available to your counsel, and our opinion with respect to such matters is rendered as of the date of such certificate and limited accordingly. We express no opinion as to the tax good standing of the Fund in any jurisdiction. In connection with our opinion expressed in paragraph 2 below, insofar as it relates to full payment for the outstanding Common Shares of the Fund, we have relied solely on a certificate of an officer of the Fund. Our opinion expressed in paragraph 2 below as to issued and outstanding shares of capital stock of the Fund is based solely on a certificate of the Fund's transfer agent, which we assume to be complete and accurate. Our opinion expressed in paragraph 2 below as to the due and valid issuance of all outstanding common shares of the Fund is based solely on a review of the corporate minute books of the Fund, and a certificate of an officer of the Fund, each of which we assume to be complete and accurate. Our opinion expressed in paragraph 4 below as to the effectiveness of the Registration Statement under the Securities Act is based solely upon oral advice from Xx. Xxxxx Xxxxxxxx at the Division of Investment Management of the Commission that such Registration Statement was declared effective as of [ ] p.m. on January [ ], 2003. Our opinion expressed in paragraph 10 below as to the listing of the Common Shares on the New York Stock Exchange is solely based upon a letter from the Exchange to the Fund dated [ ], 2002. Our opinions in paragraphs 2 and events occurring after 3 below are qualified to the date hereofextent that, including changes under Massachusetts law, shareholders of a Massachusetts business trust may be held personally liable for the obligations of the Fund. However, the Declaration of Trust disclaims shareholders liability for acts or obligations of the Fund. Also, the Declaration of Trust provides for indemnification out of Fund property for all loss and expense of any shareholder held personally liable for the obligations of the Fund. We have not made any investigation of the laws of any jurisdiction other than the state laws of the Commonwealth of Massachusetts and the federal laws of the United States of America. To the extent that any other laws govern any of the matters as to which we express an opinion below, we have assumed for purposes of this opinion, with your permission and without independent investigation, that the laws of such jurisdiction are identical to the state laws of the Commonwealth of Massachusetts, and we express no opinion as to whether such assumption is reasonable or correct. We express no opinion with respect to the securities or Blue Sky laws of any state of the United States, with respect to state or federal antifraud laws (except to the extent expressly provided in the markets in which the Company operates, could materially affect the conclusions stated in this letter. We shall not be obligated third to last paragraph below) or required to reaffirm or revise these recommendations or otherwise to comment on any events occurring after the date hereof or on any change with respect to the conditions or circumstances relating approval by the National Association of Securities Dealers, Inc. of the offering. On the basis of and subject to the Company from those so described. Very truly yours,foregoing, we are of the opinion that: