UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Cadillac Fairview Corporation
-----------------------------
(Name of Issuer)
Common Shares
-------------
(Title of Class of Securities)
126929207
---------
(CUSIP Number)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
--------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 12, 1999
----------------
(Date of Event which Requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
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CUSIP NO. 126929207 PAGE 2 OF 20 PAGES
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- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [ ]
(B) [X ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO/AF/WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d)OR 2(e) [X ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 15,723,718
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
15,723,718
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
15,723,718
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.1%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
BD-PN-IA
- --------------------------------------------------------------------------------
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CUSIP NO. 126929207 PAGE 3 OF 20 PAGES
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- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, L.P.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [ ]
(B) [X ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO/AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d)OR 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 15,723,718
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
15,723,718
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
15,723,718
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.1%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
HC-PN
- --------------------------------------------------------------------------------
<PAGE>
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CUSIP NO. 126929207 PAGE 4 OF 20 PAGES
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- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WHCF Real Estate Limited Partnership
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [ ]
(B) [X ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d)OR 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 15,458,520
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
15,458,520
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
15,458,520
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.8%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE>
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CUSIP NO. 126929207 PAGE 5 OF 20 PAGES
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Whitehall Street Real Estate Limited Partnership V
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [ ]
(B) [X ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d)OR 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 15,458,520
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
15,458,520
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
15,458,520
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.8%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE>
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CUSIP NO. 126929207 PAGE 6 OF 20 PAGES
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
W.H. Advisors, L.P. V
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(A) [ ]
(B) [X ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d)OR 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 15,458,520
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
15,458,520
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
15,458,520
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.8%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP NO. 126929207 PAGE 7 OF 20 PAGES
Item 1. Security and Issuer.
This statement relates to the Common Shares (the "Shares") of Cadillac
Fairview Corporation (the "Issuer"). The address of Issuer's principal executive
offices is 20 Queen Street West, 5th Floor, Toronto, Ontario M5H 3R4.
Item 2. Identity and Background
This statement is being filed by Goldman, Sachs & Co. ("GS&Co."), The
Goldman Sachs Group, L.P. ("GS Group"), WHCF Real Estate Limited Partnership
("WHCF"), Whitehall Street Real Estate Limited Partnership V ("Whitehall V") and
WH Advisors, L.P. V ("WH Advisors" and, together with GS&Co., GS Group, WHCF and
Whitehall V, the "Filing Persons").*
The business address of each Filing Person is 85 Broad Street, New York,
New York 10004.
WHCF is a Delaware limited partnership that was formed for the purpose of
investing in securities of the Issuer. Whitehall V, the 93.5% general partner of
WHCF, is a Delaware limited partnership that was formed for the purpose of
investing in debt and equity interests in real estate assets and businesses. WH
Advisors, a Delaware limited partnership, acts as the sole general partner of
Whitehall V.
GS&Co., a New York limited partnership, is an investment banking firm and a
member of the New York Stock Exchange, Inc. and other national exchanges. GS
Group, one of the general partners of GS&Co., owns a 99% interest in GS&Co.
GS&Co. is the investment manager for Whitehall V. GS Group is a Delaware limited
partnership and holding partnership that (directly or indirectly through
subsidiaries or affiliated companies or both) is a leading investment banking
organization. The other general partner of GS&Co. is The Goldman, Sachs & Co.
L.L.C. ("GS L.L.C."), which is wholly-owned by GS Group and The Goldman Sachs
Corporation, a Delaware corporation ("GS Corp."). GS Corp. is the sole general
partner of GS Group.
The name, residence or business address, present principal occupation or
employment, and the name, principal business and address of any corporation or
other organization in which such employment is conducted and the citizenship of
(i) each director of GS Corp. and GS L.L.C. are set forth on Schedule I hereto
and are incorporated herein by reference and (ii) each director and executive
officer of WH Advisors, Inc. V, the sole general partner of
- -------------
*Neither the present filing nor anything contained herein shall be construed as
an admission that any Filing Person constitutes a "person" for any purpose other
than Section 13(d) of the Securities Exchange Act of 1934.
<PAGE>
CUSIP NO. 126929207 PAGE 8 OF 20 PAGES
WH Advisors, are set forth on Schedule II hereto and are incorporated herein by
reference.
None of the Filing Persons, or to the best knowledge and belief of the
Filing Persons, any of the individuals listed in Schedule I or Schedule II has,
during the past five years, been convicted in any criminal proceeding (excluding
traffic violations or similar misdemeanors) or, except as set forth in Schedule
III to this Schedule 13D, has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
This Item 2 is qualified in its entirety by reference to Schedule I,
Schedule II and Schedule III which are attached hereto and incorporated into
this Item by reference.
Item 3. Source and Amount of Funds or Other Consideration.
As a result of the July 31, 1995 reorganization of the Issuer, debt held in
the Issuer's predecessor ("Old Debt") by WHCF was converted into 14,789,183
Shares and currently exercisable warrants ("Reorganization Warrants") to
purchase an additional 669,337 Shares, all of which are directly and
beneficially owned by WHCF.
As a result of the 1995 reorganization of the Issuer, Old Debt held by
GS&Co. was converted into 183,423 Shares and Reorganization Warrants to purchase
an additional 62,000 Shares, all of which are directly owned beneficially by
GS&Co.
In addition, as of March 15, 1999, GS Group and GS&Co. may be deemed to
beneficially own 19,775 Shares held in client accounts with respect to which
GS&Co. or employees of GS&Co. have voting or investment discretion, or both
("Managed Accounts"). GS&Co. purchased these Shares in the ordinary course of
its business on behalf of the Managed Accounts. GS&Co. and GS Group each
disclaims beneficial ownership of Shares held in Managed Accounts.
The funds used by WHCF to purchase the Old Debt were obtained from capital
contributions from WHCF's partners. The funds used by GS&Co. to purchase the Old
Debt came from its working capital. The funds for purchases for Managed Accounts
came from client funds.
None of the persons listed on Schedule I or Schedule II hereto has
contributed any funds or other consideration towards the purchase of the
securities of the Issuer, except insofar as they may have partnership interests
in any of the Filing Persons (or investment partnerships that have
<PAGE>
CUSIP NO. 126929207 PAGE 9 OF 20 PAGES
invested therein) and have made capital contributions to any of the Filing
Persons (or investment partnerships that have invested therein), as the case may
be.
Item 4. Purpose of Transaction.
The Filing Persons acquired and continue to hold the Shares reported herein
for investment purposes. WHCF has entered into a Shareholders' Agreement among
WHCF, Blackstone (defined below) and the Ontario Teachers' Pension Plan Board
("OTPPB", and collectively with WHCF and Blackstone, the "Investors"), dated as
of July 31, 1995 and as amended on August 26, 1997 (the "Shareholders'
Agreement"). "Blackstone" refers to the following entities: BRE/CF Equity
Acquisition L.P., Blackstone Real Estate Partners II L.P., Blackstone Real
Estate Partners IV L.P., Blackstone RE Capital Partners II L.P. and Blackstone
CF Equity Acquisition L.P. A copy of the Shareholders' Agreement is attached
hereto as Exhibit 1 and is incorporated herein by reference. The Filing Persons
disclaim that WHCF, Blackstone and OTPPB constitute a "group" for purposes of
the U.S. securities laws. However, this Schedule 13D is being filed in response
to the purchase of Shares by OTPPB in the preceding 12 months in excess of two
per centum of the total outstanding Shares.
Pursuant to the Shareholders' Agreement, the Investors have agreed to vote
their Shares to elect a board of directors consisting of 13 directors, three
directors to be nominated by WHCF, two directors to be nominated by OTPPB and
one director to be nominated by Blackstone. The right to nominate individuals to
the Issuer's board of directors is dependent on the parties maintaining certain
levels of Share ownership. WHCF is entitled to nominate three directors so long
as it continues to hold at least 15% of the Shares, two directors so long as it
continues to hold at least 10% of the Shares and one director so long as it
holds at least 3% of the Shares. If Blackstone ceases to have a nominee on the
Issuer's board of directors and if at such time OTPPB holds at least as many
Shares as WHCF, then OTPPB is entitled to increase the number of directors which
it is otherwise entitled to nominate by one. WHCF's current nominees to the
Issuer's board of directors are Daniel Neidich, Ralph Rosenberg and John P.
Curtin. Mr. Neidich and Mr. Rosenberg are Managing Directors of GS&Co. Mr.
Curtin is Chairman of Goldman Sachs Canada Inc.
The Shareholders' Agreement provides that if a vacancy in the Issuer's
board of directors arises, and the vacating director was a nominee of one of the
Investors, the Investor who nominated such vacating director is entitled to
nominate an individual to be appointed by the board of directors as a director
to replace such vacating director.
The Shareholders' Agreement does not restrict a party's ability to sell,
assign, transfer or otherwise dispose of its interest in the Shares, and third
party transferees may,
<PAGE>
CUSIP NO. 126929207 PAGE 10 OF 20 PAGES
but are not required to, become parties to the Shareholders' Agreement.
The Shareholders' Agreement continues in force until the earliest of (i)
the date upon which none of the Investors owns 5% or more of the then
outstanding Shares; (ii) the date upon which the agreement is terminated in
writing among each party who is at such time a holder of not less than 7% of the
then outstanding Shares; (iii) the fifth anniversary of the date of the
agreement; and (iv) the date upon which the agreement is terminated in writing
by each of the parties thereto.
WHCF has entered into a letter agreement among the Issuer, the Investors
and TCW Asset Management Company as agent and on behalf of certain funds and
accounts, dated as of March 3, 1999, (the "Letter Agreement"). A copy of the
Letter Agreement is attached hereto as Exhibit 2 and is incorporated herein by
reference.
Under the terms of the Letter Agreement, each of the parties thereto agrees
with each other party thereto and the Issuer that during the term of the Letter
Agreement, without the prior written consent of each other party thereto,
including the Issuer, no party thereto will (i) acquire or sell directly or
indirectly any interest in any Shares other than in the ordinary course of a
broker-dealer and, in the case of WHCF, other than certain asset management
business of GS Group; (ii) join any group of persons "acting jointly or in
concert" with respect to a purchase of Shares, other than any group that may be
deemed to exist among the parties thereto by virtue of the Letter Agreement or
the Shareholders' Agreement;(iii) arrange or participate in any financing for
the purchase of any Shares other than in the ordinary course of a broker-dealer
and, in the case of WHCF, other than certain asset management business of GS
Group; (iv) solicit the security holders of the Issuer other than in the
ordinary course of a broker-dealer and, in the case of WHCF, other than certain
asset management business of GS Group; (v) enter into any new agreement
regarding the holding, voting or disposition of Shares; or (vi) solicit or enter
into any negotiation with any other person with respect to any merger,
amalgamation or other business combination with or involving the Issuer or any
tender offer, takeover bid or exchange offer for securities of the Issuer, or
disclose an intent to take such an action, or assist any other person in taking
such an action.
The Letter Agreement continues in force until the earliest of (i) the 30th
day following the date thereof; (ii) the 7th day following receipt by each of
the parties thereto of notice from any party thereto terminating such party's
obligations thereunder; and (iii) the effective date of any shareholder rights
plan agreement involving the Issuer.
The foregoing descriptions in this Statement of the Shareholders' Agreement
and the Letter Agreement are
<PAGE>
CUSIP NO. 126929207 PAGE 11 OF 20 PAGES
qualified in their entirety by reference to the Shareholders' Agreement and the
Letter Agreement, copies of which are filed as Exhibits 1 and 2 hereto,
respectively, and are incorporated herein by reference. Except as described in
this Item 4 and below in Item 6, none of the Filing Persons or, to the knowledge
of each of the Filing Persons, any of the persons listed on Schedules I or II
hereto is a party to any contract, arrangement, understanding or relationship
with respect to any securities of the Issuer.
Except as set forth in this Item 4, WHCF has no present plans or proposals
that relate to or that would result in any of the actions specified in clauses
(a) through (j) of Item 4 of Schedule 13D.
Each of the Filing Persons expects to evaluate on an ongoing basis the
Issuer's financial condition, business, operations and prospects, the market
price of the Shares, conditions in the securities markets generally, general
economic and industry conditions and other factors. Accordingly, each Filing
Person reserves the right to change its plans and intentions at any time, as it
deems appropriate. In particular, the Filing Persons may purchase additional
Shares or may sell Shares from time to time in public or private transactions
and/or may enter into privately negotiated derivative transactions with
institutional counterparties to hedge the market risk of some or all of its
positions in, or to obtain greater exposure to, the Shares or other securities.
Any such transactions may be effected at any time or from time to time, subject
to any applicable limitations imposed on the sale of any of their Shares by the
Securities Act of 1933, as amended. To the knowledge of each Filing Person, each
of the persons listed on Schedules I and II hereto may make the same evaluation.
Item 5. Interest in Securities of the Issuer.
(a) As of March 15, 1999, WHCF beneficially owns, and its general partner,
Whitehall V may be deemed to beneficially own, and the general partner of
Whitehall V, WH Advisors, may be deemed to beneficially own, 15,458,520 Shares
through WHCF's direct ownership of 14,789,183 Shares and Reorganization Warrants
exercisable for 669,337 additional Shares. Pursuant to information provided by
the Issuer, 77,371,893 Shares and warrants to purchase 5,457,794 Shares were
outstanding as of January 31, 1999. Based on such information, the Shares and
Reorganization Warrants beneficially owned by WHCF, Whitehall V and WH Advisors
as of the close of business on March 15, 1999 represent approximately 19.8% of
the Shares reported to be outstanding as of January 31, 1999 (as calculated in
accordance with Rule 13d-3(d)(1)). Assuming the exercise of all outstanding
warrants of the Issuer, the Shares and Reorganization Warrants beneficially
owned by WHCF, Whitehall V and WH
<PAGE>
CUSIP NO. 126929207 PAGE 12 OF 20 PAGES
Advisors as of the close of business on March 15, 1999 represent approximately
18.7% of the Shares.
As of March 15, 1999, GS&Co. and GS Group beneficially own 15,723,718
Shares including (i) 15,458,520 Shares beneficially owned by WHCF as described
above, (ii) 245,423 Shares beneficially owned by GS&Co. through GS&Co.'s direct
ownership of 183,423 Shares and Reorganization Warrants exercisable for 62,000
additional Shares, and (iii) 19,775 Shares held in Managed Accounts. Based on
information provided by the Issuer, the Shares and Reorganization Warrants
beneficially owned by GS&Co. and GS Group as of the close of business on March
15, 1999 represent approximately 20.1% of the Shares reported to be outstanding
as of January 31, 1999 (as calculated in accordance with Rule 13d-3(d)(1)).
Assuming the exercise of all outstanding warrants of the Issuer, the Shares and
Reorganization Warrants beneficially owned by GS&Co. and GS Group as of the
close of business on March 15, 1999 represent approximately 19.0% of the Shares.
GS&Co. and GS Group each disclaims beneficial ownership of Shares held in
Managed Accounts.
None of the Filing Persons or, to the knowledge of the Filing Persons, the
persons listed on Schedules I or II hereto, beneficially owns any Shares other
than as set forth herein.
(b) Each Filing Person shares the power to vote or direct the vote and to
dispose or to direct the disposition of Shares beneficially owned by such Filing
Person as indicated on the attached cover pages.
(c) Schedule IV sets forth transactions in the Shares which have been
effected during the period from November 13, 1998 through March 15, 1999, all of
which were effected in the ordinary course of business on behalf of Managed
Accounts. The transactions in the Shares, described in Schedule IV, were
effected by GS&Co. on the New York Stock Exchange.
Except as set forth on Schedule IV, no transactions in the Shares were
effected by the Filing Persons, or, to the knowledge of any of the Filing
Persons, any of the persons listed on Schedule I or Schedule II hereto, during
the period from November 13, 1998 through March 15, 1999.
(d) Except for clients of GS&Co. who may have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
any Shares held in accounts with respect to which GS&Co. or employees of GS&Co.
have voting or investment discretion, or both, no other person is known by any
Filing Person to have the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, any Shares beneficially owned
by any Filing Person.
<PAGE>
CUSIP NO. 126929207 PAGE 13 OF 20 PAGES
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Except as described in Item 4 and below, the Filing Persons have no
contract, arrangement, understanding or relationship with any other person
regarding the Shares, including but not limited to transfer or voting of any of
such Shares, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss or the giving or
withholding of proxies.
On May 10, 1995, an affiliate of GS Group entered into a swap arrangement,
as amended, with The Toronto-Dominion Bank ("Toronto-Dominion") under which
Toronto-Dominion receives from such affiliate upon quarterly settlement a cash
payment of an amount based on a floating rate of interest on a nominal amount in
return for a payment to such affiliate in cash, of an amount equal to all
dividends and any appreciation in the price of 5,255,004 Shares and 238,123
warrants exercisable for the purchase of Shares. Such affiliate's obligations
under the swap arrangement are guaranteed by GS Group.
Item 7. Materials to be Filed as Exhibits.
1. Shareholders' Agreement dated as of July 31, 1995, as amended on
August 26, 1997.
2. Letter Agreement, dated as of March 3, 1999.
3. Joint Filing Agreement
<PAGE>
CUSIP NO. 126929207 PAGE 14 OF 20 PAGES
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
March 17, 1999
GOLDMAN, SACHS & CO. THE GOLDMAN SACHS GROUP,
L.P.
By: /S/ Hans L. Reich By: /S/ Hans L. Reich
------------------------ ----------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
WHCF REAL ESTATE LIMITED WH ADVISORS, L.P. V
PARTNERSHIP
By: /S/ Hans L. Reich By: /S/ Hans L. Reich
------------------------ ----------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: /S/ Hans L. Reich
-----------------------
Name: Hans L. Reich
Title: Attorney-in-fact
<PAGE>
CUSIP NO. 126929207 PAGE 15 OF 20 PAGES
SCHEDULE I
----------
The name of each director of The Goldman Sachs Corporation and The Goldman,
Sachs & Co. L.L.C. is set forth below.
The business address of each person listed below except John L. Thornton is
85 Broad Street, New York, NY 10004. The business address of John L. Thornton is
133 Fleet Street, London EC4A 2BB, England. Each person is a citizen of the
United States of America. The present principal occupation or employment of each
of the listed persons is as a managing director of Goldman, Sachs & Co. or
another Goldman Sachs operating entity.
Jon Z. Corzine
Henry M. Paulson, Jr.
Robert J. Hurst
John A. Thain
John L. Thornton
<PAGE>
CUSIP NO. 126929207 PAGE 16 OF 20 PAGES
SCHEDULE II
-----------
The name, position and present principal occupation of each director and
executive officer of WH Advisors, Inc. V, the sole general partner of WH
Advisors, L.P. V, which is the sole general partner of Whitehall Street Real
Estate Limited Partnership V, are set forth below.
The business address of all the executive officers and directors listed
below except G. Douglas Gunn, Todd A. Williams, Angie D. Madison, Elizabeth A.
O'Brien, Simon T. Blaxland and Nikunj N. Shah is 85 Broad Street, New York, New
York 10004. The business address of G. Douglas Gunn, Todd A. Williams and Angie
D. Madison is 100 Crescent Court, Suite 1000, Dallas, TX 75201. The business
address of Simon T. Blaxland and Nikunj N. Shah is 133 Fleet Street, London EC4A
2BB, England. The business address of Elizabeth A. O'Brien is 3 Garden Road,
Central, Hong Kong.
Except for Brahm S. Cramer, who is a Canadian citizen, Simon T. Blaxland,
who is a British citizen, Nikunj N. Shah, who is a Tanzanian citizen and Zubin
P. Irani, who is an Indian citizen, all executive officers and directors listed
below are United States citizens.
Present Principal
Name Position Occupation
- ---- -------- --------------------
Rothenberg, Stuart M. Director/Vice Managing Director of
President Goldman, Sachs & Co.
Neidich, Daniel M. President Managing Director of
Goldman, Sachs & Co.
O'Brien, Elizabeth A. Vice President/ Vice President of
Assistant Goldman Sachs (Asia)
Secretary L.L.C.
Weil, David M. Vice President Managing Director of
Goldman, Sachs & Co.
Rosenberg, Ralph F. Vice President/ Managing Director of
Assistant Goldman, Sachs & Co.
Secretary
Williams, Todd A. Vice President/ Managing Director of
Assistant Goldman, Sachs & Co.
Secretary/
Assistant
Treasurer
<PAGE>
CUSIP NO. 126929207 PAGE 17 OF 20 PAGES
Naughton, Kevin D. Vice President/ Vice President of
Secretary/ Goldman, Sachs & Co.
Treasurer
Siskind, Edward M. Vice President/ Managing Director of
Assistant Goldman, Sachs & Co.
Treasurer
Klingher, Michael K. Vice President Managing Director of
Goldman, Sachs & Co.
Gunn, G. Douglas Vice President/ Vice President of
Assistant Goldman, Sachs & Co.
Secretary
Lahey, Brian J. Vice President/ Vice President of
Assistant Goldman, Sachs & Co.
Treasurer
Kava, Alan S. Vice President Vice President of
Goldman, Sachs & Co.
Feldman, Steven M. Vice President Managing Director of
Goldman, Sachs & Co.
Madison, Angie D. Vice President/ Vice President of
Assistant Goldman, Sachs & Co.
Secretary
Weiss, Mitchell S. Assistant Vice President of
Treasurer Goldman, Sachs & Co.
Cramer, Brahm S. Vice President/ Vice President of
Assistant Goldman, Sachs & Co.
Secretary
Lauer, Kate Vice President/ Vice President of
Assistant Goldman, Sachs & Co.
Secretary
Mortelliti, Josephine Vice President Vice President of
Goldman, Sachs & Co.
Sack, Susan L. Vice President Vice President of
Goldman, Sachs & Co.
Blaxland, Simon T. Vice President Vice President of
Goldman Sachs
International
Shah, Nikunj N. Vice President Vice President of
Goldman Sachs
International
Burban, Elizabeth M. Vice President/ Vice President of
Assistant Goldman, Sachs & Co.
Secretary
Bernstein, Ronald L. Assistant Vice Associate of
President/ Goldman, Sachs & Co.
Assistant
Secretary
<PAGE>
CUSIP NO. 126929207 PAGE 18 OF 20 PAGES
Irani, Zubin P. Assistant Vice Associate of
President/ Goldman, Sachs & Co.
Assistant
Secretary
<PAGE>
CUSIP NO. 126929207 PAGE 19 OF 20 PAGES
SCHEDULE III
------------
In Securities and Exchange Commission Administrative Proceeding File No.
3-8282 In the Matter of Goldman, Sachs & Co., Goldman, Sachs & Co., (the
"Firm"), without admitting or denying any of the SEC's allegations, settled
administrative proceedings involving alleged books and records and supervisory
violations relating to eleven trades of U.S. Treasury securities in the
secondary markets in 1985 and 1986. The SEC alleged that the Firm had failed to
maintain certain records required pursuant to Section 17(a) of the Exchange Act
and had also failed to supervise activities relating to the aforementioned
trades in violation of Section 15(b)(4)(E) of the Exchange Act.
The Firm was ordered to cease and desist from committing or causing any
violation of the aforementioned sections of the Exchange Act, pay a civil money
penalty to the SEC in the amount of $250,000 and establish policies and
procedures reasonably designed to assure compliance with Section 17(a) of the
Exchange Act and Rules 17a-3 and 17a-4 thereunder.
<PAGE>
CUSIP NO. 126929207 PAGE 20 OF 20 PAGES
SCHEDULE IV
-----------
Cadillac Fairview Corporation
Cusip No. 126929207
Purchases Sales Price Trade Date Settlement Date
- --------------------------------------------------------------------------------
500 18.875 20-Nov-98 25-Nov-98
1,000 18.875 23-Nov-98 27-Nov-98
500 16.9375 8-Dec-98 11-Dec-98
1,000 18.0625 28-Dec-98 31-Dec-98
500 17.9375 16-Feb-99 19-Feb-99
750 17.0625 8-Mar-99 11-Mar-99
EXHIBIT 1
SHAREHOLDERS' AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 31st day of July, 1995.
A M O N G:
BRE/CF EQUITY ACQUISITION L.P.,
BLACKSTONE REAL ESTATE
PARTNERS II L.P., BLACKSTONE REAL
ESTATE PARTNERS IV L.P., and
BLACKSTONE RE CAPITAL PARTNERS II L.P.,
limited partnerships constituted under the
laws of the State of Delaware, and BLACKSTONE
CF EQUITY ACQUISITION L.P., a limited
partnership constituted under the laws of the
Cayman Islands,
(collectively hereinafter referred to as
"Blackstone"),
OF THE FIRST PART,
- and -
ONTARIO TEACHERS' PENSION PLAN BOARD, a
corporation continued under the Teachers'
Pension Act (Ontario),
(hereinafter referred to as "Teachers"),
OF THE SECOND PART,
- and -
WHCF REAL ESTATE LIMITED PARTNERSHIP, a
limited partnership constituted under the
laws of the State of Delaware
(hereinafter referred to as "Whitehall"),
OF THE THIRD PART.
WHEREAS the authorized capital of the Corporation (as defined below)
consists of an unlimited number of Common Shares;
AND WHEREAS, immediately following the implementation of the Cadillac
Fairview Plan (as defined below), the issued capital of the Corporation will
consist of 61,458,495 Common Shares;
<PAGE>
AND WHEREAS Blackstone, Teachers and Whitehall upon the implementation
of the Cadillac Fairview Plan, will be the registered and beneficial owners of
Common Shares as set out beside their respective names on the signature pages
hereof and, in the case of Blackstone, additional Common Shares to be acquired
in respect of debt held by it;
AND WHEREAS in accordance with the Cadillac Fairview Plan the parties
wish to establish their respective rights and obligations in respect of the
composition of the Board of Directors and certain other matters on the terms and
conditions hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
respective covenants and agreements of the parties contained herein and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged by each of the parties hereto), it is hereby agreed as
follows:
ARTICLE I
INTERPRETATION
1.1 Definitions
Where used in this Agreement and the recitals hereto, unless there is
something in the context or the subject matter inconsistent therewith, the
following terms shall have the following meanings, respectively:
(a) "Act" means the Business Corporations Act (Ontario), as amended from
time to time;
(b) "Affiliate" of a Person means another Person which directly or
indirectly controls, is controlled by or is under common control with,
such Person; and, in the case of limited partnerships, if the general
partner of a limited partnership is the same as, is controlled by or
is under common control with the general partner of another limited
partnership, the limited partnerships shall be deemed to be
Affiliates;
(c) "Board of Directors" means the board of directors of the Corporation;
(d) "Business Day" shall mean a day on which banks are required to be open
for business in Toronto, Ontario and New York, New York but does not
include a Saturday, Sunday or statutory holiday in Toronto, Ontario;
2
<PAGE>
(e) "Cadillac Fairview Plan" means the amended and restated plan of
compromise and arrangement under the Companies' Creditors Arrangement
Act (Canada) and the Act of Cadillac Fairview Inc. and the other
companies named therein, as filed in the Ontario Court of Justice
(General Division) February 8, 1995, as amended March 20, 1995, April
18, 1995, April 20, 1995, June 28, 1995 and July 20, 1995 as
sanctioned by the Ontario Court of Justice (General Division) by order
dated May 17, 1995 and as amended thereafter in accordance with its
terms;
(f) "Common Shares" means common shares in the capital of the Corporation;
(g) "control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise, and "controlling" and "controlled" shall have
meanings correlative thereto; and, in the case of a limited
partnership, it shall be deemed to be controlled by its general
partner;
(h) "Corporation" means Cadillac Fairview Corporation, a corporation
incorporated under the laws of the Province of Ontario or any
successor thereof;
(i) "First Elected Term" has the meaning ascribed thereto in section 3.4;
(j) "First Meeting" means the first meeting or written resolution of
shareholders of the Corporation at or pursuant to which directors are
elected to the Board of Directors as provided for in section 3.1 to
replace the first directors of the Corporation or, if the Board of
Directors provided for in section 3.1 is constituted by filling
vacancies resulting from the resignation of each of the first
directors and the appointment in their place of directors in
accordance with section 3.1, the meeting or written resolution of
directors at or pursuant to which such directors are appointed to
replace the first directors;
(k) "Independent Director" means an individual nominated for election to
the Board of Directors pursuant to section 3.1(e) or appointed to fill
a vacancy in the Board of Directors pursuant to section 3.2, provided
that such individual is not disqualified from acting under applicable
law and is qualified under the Corporation's by-laws and is acceptable
to Blackstone, Teachers and Whitehall, each acting reasonably, and is:
(A) qualified by skill, knowledge and experience to serve as a
director of a real estate company; and
(B) free from any:
3
<PAGE>
(i) material personal direct or indirect ownership interest
in; and
(ii) direct or indirect business or other relationship
(including, without limitation, any employment
relationship, but excluding any business dealings which
are not material or which occurred more than three
years before) with;
any of:
(1) the Corporation;
(2) any shareholder of the Corporation holding more
than (x) 1% of the Common Shares or (y) if each of
Blackstone, Teachers and Whitehall consents in
writing, 3% of the Common Shares (and any such
interest or relationship shall be fully disclosed
in writing to each of the Corporation, Teachers,
Blackstone and Whitehall at the time of the
nomination of any such nominee); or
(3) any Affiliate or associate (as defined in the Act)
of the Corporation or of any shareholder referred
to in clause (2) above;
(l) "National Exchange" means a national securities exchange (which may
include NASDAQ) in Canada or the United States;
(m) "Person" includes an individual, a firm, a corporation, a syndicate, a
partnership, a limited partnership, a trust, an association, a joint
venture, an incorporated organization, a government, a governmental
authority or any other entity;
(n) "Public Offering" means the offering or sale of Common Shares of the
Corporation pursuant to a prospectus in Canada or a registration
statement effective under the United States Securities Act of 1933, as
amended, in the United States or the listing of Common Shares on a
National Exchange;
(o) "Shareholders" means, collectively, Blackstone, Teachers, Whitehall
and any other Person who shall acquire an interest in the Common
Shares currently held by a Shareholder and who agrees in writing or is
deemed hereunder to be bound by the terms and conditions of this
Agreement pursuant to section 4.2 or 4.3 so long as such Person
continues to have an interest in Common Shares; and "Shareholder"
means any one of the Shareholders for the time being;
4
<PAGE>
(p) "Subordinated Debt Steering Committee" means the steering committee
representing, in connection with the Cadillac Fairview Plan, the
holders of the debentures designated as "Series A Subordinated
Debentures Due 2012" and as "Series B Subordinated Debentures Due
2012", issued by Cadillac Fairview Inc. pursuant to a trust indenture
dated October 31,1987 between Cadillac Fairview Inc. and The Royal
Trust Company and maturing October 31, 2012; and
(q) "Syndicated Creditors" means those Syndicated Creditors (as such term
is defined in the Cadillac Fairview Plan) who did not have claims
against Cadillac Fairview Inc. or the other companies named in the
Cadillac Fairview Plan in other creditor classes and who will receive
Common Shares of the Corporation in respect of their syndicated debt
claims under the Cadillac Fairview Plan (other than Blackstone,
Teachers and Whitehall).
1.2 Gender/Numbers
Words importing the singular number only shall include the plural and
vice versa and words importing the use of any gender shall include all genders.
1.3 Headings
The Article and section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
1.4 Proper Law
This Agreement and all documents ancillary hereto shall be governed by
and interpreted in accordance with the laws of the Province of Ontario and the
federal laws of Canada applicable therein. Each of the parties hereby
irrevocably agrees to attorn to the non-exclusive jurisdiction of the courts of
the Province of Ontario with respect to this Agreement.
1.5 Business Days
If any act is required hereunder to be done, any notice is required
hereunder to be given or any period of time is to expire hereunder on any day
that is not a Business Day, such act shall be required to be done or notice
shall be required to be given or time shall expire on the next succeeding
Business Day.
5
<PAGE>
1.6 Reclassification of Shares
The provisions of this Agreement shall apply, mutatis mutandis, to any
shares or securities of any nature into which the Common Shares or any of them
may be converted, exchanged, reclassified, redivided, redesignated, subdivided
or consolidated, to any shares or securities of any nature that are received by
a Shareholder as a stock dividend or distribution payable in shares, securities,
warrants, rights or options of any nature of the Corporation, to any shares,
securities, warrants, rights or options of any nature of the Corporation or any
successor, continuing company or corporation of the Corporation that may be
received by a Shareholder on a reorganization, amalgamation, arrangement,
consolidation or merger, statutory or otherwise, and to any shares, securities,
warrants, rights or options hereafter issued or allotted by the Corporation to a
Shareholder, all of which shares, securities, warrants, rights or options shall
be deemed to be Common Shares for all purposes of this Agreement.
1.7 Blackstone to Act as a Single Person
Each of BRE/CF Equity Acquisition L.P., Blackstone Real Estate
Partners II L.P., Blackstone Real Estate Partners IV L.P., Blackstone RE Capital
Partners II L.P. and Blackstone CF Equity Acquisition L.P. hereby acknowledges
that they are under common control. Each of them hereby appoints BREA as its
sole and exclusive agent, attorney and representative for all matters relating
to or arising under this Agreement and agrees that BREA may act on its behalf in
respect of all matters arising hereunder and that all other parties hereto and
the Corporation shall be entitled to rely on all acts, matters, documents,
proxies, agreements and instruments of BREA as conclusively binding on each of
the entities constituting Blackstone with respect thereto. Blackstone may
appoint a successor agent to replace BREA by written notice to the other
parties. BREA hereby agrees to act as agent for and on behalf of each of the
entities constituting Blackstone.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties
Each party hereto hereby represents and warrants to each of the other
parties as follows and acknowledges that such other parties are relying upon
such representations and warranties in connection with the entering into of this
Agreement:
(a) the party has all necessary power and authority to enter into this
Agreement and perform its obligations hereunder;
6
<PAGE>
(b) all necessary action has been taken by the party to authorize the
execution and delivery of this Agreement by it and the performance by
it of its obligations hereunder, and this Agreement has been duly
executed and delivered by the party and constitutes a legal, valid and
binding obligation of the party, enforceable against it in accordance
with its terms; and
(c) neither the execution and delivery of this Agreement by the party nor
the performance by it of its obligations hereunder will conflict with
or result in the violation of any of the terms and provisions of the
constating documents or by-laws of the party or of any agreement,
obligation, contract, commitment, law or regulation to which it is a
party or by which it is bound.
ARTICLE III
BOARD OF DIRECTORS OF THE CORPORATION
3.1 Nomination of Directors
At all times while this Agreement is in effect, the Shareholders shall
vote their Common Shares and use their reasonable efforts to cause the following
to occur:
(a) the Board of Directors shall consist of nine (9) directors;
(b) subject to sections 3.4 and 3.5, for so long as Whitehall is a
Shareholder, Whitehall shall be entitled to nominate for election to
the Board of Directors from time to time three (3) directors (who need
not be "resident Canadians" within the meaning of the Act);
(c) subject to sections 3.4 and 3.5, for so long as Teachers is a
Shareholder, Teachers shall be entitled to nominate for election to
the Board of Directors from time to time two (2) directors;
(d) subject to sections 3.4 and 3.5, for so long as Blackstone is a
Shareholder, Blackstone shall be entitled to nominate for election to
the Board of Directors from time to time one (1) director (who need
not be a "resident Canadian" within the meaning of the Act);
(e) at the First Meeting, the Subordinated Debt Steering Committee and the
Syndicated Creditors shall each be entitled to nominate for election
to the Board of Directors one (1) director, who shall in each case be
an Independent Director. The Shareholders shall be entitled to rely on
Bruce Karsh and The Toronto-Dominion Bank to identify the Independent
Directors nominated by the Subordinated Debt Steering Committee and
the Syndicated Creditors, respectively. The parties agree to the
appointment of Russell S. Bernard and Robert E. Bellamy as Independent
Directors;
7
<PAGE>
(f) the chief executive officer of the Corporation from time to time shall
be nominated by the Board of Directors and elected a director of the
Corporation (and, for greater certainty, shall not be one of the
nominees referred to in sections 3.1(b), (c), (d) or (e) above); and
(g) subject to applicable law, any director designated hereunder, shall be
removed from the Board of Directors, whether or not for cause, at the
written request of the Person or Persons who previously designated
such director; and
(h) subject to applicable law, the parties will not vote their Common
Shares to remove any director appointed pursuant to this Agreement
except for cause.
3.2 Filling of Vacancies
(a) If a vacancy in the Board of Directors arises, and the vacating director
was a nominee of one of the Shareholders referred to in sections 3.1(b),
(c) or (d), the Shareholder who nominated such vacating director shall be
entitled to nominate an individual to be appointed by the Board of
Directors as a director to replace such vacating director, subject to and
in accordance with the provisions of section 3.1.
(b) If a vacancy in the Board of Directors arises, and the vacating director
was an Independent Director appointed pursuant to section 3.1(e) or a
successor thereof, the Board of Directors shall appoint a director to
replace such vacating director, who shall be an Independent Director.
Notwithstanding the preceding sentence if, during the First Elected Term,
there is a vacancy created by the resignation of an Independent Director,
such resigning director may nominate an Independent Director or, in the
event of the death or disability of an Independent Director, the other
Independent Director may nominate an Independent Director and, in either
such case, such nominee shall be appointed to till the vacancy if he or she
is acceptable to each of Whitehall, Blackstone and Teachers, acting
reasonably.
(c) The parties agree to use their reasonable efforts (including by exercising
voting rights) to cause any such vacancy to be filled in accordance with
this section 3.2 as soon as practicable after it arises and to use their
reasonable efforts to cause any director nominated by them to vote to fill
the vacancies in such manner, provided that nothing herein shall in any way
be interpreted to cause any director to fail to fulfill his fiduciary
duties to the Corporation.
8
<PAGE>
3.3 Initial Nominees
The initial nominees of Blackstone, Teachers and Whitehall shall be:
Name Nominee of
---- ----------
Thomas Saylak Blackstone
Morton Gross Teachers
Brian Muzyk Teachers
Daniel Neidich Whitehall
Ralph Rosenberg Whitehall
John P. Curtin Whitehall
3.4 First Elected Term
(a) As soon as possible after the execution of this Agreement, the First
Meeting shall be held at which directors of the Corporation shall be elected in
accordance with the provisions of section 3.1. The directors to be elected at
the First Meeting shall be elected for a term (the "First Elected Term")
expiring on July 31, 1998.
(b) If the Corporation proposes to effect a Public Offering prior to July
31, 1998 and if the underwriters, in good faith, advise the Corporation and the
Shareholders that the then current composition of the Board of Directors will
likely have a material adverse effect on the pricing or number of the Common
Shares to be sold pursuant to the Public Offering, then the Shareholders will
consider, in good faith, altering the composition of the Board of Directors and
modifying the terms of this Agreement in a manner consistent with the
recommendations of the underwriters as well as the intent of this Agreement. The
implementation will be conditional upon completion of the Public Offering.
Nothing in this paragraph 3.4(b) shall impose any obligations or liabilities on
the parties or shall result in any fiduciary duties being imposed or implied;
this paragraph is intended merely to reflect an understanding that the parties
will consider the implications of this Agreement on the likely success of an
underwriting.
(c) Following the expiry of the First Elected Term, directors of the
Corporation shall be elected in accordance with the provisions of section 3.1 to
hold office until the next annual meeting of shareholders of the Corporation or
until their successors are elected or appointed.
3.5 Reduction of Nomination Rights
(a) If prior to July 31, 1998, any of Whitehall, Teachers or Blackstone,
together with its Affiliates, ceases to hold at least 3% of the Common Shares
outstanding as of the date hereof, then it shall cease to be entitled to
nominate any directors.
9
<PAGE>
(b) If, after July 31, 1998, any of Whitehall, Teachers or Blackstone
ceases to hold the percentage of Common Shares referred to below, then its
rights to nominate directors pursuant to section 3.1 of to fill vacancies
pursuant to section 3.2 shall be modified as follows:
(i) if Whitehall together with its Affiliates continues to hold at
least 15% of the Common Shares outstanding as of the date hereof,
then it shall continue to be entitled to nominate three (3)
directors;
(ii) if either of Whitehall or Teachers together with their respective
Affiliates continues to hold at least 10% of the Common Shares
outstanding as of the date hereof, then, subject to clause (i) in
the case of Whitehall, it shall continue to be entitled to
nominate two (2) directors;
(iii) if any Shareholder together with its Affiliates continues to
hold at least 3% of the Common Shares outstanding as of the date
hereof, then subject to clauses (i) and (ii) in the case of
Whitehall or Teachers, it shall continue to be entitled to
nominate one (1) director; and
(iv) if any Shareholder together with its Affiliates shall cease to
hold at least 3% of the Common Shares outstanding as of the date
hereof, then it shall cease to be entitled to nominate any
directors.
(c) If any Shareholder ceases to be entitled to nominate that number of
directors which it has nominated to the Board of Directors and who continue to
act as directors, then, at the request of any of Blackstone, Teachers or
Whitehall, such Shareholder shall cause one or more of its nominees to resign
from the Board of Directors so that the number of remaining nominees is equal to
its entitlement. If a Shareholder fails to cause such resignation within 21 days
of such request, then the Shareholders shall vote their Common Shares to cause
the removal of such nominee or nominees. Subject to paragraph 3.5(d), any
vacancy created by the resignation or removal of a director pursuant to this
section 3.5 shall be filled with an Independent Director nominated by the Board
of Directors.
(d) If Blackstone ceases to have a nominee on the Board of Directors as a
result of the provisions in paragraphs 3.5(a) or 3.5(b)(iv) and if at such time
Teachers and its Affiliates hold at least as many Common Shares as Whitehall and
its Affiliates, then Teachers shall be entitled to increase the number of
directors which it is otherwise entitled to nominate by one (1).
(e) The provisions of this section 3.5 shall override any provisions of
sections 3.1, 3.2 and 3.6 to the contrary.
10
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3.6 Exercise of Votes
Each of the Shareholders agrees that it will at all times during the
term of this Agreement: (i) exercise any and all voting rights attaching to the
Common Shares owned by it and to otherwise exercise its influence and to do or
cause to be done all such other acts, matters and things as may from time to
time be necessary or conducive to the carrying out of the terms and intent of
this Agreement, including, without limitation but subject to section 3.5, voting
for the election to the Board of Directors of the nominees nominated in
accordance with section 3.1 and for the terms specified in section 3.4; (ii)
take no action (including by nominating any person that would prevent the
election of non-resident Canadians as contemplated by sections 3.1(b) and (d))
which would constitute a contravention of any of the terms and provisions
hereof; and (iii) take no action during the First Elected Term to change the
articles or by-laws of the Corporation in a manner which would result in the
Corporation no longer being required to nominate and elect two Independent
Directors.
ARTICLE IV
TRANSFERS OF COMMON SHARES
4.1 No Restrictions
Subject to sections 4.2 and 4.3, nothing in this Agreement shall
restrict a Shareholder in its ability to sell, assign, transfer or otherwise
dispose of its interest in any Common Shares; provided that this in no way
limits any Shareholder's obligations under applicable securities law.
4.2 Affiliate Transferees Bound
As a condition to any sale, assignment, transfer or other disposition
by a Shareholder of its interest in any Common Shares to an Affiliate (the
"Affiliate Transferee"), the Affiliate Transferee shall agree in writing to be
bound, and shall be deemed to be bound, by the terms and conditions of this
Agreement. In the event that a Shareholder who has a right to nominate directors
pursuant to section 3.1 transfers all of its interest in the Common Shares held
by it to an Affiliate Transferee, the Affiliate Transferee shall thereafter be
deemed to have such right to nominate directors pursuant to section 3.1 and
shall be entitled to exercise such right as if such right were originally
granted to the Affiliate Transferee hereunder.
4.3 Third Party Transferees May Be Bound
(a) A Shareholder (the "Transferor") may, subject to paragraph (b), but
shall not be obliged to, require, as a condition to any sale, assignment,
transfer or other disposition by it of its interest in any Common Shares to a
third party (the "Third Party
11
<PAGE>
Transferee"), that the Third Party Transferee agree in writing to be bound by
the terms and conditions of this Agreement. Upon the execution by a Third Party
Transferee of an agreement to be bound by the terms and conditions hereof, the
Third Party Transferee shall be bound by this Agreement and shall be deemed to
be a Shareholder for the purposes hereof; provided that, notwithstanding any
other provision hereof, a Third Party Transferee of Common Shares from a
Transferor who has a right to nominate directors pursuant to Article III shall
not be entitled to such right as the transferee of such Common Shares unless the
assignment of such right to the Third Party Transferee is specifically provided
by the Transferor to the Third Party Transferee in writing and is consented to
by each Shareholder who is at such time the holder of not less than 7% of the
then outstanding Common Shares.
(b) If any Transferee enters into an agreement with a Transferor pursuant
to which the Transferee agrees to vote any or all of the Common Shares
transferred to it in favour of the nominees of the Transferor to the Board of
Directors, then the Transferor shall require the Third Party Transferee to agree
in writing with or in favour of the remaining parties hereto to be bound by the
terms and conditions of this Agreement, provided that the Transferee need only
agree to be bound by this Agreement until July 31, 1998.
ARTICLE V
NO AMENDMENT TO ARTICLES OR BY-LAWS
5.1 No Amendments to Articles or By-laws
The parties agree that unless and until a Public Offering is
completed, they shall use their reasonable efforts to ensure that no amendment
shall be made to the articles or by-laws of the Corporation that would impose
any share transfer restrictions that would (if not removed) prevent listing of
the Common Shares (or of any warrants to purchase Common Shares) on at least one
National Exchange or that would otherwise be inconsistent with the provisions or
intent of this Agreement.
ARTICLE VI
PRE-EMPTIVE RIGHT
6.1 Pre-emptive Right
(a) If the Corporation proposes to issue any securities of the Corporation
to any one or more of Blackstone, Whitehall or Teachers (any one or more of whom
are referred to in this section as the "Purchaser") other than pursuant to a
Public Offering, the Shareholders shall use their reasonable best efforts to
make such securities available on a pro rata basis to Blackstone, Whitehall or
Teachers, as the case may be, on the same terms and conditions.
12
<PAGE>
(b) If the Corporation does not offer such securities to each of
Blackstone, Whitehall and Teachers on a pro rata basis, then any Purchaser shall
offer to sell a portion of any securities acquired by it to those of Blackstone,
Whitehall or Teachers who have not had the opportunity to purchase their pro
rata share of such securities from the Corporation (the "Offerees") so that
after such sale each of the Offerees that wishes to acquire such securities
shall have had the opportunity to purchase its pro rata share of the securities
issued by the Corporation either directly from the Corporation or failing
availability from the Corporation, from the Purchaser. Any offer to sell by a
Purchaser shall be on the same terms and conditions as the Purchaser acquired
such offered securities from the Corporation and shall be open for acceptance
for at least 21 days, provided that if the offer is made at least 10 days before
the securities are issued, then the offer will expire on the date of issuance
thereof or such later date as may be specified by the Purchaser in the offer.
The offer can be made prior to the issuance of the securities by the Corporation
or, in any event, within 10 days thereafter. To the extent possible, the
Purchaser shall sell, transfer and assign to any purchasing Offeree all of the
rights associated with the securities so purchased including, without
limitation, any registration rights associated with such securities.
Notwithstanding anything contained herein, no party shall be obligated to sell
any securities to any other party if such sale would result in a material tax
liability to the seller or the Shareholders or impose any liability or
obligation whatsoever on the seller; for the purposes of this paragraph,
materiality shall be determined having regard for the fact that the seller of
the securities will obtain no benefit whatsoever from the sale of the securities
and is effecting such transaction solely as an accommodation to the other
parties.
(c) For the purposes of this section 6.1, the pro rata share of any party
of any distribution will be determined by reference to the number of Common
shares held by it and its Affiliates at the date of such offering.
ARTICLE VII
GENERAL
7.1 Term and Termination
This Agreement shall come into force and effect as at and from the
date hereof and shall continue in force until the earliest of:
(a) the date upon which none of Blackstone, Teachers or Whitehall owns 5%
or more of the then outstanding Common Shares of the Corporation;
(b) the date upon which this Agreement is terminated by written agreement
among each Shareholder who is at such time the holder of not less than
7% of the then outstanding Common Shares;
13
<PAGE>
(c) the fifth anniversary of the date of this Agreement; and
(d) the date upon which this Agreement is terminated by written agreement
among each of the parties hereto.
7.2 Notice
Any demand, notice or other document required or permitted to be given
hereunder shall be in writing and shall be given by delivery or by telecopy to
the respective parties as follows:
(a) if to Blackstone:
c/o BREA L.L.C.
118 North Bedford Rd., Suite 300
Mount Kisco, NY
10549
Attention: Thomas J. Saylak
Telecopier: (914) 241-3786
(b) if to Teachers:
Ontario Teachers' Pension Plan Board
5650 Yonge Street
North York, Ontario
M2M 4H5
Attention: Brian Muzyk
Telecopier: (416) 730-5374
(c) if to Whitehall:
WHCF Real Estate Limited Partnership
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Ralph Rosenberg
Telecopier: (212) 902-3000
Any such demand, notice or other document, if delivered personally, shall be
deemed to have been received by and given on the date of delivery (provided that
such day is a Business Day and, if not on the next following Business Day) and,
if sent by telecopier, shall be deemed to have been received by and given on the
date sent (provided that it
14
<PAGE>
is sent prior to 2:00 p.m. (local time of the recipient) on a Business Day and,
if not, on the next following Business Day). Any party may at any time give
notice to the other parties of any change of address in accordance with the
foregoing provisions hereof.
7.3 Entire Agreement
This Agreement sets forth the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions of the parties, whether oral or
written, and there are no warranties, representations or other agreements
between all of the parties hereto in connection with the subject matter hereof
except as specifically set forth herein.
7.4 Amendment
No supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by all of the parties hereto. Any amendment
to paragraphs 3.1(e), 3.1(h), 3.2(b) or 3.6 (iii) shall not be effective unless
approved in writing by the Independent Directors.
7.5 Waiver
No waiver of any of the provisions of this Agreement shall be deemed
to be or shall constitute a waiver of any other provision, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
7.6 Benefit of the Agreement
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. No
Shareholder shall assign the rights or benefits under this Agreement without the
prior written consent of the other Shareholders except as specifically provided
for herein.
7.7 Counterparts
This Agreement may be executed in any number of counterparts by any
one or more of the parties to be bound hereby. Each executed counterpart shall
be deemed to be an original and such counterparts shall together constitute one
and the same agreement.
7.8 Severability
The invalidity or unenforceability of any provision or part of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision or part thereof, and any such invalid or unenforceable
provision or part thereof shall be deemed to be separate, severable and
distinct, and no provision or part thereof shall be
15
<PAGE>
deemed dependent upon any other provision or part thereof unless expressly
provided for herein.
7.9 No Partnership
Nothing contained in this Agreement shall be deemed in any way or for
any purpose to constitute any party a partner or agent or legal representative
of any other party in the conduct of any business or otherwise, or a member of a
joint venture or joint enterprise with any other party, or to create any
fiduciary relationship among them, except as provided in section 1.7.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
Number of Shares BRE/CF EQUITY ACQUISITION L.P.
Held on the date hereof
4,455,689 by--------------------------------------
BLACKSTONE REAL ESTATE
PARTNERS II L.P.
126,500 by--------------------------------------
BLACKSTONE REAL ESTATE
PARTNERS IV L.P.
37,950 by--------------------------------------
BLACKSTONE RE CAPITAL PARTNERS
II L.P.
23,909 by--------------------------------------
<PAGE>
BLACKSTONE CF EQUITY
ACQUISITION L.P.
1,605,952 by--------------------------------------
ONTARIO TEACHERS' PENSION PLAN
BOARD
12,500,000 by--------------------------------------
WHCF REAL ESTATE LIMITED PARTNERSHIP by its
General Partner, Whitehall Street Real Estate
Limited Partnership V
13,735,471 by--------------------------------------
by its General Partner,
WH Advisors, L.P. V
by--------------------------------------
by its General Partner,
WH Advisors, Inc. V
by--------------------------------------
<PAGE>
BREA L.L.C. hereby accepts its appointment as agent pursuant to
section 1.7.
BREA L.L.C.
by--------------------------------------
<PAGE>
AMENDMENT TO SHAREHOLDERS' AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 26th day of August, 1997.
B E T W E E N:
BRE/CF EQUITY ACQUISITION L.P.,
BLACKSTONE REAL ESTATE PARTNERS II L.P.,
BLACKSTONE REAL ESTATE PARTNERS IV L.P., and
BLACKSTONE RE CAPITAL PARTNERS II L.P.,
limited partnerships constituted under the
laws of the Stare of Delaware, and BLACKSTONE
CF EQUITY ACQUISITION L.P., a limited
partnership constituted under the laws of the
Cayman Islands,
(collectively hereinafter referred to as
"Blackstone"),
OF THE FIRST PART,
- and -
ONTARIO TEACHERS' PENSION PLAN BOARD, a
corporation continued under the Teachers'
Pension Act (Ontario),
(hereinafter referred to as "Teachers"),
OF THE SECOND PART,
- and -
WHCF REAL ESTATE LIMITED PARTNERSHIP, a
limited partnership constituted under the
laws of the State of Delaware,
(hereinafter referred to as "Whitehall"),
OF THE THIRD PART.
<PAGE>
WHEREAS the parties entered into a shareholders' agreement dated as of
July 31, 1995 (the "Shareholders' Agreement") relating to Cadillac Fairview
Corporation (the "Corporation") and their respective interests therein as
shareholders;
AND WHEREAS the Corporation is proposing to make a Public Offering of
its Common Shares pursuant to a prospectus which will be filed with securities
commissions in Canada and possibly with the Securities and Exchange Commission
in the United States;
AND WHEREAS the parties wish to amend the Shareholders' Agreement,
which amendment will be effective upon the earlier of (i) the issuance of Common
Shares of the Corporation to the public pursuant to the prospectus offering or
(ii) immediately prior to a shareholders' meeting at which the amendments to the
Corporation's articles and by-laws described in paragraph 2 hereof are to be
considered;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
respective covenants and agreements of the parties contained herein and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged by each of the parties hereto), it is hereby agreed as
follows:
1. INTERPRETATION. Where used herein, unless there is something in the
context or the subject matter inconsistent therewith, the terms and words which
are defined in the Shareholders' Agreement shall have the same meanings in this
agreement.
2. AMENDMENT TO THE CORPORATION'S ARTICLES AND BY-LAWS. At any meeting
called by the Board of Directors of the Corporation for such purpose, the
parties shall vote their Common Shares in favour of amendments to the articles
and by-laws of the Corporation which will provide for the following:
(a) the Corporation shall have a minimum of seven and a maximum of 13
Directors;
(b) an amendment to delete parts (1) and (2) of section 10 of the
Corporation's articles;
(c) an amendment to the Corporation's by-laws to delete paragraph 20 of
By-law No. 1 and the definitions of "First Meeting", "Independent
Director", "Nominators" and "Plan"; and
(d) to amend By-law No. 1 of the Corporation to provide that directors
shall be elected for a term of one year or until their successors are
elected or appointed.
The covenant in this section is intended to benefit the Corporation and may be
specifically enforced by the Corporation.
2
<PAGE>
3. INDEPENDENT DIRECTORS. Paragraph 3.1(e) of the Shareholders' Agreement
shall be deleted and the following shall be substituted therefor:
"(e) At the first meeting of shareholders after the date of
this agreement, the Board of Directors shall be
entitled to nominate not less than seven directors who
are, in the opinion of the Board of Directors,
independent of Blackstone, Teachers and Whitehall, and
any Affiliate or associate thereof. Such directors may
include Russel S. Bernard and Robert E. Bellamy and
shall include Bruce Duncan."
4. VACANCIES. Paragraph 3.2(b) of the Shareholders' Agreement is deleted
and the following is substituted therefor;
"(b) if a vacancy in the Board of Directors arises and the
vacating director was appointed pursuant to section
3.1(e) or any successor of such a director, the Board
of Directors shall appoint a director to replace such
vacating director."
5. DELETION OF PORTIONS OF SHAREHOLDERS' AGREEMENT. Sections 3.1(a), 3.4,
3.6(iii), 5.1 and 6.1 of the Shareholders' Agreement are hereby deleted.
6. BALANCE OF SHAREHOLDERS' AGREEMENT. In all other respects, the
Shareholders' Agreement shall remain in full force and effect unamended.
7. COUNTERPARTS. This Agreement may be executed in counterpart and when
each of the parties has executed and delivered a counterpart to the Corporation
shall constitute a binding agreement.
IN WITNESS WHEREOF the parties hereto have executed this amending
agreement.
BRE/CF EQUITY ACQUISITION L.P.
by-----------------------------------
BLACKSTONE REAL ESTATE
PARTNERS II L.P.
by-----------------------------------
<PAGE>
BLACKSTONE REAL ESTATE
PARTNERS IV L.P.
by-----------------------------------
BLACKSTONE RE CAPITAL
PARTNERS II L.P.
by-----------------------------------
BLACKSTONE CF EQUITY
ACQUISITION L.P.
by-----------------------------------
ONTARIO TEACHERS' PENSION PLAN
BOARD
by-----------------------------------
WHCF REAL ESTATE LIMITED PARTNERSHIP by its
General Partner, Whitehall Street Real
Estate Limited Partnership V
by-----------------------------------
by its General Partner,
WH Advisors, L.P. V
by-----------------------------------
by its General Partner,
WH Advisors, Inc. V
by-----------------------------------
Pursuant to section 7.4 of the Shareholders' Agreement, the
undersigned, being the Independent Directors of the Corporation, hereby consent
to the amendment of the Shareholders' Agreement in the manner described above
and to the corresponding amendments to the Corporation's articles and by-laws.
- ---------------------------- ----------------------------
Russel S. Bernard Robert E. Bellamy
EXHIBIT 2
CADILLAC FAIRVIEW CORPORATION
20 QUEEN STREET WEST
TORONTO, ONTARIO
M5H 3R4
March 3, 1999
Ontario Teachers' Pension Plan Board
WHCF Real Estate Limited Partnership
BRE/CF Equity Acquisition L.P.
Blackstone Real Estate Partners II L.P.
Blackstone Real Estate Partners IV L.P.
Blackstone RE Partners II L.P.
Blackstone CF Equity Acquisition L.P.
TCW Asset Management Company, as agent and on behalf of certain funds and
accounts
Dear Sirs:
The purpose of this letter agreement is to document our mutual
agreement respecting the matters set out herein, relating to Cadillac Fairview
Corporation ("CF").
Each addressee hereof (a "Shareholder") hereby agrees with each other
Shareholder and with CF as follows:
1. Each Shareholder hereby represents and warrants to each other
Shareholder and to CF that such Shareholder, and/or one or more of its
affiliates and associates, is a registered holder and/or a beneficial owner of
securities of CF.
2. During the term of this letter agreement, without the prior written
consent of each other party hereto including CF, no Shareholder, either directly
or indirectly or together with or through one or more of its affiliates or
associates or any one or more persons with whom it is "acting jointly or in
concert", whether through its or their respective officers, directors,
employees, advisors, representatives, or otherwise, will, in its capacity as a
securityholder of CF:
(a) acquire or sell, announce an intention to acquire or sell, offer or
propose to acquire or sell, solicit an offer to acquire or sell or
agree to acquire or sell, or enter into any agreement, arrangement or
undertaking to acquire or sell, directly or indirectly, by purchase,
gift or otherwise, any direct or indirect interest in any of the
common shares of CF or any direct or indirect rights, warrants or
options to acquire any common shares of CF (other than in the ordinary
course of a broker-dealer and, in the case of WHCF Real Estate Limited
Partnership, other than the asset management business of The Goldman
Sachs Group, L.P. (except
<PAGE>
- 2 -
for Whitehall Street Real Estate Limited Partnership V and its
predecessors and successors which shall remain subject to the
restrictions in this paragraph));
(b) form, encourage the formation of, join or in any way participate in
any group of persons "acting jointly or in concert" with respect to a
purchase of common shares of CF (other than any group that may be
deemed to exist (i) among any or all of the parties to this agreement
by virtue of this agreement or the shareholders' agreement dated July
31, 1995, as amended on August 26, 1997 among Ontario Teachers'
Pension Plan Board, WHCF Real Estate Limited Partnership, BRE/CF
Equity Acquisition L.P., Blackstone Real Estate Partners II L.P.,
Blackstone Real Estate Partners IV L.P., Blackstone RE Partners II
L.P. and Blackstone CF Equity Acquisition L.P., or (ii) among any
addressees of this letter and any of its affiliates);
(c) arrange, or in any way participate, directly or indirectly, in any
financing for the purchase of any common shares of CF (other than in
the ordinary course of a broker-dealer and, in the case of WHCF Real
Estate Limited Partnership, other than the asset management business
of The Goldman Sachs Group, L.P. (except for Whitehall Street Real
Estate Limited Partnership V and its predecessors and successors which
shall remain subject to the restrictions in this paragraph);
(d) solicit, make, or in any way participate in, directly or indirectly,
any solicitation of proxies from the securityholders of CF (other than
in the ordinary course of a broker-dealer and, in the case of WHCF
Real Estate Limited Partnership, other than the asset management
business of The Goldman Sachs Group, L.P. (except for Whitehall Street
Real Estate Limited Partnership V and its predecessors and successors
which shall remain subject to the restrictions in this paragraph), or
call or seek to have called any meeting of the securityholders of CF;
(e) enter into any new agreement, understanding or arrangement with any
person with respect to the holding, voting or disposition of any
common shares of CF; or
(f) (1) solicit, propose, seek to effect, initiate, encourage or negotiate
with any other person with respect to any merger, amalgamation,
arrangement or other form of business combination transaction with or
involving CF, or any restructuring, recapitalization or similar
transaction with respect to or involving CF, (2) solicit, make or
propose to negotiate with any other person with respect to, or
announce an intention to make, any tender offer, takeover bid or
exchange offer for any securities of CF, (3) disclose an intent,
purpose, plan or proposal with respect to CF, or any securities of CF,
inconsistent with the provisions of this letter agreement, or (4)
assist, participate in, facilitate, encourage or solicit any effort or
attempt by any person to do or seek to do any of the foregoing.
<PAGE>
- 3 -
For purposes of this letter agreement, it is a question of fact as to
whether a person is acting jointly or in concert with another person and,
without limiting the generality of the foregoing, the following shall be
presumed to be acting jointly or in concert with a person (the "FIRST PERSON"):
(i) every person who has any agreement, arrangement, commitment or
understanding (whether formal or informal and whether or not in
writing) with the First Person, any associate or affiliate of the
First Person or any other person acting jointly or in concert
with the First Person, for the purpose of acquiring or offering
to acquire or selling or offering to sell any common shares of CF
including, without limitation, any one or more of, or any
combination of, a put, call, option, forward sale or purchase or
other right or obligation relating to the sale or disposition of
any common shares of CF, or any security, the value of which
varies with the value of common shares of CF, to the First
Person, any associate or affiliate of the First Person or any
other person acting jointly or in concert with the First Person
or any agreement, arrangement, commitment or understanding
(whether formal or informal and whether or not in writing)
pursuant to which all or substantially all of the economic or
market risk underlying a common share of CF, directly or
indirectly, is transferred to, or assumed by, the First Person,
any associate or affiliate of the First Person or any other
person acting jointly or in concert with the First Person;
(ii) every person who has any agreement, arrangement, commitment or
understanding (whether formal or informal and whether or not in
writing) with the First Person, any associate or affiliate of the
First Person or any other person acting jointly or in concert
with the First Person, for the purpose or with the intention of
exercising jointly or in concert with the First Person, any
associate or affiliate of the First Person or any other person
acting jointly or in concert with the First Person, any voting
rights attaching to any securities of CF; and
(iii) every associate or affiliate of the First Person.
The provisions of this section 2 shall not serve to prohibit any
Shareholder from providing professional services to any person (including
without limitation CF) in the ordinary course of business, consistent with past
practice, with respect to or involving CF or any securities or assets of CF,
provided that the provision of such professional services to such person has
been approved in advance by the Board of Directors of CF.
3. This letter agreement shall be effective immediately upon its execution
by the parties hereto and shall terminate on the earliest of the following dates
(the "Termination Date"):
(a) 11:59 p.m. on April 6, 1999;
<PAGE>
- 4 -
(b) the 7th day following receipt by each of the other parties hereto of
notice from any party hereto terminating such party's obligations
hereunder (which termination shall be effective as of the Termination
Date); and
(c) the effective date of any shareholder rights plan agreement involving
CF.
4. Except as required by applicable law, none of the parties hereto shall
make any public announcement or statement with respect to this letter agreement
without the approval of the other parties hereto. Moreover, in any event, each
party agrees to give prior notice to the other parties of any public
announcement relating to this letter agreement, and agrees to consult with each
other party prior to issuing each such public announcement.
5. All notices, requests, demands and other communications hereunder
shall be deemed to have been duly given and made if in writing and if served by
personal delivery upon the party for whom it is intended or, if sent by
facsimile transmission, upon receipt of confirmation that such transmission has
been received, to the party at the address set forth below, or such other
address as may be designated in writing hereafter, in the same manner, by such
party. The date of receipt of any such notice or other communication if
delivered personally shall be deemed to be the date of delivery thereof, or if
sent by facsimile transmission the date of such transmission if sent during
normal business hours on a business day, failing which it shall be deemed to
have been received on the next business day.
If to Ontario Teachers' Pension Plan Board:
5650 Yonge Street
Toronto, Ontario
M2M 4H5
Attention: Brian Muzyk
Telephone: (416) 730-5387
Fax: (416) 730-5018
If to WHCF Real Estate Limited Partnership:
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York
10004
Attention: Ralph Rosenberg
Telephone: (212) 902-1085
Fax: (212) 357-5505
<PAGE>
- 5 -
If to BRE/CF Equity Acquisition L.P., Blackstone Real Estate Partners
II L.P., Blackstone Real Estate Partners IV L.P., Blackstone RE
Partners II L.P. or Blackstone CF Equity Acquisition L.P.:
c/o The Blackstone Group L.P.
345 Park Avenue, 31st Floor
New York, New York
10154
Attention: Thomas J. Saylak
Telephone: (212) 836-9895
Fax: (212) 754-8726
If to TCW Asset Management Company
c/o Oaktree Capital Management, LLC
333 South Grand Avenue, 28th Floor
Los Angeles, California
80071
Attention: Kenneth Liang
Telephone: (213) 830-6422
Fax: (213) 830-8522
If to CF:
20 Queen Street West
5th Floor
Toronto, Ontario
M5H 3R4
Attention: Peter J. Barbetta
Telephone: (416) 598-8445
Fax: (416) 598-8222
Any party may at any time change its address for service from time to
time by giving notice to the other parties in accordance with this section 5.
6. If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated and the parties shall
negotiate in good faith to modify this letter agreement to preserve each party's
anticipated benefits under this letter agreement.
<PAGE>
- 6 -
7. This letter agreement constitutes the entire agreement and supersedes
all other prior agreements and undertakings, both written and oral, among the
parties with respect to the subject matter hereof.
8. This letter agreement may be executed in any number of counterparts
and by facsimile signature, each of which shall be deemed to be an original and
all of which taken together shall be deemed to constitute one and the same
instrument.
9. Each party hereto recognizes and acknowledges that a breach by it of
its covenants or agreements contained in this letter agreement will cause the
other parties hereto to sustain damages for which such parties may not have an
adequate remedy at law for money damages and, therefore, each party hereto
agrees that in the event of such a breach by it, the other parties hereto shall
be entitled to the remedy of specific performance of such covenant or agreement
and to injunctive and other equitable relief in addition to any other remedy to
which they may be entitled at law or in equity.
10. Time shall be of the essence of this letter agreement.
11. This letter agreement shall be governed in all respects, including
validity, interpretation and effect, by the laws of the Province of Ontario and
the federal laws of Canada applicable therein, without giving effect to the
principles of conflicts of laws thereof, and all actions and proceedings arising
out of or relating to this letter agreement shall be heard and determined
exclusively in the courts of the Province of Ontario and the parties hereto
hereby attorn to the jurisdiction of such courts.
12. This letter agreement may not be amended except by an instrument in
writing signed by each of the parties hereto.
--------------------------------
If the foregoing accurately reflects the terms and conditions of our
mutual agreement, would you kindly indicate your acceptance hereof by signing,
dating and returning to CF the enclosed duplicate originals of this letter
agreement. Upon receipt of fully executed original copies from each party
hereto, CF will deliver to each other party hereto an executed original copy of
this letter agreement.
Yours very truly,
CADILLAC FAIRVIEW CORPORATION
By: /s/ Peter J. Barbetta
-------------------------------
By: /s/ Jon Hagan
-------------------------------
<PAGE>
- 7 -
-----------------------------
Irrevocably accepted and agreed.
ONTARIO TEACHERS' PENSION PLAN
BOARD
By: /s/ Brian Muzyk
-------------------------------
BRE/CF EQUITY ACQUISITION L.P. BLACKSTONE RE PARTNERS II L.P.
By: /s/ Thomas J. Saylak By: /s/ Thomas J. Saylak
------------------------------- -------------------------------
BLACKSTONE REAL ESTATE BLACKSTONE CF EQUITY
PARTNERS II L.P. ACQUISITION L.P.
By: /s/ Thomas J. Saylak By: /s/ Thomas J. Saylak
------------------------------- -------------------------------
BLACKSTONE REAL ESTATE
PARTNERS IV L.P.
By: /s/ Thomas J. Saylak
-------------------------------
<PAGE>
- 8 -
WHCF REAL ESTATE LIMITED
PARTNERSHIP
BY ITS GENERAL PARTNER, WHITEHALL STREET
REAL ESTATE LIMITED PARTNERSHIP V
By: /s/ Alan S. Kava
-------------------------------
BY ITS GENERAL PARTNER,
WH ADVISORS, L.P. V
By: /s/ Alan S. Kava
-------------------------------
BY ITS GENERAL PARTNER,
WH ADVISORS INC V
By: /s/ Alan S. Kava
-------------------------------
TCW ASSET MANAGEMENT
COMPANY
AS AGENT AND ON BEHALF OF CERTAIN
FUNDS AND ACCOUNTS
By: /s/ Kenneth Liang
-------------------------------
By: /s/ Marc Porosoff
-------------------------------
EXHIBIT 3
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) promulgated under the Securities
Exchange Act of 1934, the undersigned agree to the joint filing of a Statement
on Schedule 13D (including any and all amendments thereto) with respect to the
Common Shares, no par value, of Cadillac Fairview Corporation, and further agree
to the filing of this Agreement as an Exhibit thereto. In addition, each party
to this Agreement expressly authorizes each other party to this Agreement to
file on its behalf any and all amendments to such Statement.
March 17, 1999
GOLDMAN, SACHS & CO. THE GOLDMAN SACHS GROUP,
L.P.
By: /S/ Hans L. Reich By: /S/ Hans L. Reich
------------------------ ----------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
WHCF REAL ESTATE LIMITED WH ADVISORS, L.P. V
PARTNERSHIP
By: /S/ Hans L. Reich By: /S/ Hans L. Reich
------------------------ ----------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: /S/ Hans L. Reich
-----------------------
Name: Hans L. Reich
Title: Attorney-in-fact
