<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) APRIL 21, 1999
CORT BUSINESS SERVICES CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1-14146 54-1662135
(STATE OR OTHER JURISDICTION (COMMISSION (I.R.S. EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
4401 FAIR LAKES COURT
FAIRFAX, VIRGINIA 22033
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (703) 968-8500
<PAGE> 2
ITEM 5. OTHER EVENTS
On April 21, 1999, CORT Business Services Corporation, a Delaware
corporation (the "Company"), issued a press release (the "Press Release")
announcing its financial results for the first quarter ended March 31, 1999. In
the Press Release, the Company also announced that pursuant to that certain
Agreement and Plan of Merger (the "Merger Agreement"), dated as of March 25,
1999, among the Company, CBF Holding LLC, a Delaware limited liability company,
and CBF Mergerco Inc., a Delaware corporation, the Company had received copies
of highly confident letters for the debt financing required to complete the
transactions contemplated by the Merger Agreement. For more information, (i) a
copy of the Press Release is attached hereto as Exhibit 99.1, (ii) a copy of a
letter from Credit Suisse First Boston Corporation to CBF Holding LLC dated
April 21, 1999 is attached hereto as Exhibit 99.2, and (iii) a copy of a letter
from NationsBank N.A. and NationsBanc Montgomery Securities LLC to CBF Holding
LLC dated April 21, 1999 is attached hereto as Exhibit 99.3.
Additionally, the Company has confirmed that three alleged stockholders
have separately filed complaints in Delaware Chancery Court against the Company,
each of the Company's directors, and Citicorp Venture Capital Ltd. One of the
three complaints also includes Bruckmann, Rosser, Sherrill & Co. as an
additional defendant. Each complaint alleges breaches of fiduciary duties in
connection with the directors' approval of the merger and other claims. The
complaints purport to be class action complaints and the plaintiffs seek to
enjoin the transactions contemplated by the Merger Agreement or, in the
alternative, to recover compensatory damages. The Company believes that the
claims are without merit. Copies of each complaint are attached hereto as
Exhibit 99.4, Exhibit 99.5 and Exhibit 99.6.
ITEM 7. EXHIBITS
99.1 Press Release of April 21, 1999.
99.2 Letter from Credit Suisse First Boston Corporation to CBF Holding LLC
dated April 21, 1999.
99.3 Letter from NationsBank N.A. and NationsBanc Montgomery Securities LLC
to CBF Holding LLC dated April 21, 1999.
99.4 Complaint in the Court of Chancery of the State of Delaware, naming
Michael Sternberg, as Plaintiff, and the Company, each of the directors
of the Company, and Citicorp Venture Capital Ltd., as Defendants.
99.5 Complaint in the Court of Chancery of the State of Delaware, naming
Harbor Finance Partners, as Plaintiff, and the Company, each of the
directors of the Company, and Citicorp Venture Capital Ltd., as
Defendants.
99.6 Complaint in the Court of Chancery of the State of Delaware, naming
Harold Shapiro, as Plaintiff, and the Company, each of the directors of
the Company, Bruckmann, Rosser, Sherrill & Co. and Citicorp
Venture Capital Ltd., as Defendants.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CORT BUSINESS SERVICES CORPORATION
/s/ FRANCES ANN ZIEMNIAK
-------------------------------------
Date: April 29, 1999 By: Frances Ann Ziemniak
Executive Vice President and
Chief Financial Officer
<PAGE> 3
EXHIBIT INDEX
Exhibit No. Description
99.1 Press Release of April 21, 1999.
99.2 Letter from Credit Suisse First Boston Corporation to CBF
Holding LLC dated April 21, 1999.
99.3 Letter from NationsBank N.A. and NationsBanc Montgomery
Securities LLC to CBF Holding LLC dated April 21, 1999.
99.4 Complaint in the Court of Chancery of the State of Delaware,
naming Michael Sternberg, as Plaintiff, and the Company, each
of the directors of the Company, and Citicorp Venture Capital
Ltd., as Defendants.
99.5 Complaint in the Court of Chancery of the State of Delaware,
naming Harbor Finance Partners, as Plaintiff, and the Company,
each of the directors of the Company, and Citicorp Venture
Capital Ltd., as Defendants.
99.6 Complaint in the Court of Chancery of the State of Delaware,
naming Harold Shapiro, as Plaintiff, and the Company, each of
the directors of the Company, Bruckmann, Rosser, Sherrill &
Co. and Citicorp Venture Capital Ltd., as Defendants.
<PAGE> 1
EXHIBIT 99.1
[CORT BUSINESS SERVICES LOGO]
PRESS RELEASE
FOR IMMEDIATE RELEASE
For more information contact:
Frances Ann Ziemniak
Executive Vice President & CFO
(703) 968-8524
CORT BUSINESS SERVICES CORPORATION
ANNOUNCES FIRST QUARTER RESULTS
Fairfax, VA, April 21, 1999 --- CORT Business Services Corporation (NYSE: CBZ)
today reported revenue and earnings for the first quarter ended March 31, 1999.
Revenues for the quarter rose 14.5% to $86.4 million compared to $75.4 million
for the first quarter of 1998. Operating earnings rose 6.2% to $13.4 million.
Net income for the quarter was $6.9 million or $0.51 per share. These results
represent an 11.3% increase over net income of $6.2 million for the first
quarter of 1998, and a 10.9% increase over earnings per share of $0.46 for the
same quarter last year.
Commenting on CORT's results for the first quarter, Paul N. Arnold, President
and Chief Executive Officer, said, "I am pleased with the Company's overall
performance. We continue to integrate acquisitions and to make the investments
necessary to strengthen our business while delivering increased earnings. In
particular, I'd like to note that our trade show division, which expanded
significantly through acquisition late in 1998, performed well in this, its
busiest, quarter.
"Rental revenues grew 14.3% while sales revenues increased 15.4% compared to
last year. Despite a strong quarter overall, we were disappointed by core rental
revenue growth. Core growth, which is growth before the impact of acquisitions
and trade show operations, increased about 2%. Improving this measure is an
important objective for us, and I am confident that we are taking the right
steps to achieve that.
"Gross margins declined slightly during the quarter compared to the year-earlier
period as a result of lower sales margins as we acted aggressively to reduce the
Company's level of idle inventory," Mr. Arnold said.
"For the first quarter of 1999, selling, general and administrative expenses
increased as a percentage of revenue as a result of continuing investments in
personnel, facilities, and the development of an effective Internet business
channel. The operating margin for the first quarter was approximately 15.5%
compared to 16.7% for the same quarter last year.
<PAGE> 2
"Earlier this month we completed two small transactions with Aaron Rents that we
expect will make modest but positive improvements to our profitability going
forward. We acquired from Aaron their furniture rental contracts in the New
Orleans market and sold to them our furniture rental contracts and real estate
leases in the Birmingham, Alabama market," said Mr. Arnold.
On another matter, CORT also announced today that it has been informed by the
investor group with whom it has signed a merger agreement that the investor
group has received commitment and highly confident letters for the debt
financing required to complete the transaction. The transaction was announced on
March 26, 1999, and the investor group includes the private investment firm
Bruckmann, Rosser, Sherrill & Co., Inc. and members of the Company's management
team. The Company continues to expect that the transaction will be completed by
the end of the second quarter of 1999.
CORT Business Services Corporation is the leading provider of rental furniture,
accessories and related services in the "rent-to-rent" segment of the furniture
industry. CORT provides quality products and services to corporate and
individual customers to meet their temporary furniture needs, including those
for office, residential and trade show furnishings. The Company operates 119
rental showrooms, 83 furniture clearance centers and 75 warehouses in 34 states
and the District of Columbia.
The statements which are not historical facts contained in this press release
are forward-looking statements that involve certain risks and uncertainties
including but not limited to risks associated with the uncertainty of future
financial results, acquisitions, additional financing requirements, development
of new products and services, the effect of competitive products or pricing, the
effect of economic conditions and other uncertainties detailed in the Company's
filings with the Securities and Exchange Commission.
(table follows)
<PAGE> 3
CORT BUSINESS SERVICES CORPORATION
RESULTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1999 1998
---- ----
<S> <C> <C>
Furniture rental $71,795 $62,814
Furniture sales 14,569 12,629
------ ------
Total revenue 86,364 75,443
Cost of furniture rental & sales 21,718 18,702
Selling, general & administrative expenses 51,292 44,166
------ ------
Operating earnings 13,354 12,575
Interest expense 1,421 1,967
Income tax expense 5,040 4,417
----- -----
Net income 6,893 6,191
----- -----
Earnings per common share:
Basic $0.53 $0.48
Diluted $0.51 $0.46
===== =====
Shares used in per share computations:
Basic 13,087 12,924
Diluted 13,394 13,472
====== ======
</TABLE>
# # #
<PAGE> 1
EXHIBIT 99.2
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010
April 21, 1999
CBF Holding LLC
c/o Bruckmann, Rosser, Sherrill & Co.
126 East 56th Street, 29th Floor
New York, New York 10022
Attn: Bruce Bruckmann
Re: Senior Subordinated Notes
Dear Ladies and Gentlemen:
You have advised Credit Suisse First Boston ("CSFB") that Bruckmann,
Rosser, Sherrill & Co. ("BRS") has formed CBF Holding LLC ("Holdings" or "you" )
that together with Citicorp Venture Capital, Ltd. will (i) acquire (the
"Acquisition") all of the outstanding common stock of CORT Business Services
Corporation ("CORT") pursuant to a merger of a wholly owned subsidiary of
Holdings, CBF Mergerco, Inc., with and into CORT and (ii) refinance (the
"Refinancing"), in connection with the Acquisition, certain of CORT's
indebtedness. References to the "Company" mean CORT after giving effect to the
Acquisition and Refinancing.
You have further advised us that, in connection with such Acquisition
and Refinancing, you intend to have CBF Mergerco, Inc. issue senior subordinated
notes (the "Securities") in the aggregate principal amount of $250.0 million.
We are pleased to inform you that, assuming satisfactory market
conditions at the time of the proposed issuance, we are highly confident of our
ability to sell or place the Securities. The structure, covenants and terms of
the Securities will be as determined by Credit Suisse First Boston Corporation
in consultation with you based on market conditions at the time of the offering
or placement.
Our view as to our ability to consummate the offering or placement of
the Securities is subject to (i) there being at the time of such offering or
placement no material adverse change in the financial condition, results of
operations, business or prospects of the Company and its subsidiaries, taken as
a whole, since March 31, 1999, (ii) there being at the
<PAGE> 2
time of such offering or placement satisfactory market conditions for high-yield
securities comparable in terms, structure and credit rating to the Securities,
(iii) the delivery of audited and unaudited historical financial statements of
the Company as would be required by the Securities Act of 1933, as amended, and
the rules and regulations promulgated pursuant thereto for a registration
statement filed thereunder with respect to the Securities, (iv) our being
satisfied with the consolidated pro forma capitalization of the Company after
giving effect to the issuance of the Securities with respect to any changes from
the capitalization contemplated on the date hereof, (v) our completion of our
due diligence investigation of the Company and its business as a result of which
no information having come to our attention since the date hereof which we
reasonably believe would have a material adverse effect on the business,
condition (financial or otherwise), prospects or results of operations of the
Company and its subsidiaries taken as a whole, and (vi) the execution of a
customary underwriting, purchase or placement agreement and the satisfaction of
the conditions stated therein in all material respects, and of a customary
indenture, registration rights agreement, if applicable, and other customary
documentation, in each case with respect to the Securities, in form and
substance reasonably satisfactory to Credit Suisse First Boston Corporation.
The letter is solely for use by you and the Company and may not be
disclosed, except to representatives of the Company, without our prior written
consent. This letter does not reflect a commitment to underwrite or place the
Securities and shall be effective upon the date hereof and shall expire on
October 31, 1999.
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Mark W. Kennelley
----------------------------------
Name: Mark W. Kennelley
Title: Managing Director
By: /s/ Jeffrey Howe
-----------------------------------
Name: Jeffrey Howe
Title: Director
<PAGE> 1
EXHIBIT 99.3
NATIONSBANK, N.A.
NATIONSBANK CORPORATE CENTER
100 NORTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28255
NATIONSBANC MONTGOMERY SECURITIES LLC
NATIONSBANK CORPORATE CENTER
100 NORTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28255
April 21, 1999
Mr. Bruce Bruckmann
CBF Holding, L.L.C.
c/o Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street
New York, New York 10022
Re: $225 million Senior Secured Bank Acquisition Credit Facilities
in respect of CORT Furniture Rental Corporation
Ladies and Gentlemen:
CBF Holding LLC ("Holdco") has advised us that it has entered into an Agreement
and Plan of Merger pursuant to which its wholly-owned subsidiary CBF Mergerco
Inc. (the "Initial Borrower") will be merged with and into Cort Business
Services Corporation (the "Acquired Company") as a result of which Holdco and
Citicorp Venture Capital, Ltd. (collectively, the "Sponsors") together with
certain other individuals and entities will acquire the Acquired Company for
approximately $453 million (including assumed indebtedness) (hereafter the
transactions contemplated in connection with the foregoing merger may be
referred to as the "Acquisition"). The Acquisition will be structured as a
cash-out merger transaction. You have advised us that $225 million in senior
bank financing will be required in order to effect the Acquisition, to pay the
costs and expenses related to the Acquisition and to provide for ongoing general
corporate purposes after completion of the Acquisition and that no external
financing other than the financing described herein and the $250 million
subordinated debt financing described in the term sheet attached hereto (the
"Subordinated Debt") will be required in connection with the Acquisition. The
Sponsors will provide evidence of equity capitalization in the Acquired Company
of at least $105 million prior to or concurrently with the Acquisition.
In connection with the foregoing, (i) NationsBank, N.A. ("NationsBank" or the
"Agent") is pleased to advise you of its commitment to act as Administrative
Agent for the Credit Facility and to provide the full principal amount of the
senior bank credit facilities (the "Credit
<PAGE> 2
Mr. Bruce Bruckmann
April 21, 1999
Page 2
Facilities") described in the Term Sheet, and (ii) NationsBanc Montgomery
Securities LLC ("NMS") is pleased to advise you that it is willing to act as
Sole Lead Arranger and Sole Book Manager for the Credit Facilities and to form a
syndicate of financial institutions (the "Lenders") reasonably acceptable to NMS
and you for the Credit Facilities. No additional agents will be appointed
without the prior approval of NationsBank and NMS. All capitalized terms used
and not otherwise defined herein shall have the meanings set forth in the Term
Sheet.
The commitments of NationsBank and NMS hereunder are subject to the satisfaction
of each of the following conditions precedent in a manner acceptable to
NationsBank and NMS in their sole discretion:
(a) each of the terms and conditions set forth herein;
(b) each of the terms and conditions set forth in the Term
Sheet;
(c) execution of the fee letter dated the date hereof among
the Sponsors, the Borrower, NationsBank and NMS (the "Fee
Letter") prior to or concurrently with the acceptance by the
Sponsors and the Borrower of this letter; and
(d) there not having occurred and being continuing since the
date hereof a material adverse change in the market for
syndicated bank credit facilities or a material disruption of,
or a material adverse change in, financial, banking or capital
market conditions, in each case as determined by NationsBank
and NMS in their sole discretion.
Furthermore, the commitments of NationsBank and NMS hereunder are based upon the
financial and other information regarding the Borrower, the Acquired Company and
their respective subsidiaries previously provided to NationsBank and NMS and are
subject to the condition, among others, that there shall not have occurred after
the date of such information, in the opinion of NationsBank and NMS, any
material adverse change in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of the
Borrower, the Acquired Company and their subsidiaries taken as a whole.
NMS intends to commence syndication efforts promptly following your acceptance
of this commitment, and you agree to use commercially reasonable efforts to
actively assist, and to cause the Acquired Company to assist, NMS in achieving a
syndication of the Credit Facilities that is satisfactory to it. Such assistance
by you and the Acquired Company shall include using commercially reasonable
efforts to (a) provide and cause your advisors to provide NationsBank and NMS
and the other Lenders upon request with all information reasonably deemed
necessary by NationsBank and NMS to complete syndication, including but not
limited to information and evaluations prepared by the Sponsors, the Borrower or
the Acquired Company or their advisors, or on its behalf, relating to the
Transactions, (b) assist NationsBank and NMS upon their reasonable request in
the preparation of an Information Memorandum to be used in connection with the
syndication of the Credit Facilities and (c) otherwise assist NationsBank and
NMS in their syndication efforts, including by making available mutually agreed
upon officers and advisors
<PAGE> 3
Mr. Bruce Bruckmann
April 21, 1999
Page 3
of the Parent, the Borrower and the Acquired Company and its subsidiaries from
time to time to attend and make presentations regarding the business and
prospects of the Acquired Company and its subsidiaries at a meeting or meetings
of prospective Lenders. You further agree to refrain from engaging in any
additional financings for the Transactions (except as described in this letter
and except for the Subordinated Debt financing) during such syndication process
unless otherwise agreed to by NationsBank and NMS.
It is understood and agreed that NationsBank and NMS, after consultation with
you, will manage and control all aspects of the syndication of the Credit
Facilities, including decisions as to the selection of proposed Lenders and any
titles offered to proposed Lenders, when commitments will be accepted and the
final allocations of the commitments among the Lenders. It is understood that no
Lender participating in the Credit Facilities will receive compensation from you
outside the terms contained herein and in the Term Sheet in order to obtain its
commitment. It is also understood and agreed that the amount and distribution of
the fees among the Lenders will be at the sole discretion of NationsBank and NMS
and that any syndication pursuant to written commitments prior to execution of
definitive documentation will reduce the commitment of NationsBank by the amount
of such commitments.
It shall be a condition to NationsBank's commitment hereunder and NMS's
agreement to provide the services contemplated hereby that (i) all information,
other than Projections (as defined below), which has been or is hereafter made
available to NationsBank and NMS or the Lenders by you or any of your
representatives in connection with the transactions contemplated hereby
("Information") is and will be complete and correct in all material respects and
does not and will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained therein not
misleading and (ii) all financial projections concerning the Borrower and the
Acquired Company that have been or are hereafter made available to NationsBank
and NMS or the Lenders by you or any of your representatives (the "Projections")
have been or will be prepared in good faith based upon reasonable assumptions.
You agree to furnish us with such Information and Projections as we may
reasonably request and to use commercially reasonable efforts to supplement the
Information and the Projections from time to time until the closing of the
Credit Facilities ("Closing") so that the condition in the preceding sentence is
correct on such date. In arranging and syndicating the Credit Facilities,
NationsBank and NMS will be using and relying on the Information and the
Projections without independent verification thereof.
By executing this letter agreement, you agree to reimburse NationsBank and NMS
from time to time on demand for all reasonable out-of-pocket fees and expenses
(including, but not limited to, the reasonable fees, disbursements and other
charges of Moore & Van Allen, PLLC, as counsel to NationsBank and the other
Lenders) incurred in connection with the Credit Facilities and the preparation
of the definitive documentation for the Credit Facilities and the other
transactions contemplated hereby.
The Sponsors also agree to indemnify and hold harmless NationsBank, NMS and
their affiliates and their respective directors, officers, employees and agents
(the "Indemnified Parties") from and
<PAGE> 4
Mr. Bruce Bruckmann
April 21, 1999
Page 4
against any and all losses, claims, damages and liabilities, joint or several,
related to or arising out of any matters contemplated by this letter, unless and
only to the extent that it shall be finally judicially determined that such
losses, claims, damages or liabilities resulted primarily from the gross
negligence or willful misconduct of NationsBank or NMS or such other Indemnified
Parties.
The provisions of the immediately preceding two paragraphs shall remain in full
force and effect regardless of whether definitive financing documentation shall
be executed and delivered and notwithstanding the termination of this letter
agreement or the commitment of NationsBank and NMS hereunder, provided, however,
that the Sponsors shall be deemed released of all obligations under the
immediately preceding two paragraphs upon the execution of definitive financing
documentation for the Credit Facilities.
As described herein and in the Term Sheet, NMS will act as Arranger and
Syndication Agent for the Credit Facilities. NationsBank reserves the right to
allocate, in whole or in part, to NMS certain fees payable to NationsBank in
such manner as NationsBank and NMS agree in their sole discretion. You
acknowledge and agree that NationsBank may share with any of its affiliates
(including specifically NMS) any information relating to the Credit Facilities,
the Borrower, the Acquired Company, the Sponsors and their subsidiaries and
affiliates, subject to the terms of the Confidentiality Agreement dated March
26, 1999.
This letter agreement may not be assigned by the Sponsors without the prior
written consent of NationsBank and NMS.
If you are in agreement with the foregoing, please execute and return the
enclosed copy of this letter agreement no later than 5:00 p.m., Monday, April
26, 1999. This letter agreement will become effective upon your delivery to us
of executed counterparts of this letter agreement and the Fee Letter and,
without limiting the more specific terms hereof and of the Term Sheet, you agree
upon acceptance of this commitment to pay the fees set forth in the Term Sheet
and in the Fee Letter. This commitment shall terminate if not so accepted by you
prior to that time. Following acceptance by you, this commitment will terminate
on Friday, October 29, 1999, unless the Credit Facilities are closed by such
time.
Except as required by applicable law, this letter and the Fee Letter and the
contents hereof and thereof shall not be disclosed by you to any third party
(other than the Acquired Company) without the prior consent of NationsBank and
NMS, other than to your attorneys, financial advisors and accountants, in each
case to the extent necessary in your reasonable judgment; provided, however, it
is understood and agreed that, you may disclose the terms of this letter to the
Acquired Company and its attorneys, agents and advisors in connection with the
Transaction.
This letter may be executed in counterparts which, taken together, shall
constitute an original. This letter, together with the Term Sheet and the Fee
Letter, embodies the entire agreement and understanding among NationsBank, NMS,
the Sponsors and the Borrower with respect to the specific matters set forth
herein and supersedes all prior agreements and understandings relating to the
subject matter hereof. No party has been authorized by NationsBank or NMS to
make any
<PAGE> 5
Mr. Bruce Bruckmann
April 21, 1999
Page 5
oral or written statements inconsistent with this letter. THIS LETTER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
Very truly yours,
NATIONSBANK, N.A.
By: /s/ Bradford Jones
------------------
Title: Attorney in Fact
NATIONSBANC MONTGOMERY
Securities LLC
By: /s/ Bradford Jones
------------------
Title: Managing Director
ACCEPTED AND AGREED TO:
CBF HOLDING LLC
By: _________________________________
Title:
Date:
CBF MERGERCO INC.
By:___________________________________
Title:
Date:
CITICORP VENTURE CAPITAL, LTD.
By: __________________________________
Title:
Date:
<PAGE> 6
ANNEX I
CORT FURNITURE RENTAL CORPORATION
SUMMARY OF TERMS & CONDITIONS
APRIL 21, 1999
BORROWER: CBF Mergerco Inc. ("CBFMI") a newly formed company will acquire (the
"Acquisition") the outstanding stock or assets of and be merged with
and into CORT Business Services Corporation, a Delaware corporation
(the "Acquired Company" or "CBSC"). CBFMI is or will be a subsidiary of
CBF Holding LLC, a holding company (the "Parent"), also newly formed
and with no business other than holding the stock of CBFMI and other
subsidiaries. CBSC is the parent holding company of CORT Furniture
Rental Corporation, a Delaware corporation and an operating company
("CFRC"). CBFMI will be the initial Borrower to the extent necessary to
accomplish the Acquisition and Merger, whereupon CFRC will assume the
indebtedness and obligations under the Credit Agreement, and become the
Borrower thereunder, from CBSC (being the survivor to CBFMI in the
Merger) which will thereupon be released from its obligations as the
Initial Borrower, but will become a Guarantor, under the Credit
Agreement. As used herein and in the Commitment Letter, the "Borrower"
shall refer to CBFMI prior to completion of the Acquisition, Merger and
assumption by CFRC of the loans and obligations under the Credit
Agreement, and thereafter, to CFRC.
GUARANTORS: The Credit Facilities shall be guaranteed by CBSC and all existing
and hereafter acquired direct and indirect domestic subsidiaries of
CBSC other than the Borrower (the "Guarantors") upon consummation of
the Acquisition. All guarantees shall be guarantees of payment and not
of collection.
AGENT: NationsBank, N.A. (the "Agent" or "NationsBank") will act as sole and
exclusive administrative and collateral agent. As such, NationsBank
will negotiate with the Borrower, act as the primary contact for the
Borrower and perform all other duties associated with the role of
exclusive administrative agent. No other agents or co-agents may be
appointed without the prior written consent of NationsBank and NMS.
SOLE LEAD ARRANGER &
SOLE BOOK MANAGER: NationsBanc Montgomery Securities LLC ("NMS").
LENDERS: A syndicate of financial institutions (including NationsBank) arranged
by NMS, which institutions shall be acceptable to the Borrower and the
Agent (collectively, the "Lenders").
CREDIT
<PAGE> 7
FACILITIES: An aggregate principal amount of up to $225 million will be
available at Closing under the conditions hereinafter set forth:
Revolving Credit Facility: $225 million revolving credit facility,
which will include a $10 million sublimit for the issuance of standby
and commercial letters of credit (each a "Letter of Credit") and a $10
million sublimit for the making of swingline loans (the "Swingline
Loans"). Letters of Credit will be issued by NationsBank (in such
capacity, the "Fronting Bank"), and each Lender will purchase an
irrevocable and unconditional participation in each Letter of Credit.
Swingline Loans will be made by NationsBank, and each Lender will
purchase an irrevocable and unconditional participation in each
Swingline Loan.
Expandability Provision. The Revolving Credit Facility will include an
expandability clause providing for additional commitments of up to $100
million available after the Borrower's election, subject to the
Borrower's obtaining the requested commitments from existing Lenders or
from other lenders which constitute eligible assignees (to be defined
objectively).
PURPOSE: The proceeds of the Credit Facilities shall be used: (i) to refinance
the outstanding principal balance of existing indebtedness of the
Acquired Company and its subsidiaries; (ii) to pay the cash portion of
the purchase price for the Acquired Company pursuant to the Purchase
Agreement (as defined below); (iii) to pay fees and expenses incurred
in connection with the Acquisition; and (iv) to provide for working
capital and general corporate purposes of the Borrower and its
subsidiaries, including acquisitions (subject to minimum Revolving
Credit Facility availability requirements to be determined).
INTEREST RATES: The Revolving Credit Facility shall bear interest as set forth
on Addendum I hereto.
MATURITY: The Revolving Credit Facility shall terminate and all amounts
outstanding thereunder shall be due and payable in full 6 years from
Closing.
AVAILABILITY: Loans under the Revolving Credit Facility ("Revolving Credit
Loans" or the "Loans") may be made, and Letters of Credit may be issued
subject to availability under the aggregate committed amount for the
Revolving Credit Facility.
SECURITY: Concurrently with the Acquisition, the Agent (on behalf of the
Lenders) shall receive a first priority perfected security interest in
(i) 100% of the issued and outstanding capital stock of the Borrower,
(ii) 100% of the issued and outstanding capital stock of each of the
direct and indirect domestic subsidiaries of the Borrower and (iii) 65%
of the issued and outstanding voting capital stock and 100% of the
issued and outstanding non-voting capital stock of each direct foreign
subsidiary of the Parent or any of its domestic subsidiaries (or such
greater or lesser percentage
2
<PAGE> 8
allowable which would not result in a material tax liability under U.S.
law), which capital stock shall not be subject to any other lien or
encumbrance. The Agent (on behalf of the Lenders) shall also receive a
first priority perfected security interest in all other present and
future personal property of the Borrower and its subsidiaries
(including, without limitation, accounts receivable, inventory,
machinery, equipment, contracts, trademarks, copyrights, patents,
license agreements, and general intangibles).
The foregoing security shall ratably secure the Credit Facilities and
any interest rate swap/foreign currency swap or similar agreements with
a Lender (or an affiliate of a Lender) under the Credit Facilities.
MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS:
The Credit Facilities will be prepaid by an amount equal to (a) 100% of
the net cash proceeds of all asset sales (excluding rental assets sold
in the normal course of business) by the Parent, the Borrower or any
subsidiary of the Borrower (including stock of subsidiaries), subject
to de minimus baskets and reinvestment provisions and such other
exceptions as shall be mutually agreed; (b) 100% of the net cash
proceeds from the issuance of any debt (excluding certain permitted
debt and such other exceptions as shall be mutually agreed) by the
Parent, the Borrower or any subsidiary; and (c) 50% of the net cash
proceeds from the issuance of equity by the CBSC, the Borrower or any
subsidiary. Prepayments shall serve to permanently reduce the
commitments under the Revolving Credit Facility.
OPTIONAL PREPAYMENTS AND COMMITMENT REDUCTIONS:
The Borrower may prepay the Credit Facilities in whole or in part at
any time without penalty, subject to reimbursement of the Lenders'
breakage and redeployment costs in the case of prepayment of LIBOR
borrowings prior to the end of the applicable interest period.
CONDITIONS PRECEDENT TO CLOSING:
Usual and customary for financing transactions of this type and for the
particular financing transaction contemplated hereby, including but not
limited to the following:
(a) The negotiation, execution and delivery of definitive
documentation with respect to the Credit Facilities
satisfactory to NMS, the Agent and the Lenders.
(b) A certified copy of the purchase agreement (including all
amendments, supplements, schedules and exhibits thereto)
regarding the Acquisition (the "Purchase Agreement") which
shall
3
<PAGE> 9
provide for an aggregate purchase price not in excess of $453
million (including assumed indebtedness).
(c) The corporate capital and ownership structure (including
articles of incorporation and by-laws), equityholder
agreements and management of CBSC, the Borrower and its
subsidiaries (after giving effect to the Acquisition),
including without limitation employment contracts, equity
ownership interests and key man life insurance with key
executives, shall be satisfactory to the Agent. Without
limiting the generality of the above, the Agent shall be
reasonably satisfied that (i) CBSC will have at least $140
million in equity capitalization, (ii) CFRC or any parent
company shall have issued and be in receipt of the net
proceeds of at least $250 million in subordinated debt (the
"Subordinated Debt") on terms and conditions consistent with
existing market standards, and (iii) the amount of the initial
advance under the Credit Facilities needed to accomplish the
Acquisition and Merger (including fees and expenses relating
thereto) will not exceed $86 million. Notwithstanding the
foregoing, if market conditions permit the syndication of the
Credit Facilities on terms and conditions, satisfactory to NMS
and NationsBank, at the discretion of the Agent, the initial
advance may be increased to an amount not to exceed $121
million and the equity contribution provided by the Sponsors
may be reduced accordingly.
(d) There shall not have occurred a material adverse change since
December 31, 1998 in the business, assets, operations,
condition (financial or otherwise) or prospects of the
Acquired Company and its subsidiaries or in the facts and
information regarding such entities as represented to date.
(e) The Agent shall have received a certificate of solvency from a
responsible officer of the Borrower and the Guarantors (after
giving effect to the Acquisition and the incurrence of
indebtedness related thereto) in form and substance reasonably
satisfactory to the Agent and the Required Lenders.
(f) The Agent shall have received (a) reasonably satisfactory
opinions of counsel to the Borrower and the Guarantors (which
shall cover, among other things, authority, legality,
validity, binding effect and enforceability of the documents
for the Credit Facilities) and such resolutions, certificates
and other documents as the Agent shall reasonably require and
(b) reasonably satisfactory evidence that the Agent (on behalf
of the Lenders) holds a perfected, first priority lien in all
collateral for the Credit Facilities, subject to no other
liens except for permitted liens to be determined.
(g) Receipt of all governmental, equityholder and third party
consents (including Hart-Scott-Rodino clearance and the
consent, if
4
<PAGE> 10
necessary, of any existing lenders, lessors and/or bondholders
of the Acquired Company to the extent that such indebtedness
is to remain in place after the Acquisition) and approvals
necessary or, in the reasonable opinion of the Agent,
desirable in connection with the Acquisition and the related
financings and other transactions contemplated hereby and
expiration of all applicable waiting periods without any
action being taken by any authority that could restrain,
prevent or impose any material adverse conditions on the
Acquired Company or any of its subsidiaries or such related
financings or other transactions contemplated hereby or that
could seek or threaten any of the foregoing, and no law or
regulation shall be applicable which in the reasonable
judgment of the Agent could have such effect.
(h) The absence of any action, suit, investigation or proceeding
pending or threatened in any court or before any arbitrator or
governmental authority that purports to affect the Acquired
Company or any of its subsidiaries or the financings and other
transaction contemplated hereby, or that could have a material
adverse effect on the Acquired Company or its subsidiaries or
such financings or other transaction contemplated hereby or on
the ability of the Borrower and the Guarantors to perform
their respective obligations under the documents to be
executed in connection with the Credit Facilities.
(i) CBSC and its subsidiaries, including the Borrower, shall be in
compliance with all existing financial obligations (after
giving effect to the Acquisition).
(j) Receipt and review, with results reasonably satisfactory to
the Agent and its counsel, of legal due diligence and
information regarding litigation, tax, accounting, labor,
insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property
ownership, and contingent liabilities of the Acquired Company
and its subsidiaries.
(k) The Borrower shall have paid to the Lenders and the Agent all
fees and expenses due and payable at Closing.
REPRESENTATIONS & WARRANTIES:
Usual and customary for financing transactions of this type
and for the particular financing transaction contemplated
hereby, including but not limited to the following: (i)
corporate status; (ii) corporate power and
authority/enforceability; (iii) no violation of law or
contracts or organizational documents; (iv) no material
litigation; (v) correctness of specified financial statements
and no material adverse change; (vi) no required governmental
or third party approvals; (vii) use of proceeds/compliance
with margin regulations; (viii) status under Investment
Company Act; (ix) ERISA; (x) environmental matters; (xi)
5
<PAGE> 11
perfected liens and security interests; (xii) payment of
taxes; and (xiii) Year 2000 preparedness.
COVENANTS: Usual and customary for financing transactions of this type
and for the particular financing transaction contemplated
hereby, including but not limited to the following: (i)
delivery of financial statements and other reports; (ii)
delivery of compliance certificates: (iii) delivery of notices
of default, material litigation and material governmental and
environmental proceedings; (iv) compliance with laws; (v)
payment of taxes; (vi) maintenance of insurance; (vii)
limitation on liens and negative pledges; (viii) limitations
on mergers, consolidations and sales of assets (subject, in
the case of asset sales and dispositions, to de minimum
baskets and reinvestment provisions); (ix) limitations on
incurrence of debt (subject to expansion of the Credit
Facilities as provided herein); (x) limitations on dividends
and stock redemptions and the redemption and/or prepayment of
other debt; (xi) limitations on investments and acquisitions
(subject, in the case of acquisitions, to the limitations
provided below); (xii) ERISA; (xiii) limitation on
transactions with affiliates; and (xiv) Year 2000 compliance
and in each case subject to agreed upon exceptions.
Financial covenants to be measured quarterly and to include
(without limitation):
(a) Maintenance on a rolling four quarter basis of a
Maximum Total Leverage Ratio (total funded
debt/EBITDA), of 4.75:1.0.
(b) Maintenance on a rolling four quarter basis of a
Maximum Senior Leverage Ratio (senior funded
debt/EBITDA), of 2.25:1.0.
(c) Maintenance on a rolling four quarter basis of a
Minimum Interest Coverage Ratio (EBITDA/interest
expense), of 2.0:1.0.
(d) Maintenance as of the end of each fiscal quarter of a
Maximum Loan to Value Ratio of 1.0:1.0. The
denominator will consist of an amount equal to the
sum of (i) 100% of the net book value of accounts
receivable, (ii) 100% of the net book value of plant,
property and equipment and (iii) 100% of the net book
value of rental furniture.
The financial covenants will give pro forma effect for
acquisitions and dispositions, where appropriate.
CBSC shall have agreed that it will not engage in any
business, activity or operation other than owning and holding
the capital stock of the Borrower, guaranteeing the Credit
Facility and pledging its assets (including the capital stock
of the Borrower) as security therefor, and activities directly
related thereto. The Parent shall not be permitted to merge
with or into any other person other than the Borrower.
PERMITTED
6
<PAGE> 12
ACQUISITIONS: Acquisitions will be permitted provided that (i) the
acquisition is in the furniture equipment rental or related or
ancillary business, and (ii) no default or event of default
would exist after giving effect to the acquisition on a pro
forma basis.
EVENTS OF DEFAULT:Usual and customary for financing transactions of this type
and for the particular financing transaction contemplated
hereby, including but not limited to the following and
including grace and cure periods where appropriate: (i)
nonpayment of principal, interest, fees or other amounts; (ii)
violation of covenants; (iii) inaccuracy of representations
and warranties; (iv) cross-default to other material
agreements and indebtedness; (v) bankruptcy or insolvency;
(vi) material judgments; (vii) ERISA; (viii) actual or
asserted invalidity of any loan documents or security
interests; or (ix) Change in Control (to be agreed upon in a
mutually agreeable manner).
ASSIGNMENTS/
PARTICIPATIONS: Each Lender will be permitted to make assignments in minimum
principal amounts of $5 million to other financial
institutions approved by the Borrower and the Agent, which
approval shall not be unreasonably withheld. Lenders will be
permitted to sell participations with voting rights limited to
significant matters such as changes in amount, rate, and
maturity date. An assignment fee of $3,500 is payable by the
Lender to the Agent upon any such assignment occurring
(including, but not limited to an assignment by a Lender to
another Lender).
WAIVERS &
AMENDMENTS: Amendments and waivers of the provisions of the loan agreement
and other definitive credit documentation will require the
approval of Lenders holding loans and commitments representing
more than 50% of the aggregate amount of loans and commitments
under the Credit Facilities, except that the consent of all
the Lenders affected thereby shall be required with respect to
(i) increases in commitment amounts (other than expansion of
the Credit Facilities as provided herein), (ii) reductions of
principal, interest, or fees, (iii) extensions of final
maturities, (iv) releases of all or substantially all
collateral and (v) releases of all or substantially all
guarantors.
INDEMNIFICATION: The Borrower shall indemnify the Lenders from and against all
losses, liabilities, claims, damages or expenses relating to
their loans, the Borrower's use of loan proceeds or the
commitments, including but not limited to reasonable
attorneys' fees and settlement costs. This indemnification
shall survive and continue for the benefit of the Lenders at
all times after the Borrower's acceptance of the Lenders'
commitment for the Credit Facilities, notwithstanding any
failure of the Credit Facilities to close.
GOVERNING LAW: New York.
7
<PAGE> 13
FEES/EXPENSES: As outlined in ADDENDUM I.
OTHER: This term sheet is intended as an outline only and does not
purport to summarize all the conditions, covenants,
representations, warranties and other provisions which would
be contained in definitive legal documentation for the Credit
Facilities contemplated hereby. Each of the Borrower and the
Guarantors shall waive its right to a trial by jury.
8
<PAGE> 14
ADDENDUM I
FEES AND EXPENSES
COMMITMENT FEE: A 50 basis points per annum (calculated on the basis of actual
number of days elapsed in a year of 360 days) on the unused
portion of the Credit Facilities shall commence to accrue upon
acceptance by the Borrower of the commitment letter to which
this term sheet is attached and shall be paid upon execution
of a definitive credit agreement and thereafter quarterly in
arrears.
INTEREST RATES: The Revolving Credit Facility shall bear interest at a rate
equal to LIBOR plus 200 bps (calculated on the basis of actual
number of days elapsed in a year of 360 days) or the Alternate
Base Rate (defined as the higher of (i) the NationsBank prime
rate and (ii) the Federal Funds rate plus 1/2%) plus 75 bps
(calculated on the basis of actual number of days elapsed in a
year of 365/366 days); provided, that if during the 180 day
period following the Closing, any breakage costs, charges or
fees are incurred with respect to LIBOR loans on account of
the syndication of the Credit Facilities, the Borrower shall
immediately reimburse the Agent for any such costs, charges or
fees. Such right of reimbursement to be in addition to and not
in limitation of customary cost and yield protection.
The Borrower may select interest periods of 1, 2, 3 or 6
months for LIBOR loans, subject to availability.
A penalty rate shall apply on all amounts outstanding under
the Credit Facilities (including Letters of Credit) upon the
occurrence of an Event of Default at a rate per annum of 2%
above the applicable interest rate or letter of credit fee
(without duplication).
PERFORMANCE
PRICING: The LIBOR and Alternate Base Rate margins (and the letter of
credit fees) for the Revolving Credit Facility will be subject
to performance pricing step-downs commencing six (6) months
from Closing, based upon the Borrower's Total Leverage Ratio,
as outlined in the table below:
<TABLE>
<CAPTION>
Applicable
Total Funded Debt/ Applicable Base Rate
Level EBITDA LIBOR Margin Margin
<S> <C> <C> <C>
I Lesser Than 2.50x 1.25% 0.00%
II Greater Than 2.50x but Lesser Than 3.00x 1.50% 0.00%
III Greater Than 3.00x but Lesser Than 3.50x 1.75% 0.50%
IV Greater Than 3.50x but Lesser Than 4.00x 2.00% 0.75%
V Greater Than 4.00x 2.25% 1.00%
</TABLE>
COST AND YIELD
<PAGE> 15
PROTECTION: The usual for transactions and facilities of this type,
including, without limitation, in respect of prepayments,
changes in capital adequacy and capital requirements or their
interpretation, illegality, unavailability, reserves without
proration or offset.
LETTER OF
CREDIT FEES: The Borrower shall pay a per annum letter of credit fee
(calculated on the basis of actual number of days elapsed in a
year of 360 days) on the outstanding amount of all Letters of
Credit. The applicable letter of credit fee shall be (i) for
standby letters of credit, the percentage over LIBOR (the
"LIBOR Margin") applicable from time to time for
LIBOR based loans outstanding under the Revolving Credit
Facility and (ii) for trade letters of credit, 50% of the
LIBOR Margin. The letter of credit fee shall be due quarterly
in arrears and shared proportionately by the Lenders.
In addition, the Borrower shall pay the Agent for its own
account a per annum facing fee of 1/8% (calculated on the
basis of actual number of days elapsed in a year of 360 days)
on the outstanding amount of all Letters of Credit. The letter
of credit facing fee shall be due quarterly in arrears.
EXPENSES: Borrower will pay all reasonable costs and expenses associated
with the preparation, due diligence, administration,
syndication and enforcement of all documents executed in
connection with the Credit Facilities, including without
limitation, the reasonable legal fees of the Agent's counsel
regardless of whether or not the Credit Facilities are closed.
<PAGE> 1
EXHIBIT 99.4
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
- -------------------------------------------------------
MICHAEL STERNBERG, :
:
PLAINTIFF, : C.A. NO. 17087NC
:
v. :
:
PAUL N. ARNOLD, CHARLES M. EGAN, : CLASS ACTION COMPLAINT
:
MICHAEL A. DELANEY, JAMES A. URRY, :
GREGORY B. MAFFEI, KEITH E. ALESSI, :
BRUCE C. BRUCKMANN, CITICORP :
VENTURE CAPITAL, LTD. :
AND CORT BUSINESS SERVICES CORPORATION, :
:
:
DEFENDANTS. :
:
- --------------------------------------------------------
Plaintiff, by his attorneys, alleges upon personal knowledge
as to his own acts and upon information and belief as to all other matters, as
follows:
NATURE OF THE ACTION
1. Plaintiff brings this action individually and as a class action on
behalf of all persons, other than defendants, who own the securities of Cort
Business Services Corporation ("Cort" or the "Company") and who are similarly
situated (the "Class"), for injunctive and other appropriate relief in
connection with a proposed transaction whereby a management-led investor group
that includes defendant Citicorp Venture Capital Ltd. ("CVC") -- the Company's
44% shareholder -- seeks to buy all of the outstanding publicly-held shares of
Cort in a transaction valued at $453 million. Alternatively, in the event that
the proposed transaction is implemented, plaintiff seeks to recover damages
caused by the breach of fiduciary duties owed by defendants to Cort's public
shareholders.
<PAGE> 2
THE PARTIES
2. Plaintiff is and, at all relevant times, has been the owner of
shares of Cort common stock.
3. Cort is a corporation organized under the laws of Delaware with his
principal executive offices located at 4401 Fair Lakes Ct., Fairfax, Virginia.
Cort, through his subsidiaries, is the leading provider of rental furniture,
accessories and related services.
4. Defendant Paul N. Arnold ("Arnold") is Chief Executive Officer and a
Director of Cort.
5. Defendant Charles M. Egan ("Egan") is the Chairman of the Board of
Directors of Cort.
6. Defendant Michael A. Delaney ("Delaney") is a Director of Cort.
Delaney is also the Managing Director of defendant CVC.
7. Defendant James A. Urry ("Urry") is a Director of Cort. Urry is also
a Vice President of defendant CVC.
8. Defendant Bruce C. Bruckmann ("Bruckmann") is a Director of Cort.
Bruckmann is also the Managing Director of Bruckmann, Rosser, Sherrill & Co.,
Inc., which is participating in the management-led buyout group. Until 1994,
Bruckmann was a Vice President of defendant CVC.
9. Keith E. Alessi and Gregory B. Maffei are directors of Cort.
10. CVC, as controlling shareholder, and the Individual Defendants owe
fiduciary duties of loyalty and good faith to plaintiff and the other members of
the Class.
-2-
<PAGE> 3
CLASS ACTION ALLEGATIONS
11. Plaintiff brings this action on his own behalf and as a class
action, on behalf of all stockholders of the Company (except defendants herein
and any person, firm, trust, corporation, or other entity related to or
affiliated with any of the defendants, or to the Company's principal
stockholders), who are threatened with injury arising from defendants' actions
as is described more fully below.
12. This action is properly maintainable as a class action.
13. The Class is so numerous that joinder of all members is
impracticable. The Company has approximately 13 million shares of common stock
outstanding owned by hundreds of record and beneficial stockholders.
14. There are questions of law and fact common to the Class including,
inter alia, whether:
(a) defendants have breached and will continue to breach their
fiduciary and other common law duties owed by them to plaintiff and the members
of the Class; and
(b) plaintiff and the other members of the Class would be
irreparably damaged by the wrongs complained of herein.
15. Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. Plaintiff's claims
are typical of the claims of the other members of the Class and plaintiff has
the same interests as the other members of the Class. Accordingly, plaintiff is
an adequate representative of the Class.
16. The prosecution of separate actions by individual members of the
Class would create the risk of inconsistent or varying adjudications with
respect to individual members
-3-
<PAGE> 4
of the Class which would establish incompatible standards of conduct for
defendants, or adjudications with respect to individual members of the Class
which would as a practical matter be dispositive of the interests of the other
members not parties to the adjudications or substantially impair or impede their
ability to protect their interests.
17. The defendants have acted, or refused to act, on grounds generally
applicable to, and causing injury to, the Class and, therefore, preliminary and
final injunctive relief on behalf of the Class as a whole is appropriate.
SUBSTANTIVE ALLEGATIONS
18. On March 26, 1999, Cort announced it had entered into a definitive
agreement to be acquired by an investor group that included members of Cort
management; Bruckmann, Rosser, Sherrill & Co., Inc.; and CVC.
19. Under the terms of the agreement, the investor group would pay
Cort's public shareholders $24.00 in cash and $2.50 in liquidation value of new
series of preferred stock for each Cort share. The transaction is valued at
approximately $453 million in the aggregate. CVC will retain an ownership
interest in Cort and the financing for the proposed transaction would be
provided, in part, by CVC.
20. The proposed transaction was announced on the heels of Cort's
reporting record revenue and operating earnings for the fiscal year ended
December 31, 1998. Total revenue at the Company grew by 11% over the prior year.
As recently as February 18, 1999, Arnold concluded: "We are pleased with our
performance as we continue to execute our long term strategies and position the
Company for further growth and operating efficiencies. . . . We are optimistic
that we have laid the appropriate foundations for the long term benefit of the
Company and his shareholders."
-4-
<PAGE> 5
21. The investor group now seeks to take advantage of Cort's future
growth and capture such value for hiself to the detriment of the Company's
public shareholders at a price which is wholly inadequate.
22. Because of the investor group includes members of management and
the participation of the Company's largest shareholder, the investor group was
in a position to, and in fact did, dictate the terms of the proposed
transaction.
23. The proposed transaction is grossly unfair, inadequate and provides
value to Cort stockholders substantially below the fair or inherent value of the
Company. Taking into account Cort's asset value, liquidation value, his expected
growth, the strength of his business, revenues, cash flow, and earnings power,
the intrinsic value of the equity of Cort is materially greater than the
consideration contemplated by the proposed transaction price.
24. The proposed transaction is wrongful, unfair, and harmful to Cort's
public stockholders, and will deny them their right to share proportionately in
the true value of Cort's valuable assets, profitable business, and future growth
in profits and earnings, while usurping the same for the benefit of the investor
group.
25. As a result of defendants' action, plaintiff and the Class have
been and will be damaged by the breaches of fiduciary duty complained of herein
because plaintiff and the Class will not receive their fair proportionate share
of Cort's assets and businesses.
26. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the Class, and will succeed in
their plan to exclude plaintiff and the Class from receiving fair value for
Cort's valuable assets and businesses, to the irreparable harm of the Class.
-5-
<PAGE> 6
27. Plaintiff and the Class have no adequate remedy of law.
WHEREFORE, plaintiff prays for judgment and relief as follows:
(a) declaring that this lawsuit is properly maintainable as a
class action and certifying plaintiff as a representative of the Class;
(b) preliminarily and permanently enjoining defendants and
their counsel, agents, employees, and all persons acting under, in concert with,
or for them, from proceeding with or implementing the transaction complained of;
(c) in the event the proposed transaction is consummated,
rescinding it and setting it aside;
(d) awarding rescissory and/or compensatory damages against
defendants, jointly and severally, in an amount to be determined at trial,
together with prejudgment interest at the maximum rate allowable by law;
(e) awarding plaintiff his costs and disbursements, including
reasonable allowances for plaintiff's counsel and experts' fees and expenses;
and
-6-
<PAGE> 7
(f) granting such other and further relief as may be just and
proper.
ROSENTHAL, MONHAIT GROSS &
GODDESS, P.A.
By: /s/
----------------------------
Suite 1401, Mellon Bank Center
919 Market Street
P.O. Box 1070
Wilmington, Delaware 19899
(302) 656-4433
Attorneys for Plaintiff
Of Counsel:
ABBEY GARDY & SQUITIERI, LLP
212 East 39th Street
New York, NY 10016
(212) 889-3700
-7-
<PAGE> 1
EXHIBIT 99.5
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------------
HARBOR FINANCE PARTNERS, :
:
PLAINTIFF, :
:
v. : CIVIL ACTION COMPLAINT
: 17065
:
:
PAUL N. ARNOLD, CHARLES M. EGAN, :
MICHAEL A. DELANEY, JAMES A. URRY, :
GREGORY B. MAFFEI, KEITH E. ALESSI, :
BRUCE C. BRUCKMANN, CITICORP :
VENTURE CAPITAL, LTD. :
AND CORT BUSINESS SERVICES CORPORATION, :
:
:
DEFENDANTS. :
:
:
- ---------------------------------------------------
Plaintiff, by its attorneys, alleges upon personal knowledge
as to its own acts and upon information and belief as to all other matters, as
follows:
NATURE OF THE ACTION
1. Plaintiff brings this action individually and as a class action on
behalf of all persons, other than defendants, who own the securities of Cort
Business Services Corporation ("Cort" or the "Company") and who are similarly
situated (the "Class"), for injunctive and other appropriate relief in
connection with a proposed transaction whereby a management-led investor group
that includes defendant Citicorp Venture Capital Ltd. ("CVC") - the Company's
44%
<PAGE> 2
shareholder - seeks to buy all of the outstanding publicly-held shares of Cort
in a transaction valued at $453 million. Alternatively, in the event that the
proposed transaction is implemented, plaintiff seeks to recover damages caused
by the breach of fiduciary duties owed by defendants to Cort's public
shareholders.
THE PARTIES
2. Plaintiff is and, at all relevant times, has been the owner of
shares of Cort common stock.
3. Cort is a corporation organized under the laws of Delaware with its
principal executive offices located at 4401 Fair Lakes Ct., Fairfax, Virginia.
Cort, through its subsidiaries, is the leading provider of rental furniture,
accessories and related services.
4. Defendant Paul N. Arnold ("Arnold") is Chief Executive Officer and a
Director of Cort.
5. Defendant Charles M. Egan ("Egan") is the Chairman of the Board of
Directors of Cort.
6. Defendant Michael A. Delaney ("Delaney") is a Director of Cort.
Delaney is also the Managing Director of defendant CVC.
7. Defendant James A. Urry ("Urry") is a Director of Cort. Urry is also
a Vice President of defendant CVC.
8. Defendant Bruce C. Bruckmann ("Bruckmann") is a Director of Cort.
Bruckmann is also the Managing Director of Bruckmann, Rosser, Sherrill & Co.,
Inc., which is
-2-
<PAGE> 3
participating in the management-led buyout group. Until 1994, Bruckmann was a
Vice President of defendant CVC.
9. Keith E. Alessi and Gregory B. Maffei are directors of Cort.
10. CVC, as controlling shareholder, and the Individual Defendants owe
fiduciary duties of loyalty and good faith to plaintiff and the other members of
the Class.
CLASS ACTION ALLEGATIONS
11. Plaintiff brings this action on its own behalf and as a class
action, on behalf of all stockholders of the Company (except defendants herein
and any person, firm, trust, corporation, or other entity related to or
affiliated with any of the defendants, or to the Company's principal
stockholders), who are threatened with injury arising from defendants' actions
as is described more fully below.
12. This action is properly maintainable as a class action.
13. The Class is so numerous that joinder of all members is
impracticable. The Company has approximately 13 million shares of common stock
outstanding owned by hundreds of record and beneficial stockholders.
14. There are questions of law and fact common to the Class including,
inter alia, whether:
(a) defendants have breached and will continue to breach their
fiduciary and other common law duties owed by them to plaintiff and the members
of the Class; and
(b) plaintiff and the other members of the Class would be
irreparably damaged by the wrongs complained of herein.
-3-
<PAGE> 4
15. Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. Plaintiff's claims
are typical of the claims of the other members of the Class and plaintiff has
the same interests as the other members of the Class. Accordingly, plaintiff is
an adequate representative of the Class.
16. The prosecution of separate actions by individual members of the
Class would create the risk of inconsistent or varying adjudications with
respect to individual members of the Class which would establish incompatible
standards of conduct for defendants, or adjudications with respect to individual
members of the Class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or substantially
impair or impede their ability to protect their interests.
17. The defendants have acted, or refused to act, on grounds generally
applicable to, and causing injury to, the Class and, therefore, preliminary and
final injunctive relief on behalf of the Class as a whole is appropriate.
SUBSTANTIVE ALLEGATIONS
18. On March 26, 1999, Cort announced it had entered into a definitive
agreement to be acquired by an investor group that included members of Cort
management; Bruckmann, Rosser, Sherrill & Co., Inc.; and CVC.
19. Under the terms of the agreement, the investor group would pay
Cort's public shareholders $24.00 in cash and $2.50 in liquidation value of a
new series of preferred stock for each Cort share. The transaction is valued at
approximately $453 million in the
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<PAGE> 5
aggregate. CVC will retain an ownership interest in Cort and the financing for
the proposed transaction would be provided, in part, by CVC.
20. The proposed transaction was announced on the heels of Cort's
reporting record revenue and operating earnings for the fiscal year ended
December 31, 1998. Total revenue at the Company grew by 11% over the prior year.
As recently as February 18, 1999, Arnold concluded: "We are pleased with our
performance as we continue to execute our long term strategies and position the
Company for further growth and operating efficiencies. . . . We are optimistic
that we have laid the appropriate foundations for the long term benefit of the
Company and its shareholders."
21. The investor group now seeks to take advantage of Cort's future
growth and capture such value for itself to the detriment of the Company's
public shareholders at a price which is wholly inadequate.
22. Because of the investor group includes members of management and
the participation of the Company's largest shareholder, the investor group was
in a position to, and in fact did, dictate the terms of the proposed
transaction.
23. The proposed transaction is grossly unfair, inadequate and provides
value to Cort stockholders substantially below the fair or inherent value of the
Company. Taking into account Cort's asset value, liquidation value, its expected
growth, the strength of its business, revenues, cash flow, and earnings power,
the intrinsic value of the equity of Cort is materially greater than the
consideration contemplated by the proposed transaction price.
24. The proposed transaction is wrongful, unfair, and harmful to Cort's
public stockholders, and will deny them their right to share proportionately in
the true value of Cort's
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<PAGE> 6
valuable assets, profitable business, and future growth in profits and earnings,
while usurping the same for the benefit of the investor group.
25. As a result of defendants' action, plaintiff and the Class have
been and will be damaged by the breaches of fiduciary duty complained of herein
because plaintiff and the Class will not receive their fair proportionate share
of Cort's assets and businesses.
26. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the Class, and will succeed in
their plan to exclude plaintiff and the Class from receiving fair value for
Cort's valuable assets and businesses, to the irreparable harm of the Class.
27. Plaintiff and the Class have no adequate remedy of law.
WHEREFORE, plaintiff prays for judgment and relief as follow:
(a) declaring that this lawsuit is properly maintainable as a
class action and certifying plaintiff as a representative of the Class;
(b) preliminarily and permanently enjoining defendants and
their counsel, agents, employees, and all persons acting under, in concert with,
or for them, from proceeding with or implementing the transaction complained of;
(c) in the event the proposed transaction is consummated,
rescinding it and setting it aside;
(d) awarding rescissory and/or compensatory damages against
defendants, jointly and severally, in an amount to be determined at trial,
together with prejudgment interest at the maximum rate allowable by law;
(e) awarding plaintiff its costs and disbursements, including
reasonable allowances for plaintiff's counsel and experts' fees and expenses;
and
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<PAGE> 7
(f) granting such other and further relief as may be just and
proper.
ROSENTHAL MONHAIT GROSS &
GODDESS, P.A.
By: /s/
--------------------------------
Suite 1401, Mellon Bank Center
918 Market Street
P.O. Box 1070
Wilmington, Delaware 19899
(302) 656-4433
Attorneys for Plaintiff
Of Counsel:
WECHSLER HARWOOD
HALEBIAN & FEFFER LLP
488 Madison Avenue
New York, New York 10022
(212) 935-7400
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<PAGE> 1
EXHIBIT 99.6
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- -----------------------------------------------------
HAROLD SHAPIRO, :
:
PLAINTIFF, :
:
- against - : CIVIL ACTION NO. 17066NC
:
KEITH E. ALESSI, PAUL N. ARNOLD, :
BRUCE C. BRUCKMANN, MICHAEL A. :
DELANEY, CHARLES M. EGAN, GREGORY :
B. MAFFEI, JAMES A. URRY, CORT :
BUSINESS SYSTEMS, BRUCKMANN, :
ROSSER SHERRILL & CO. AND CITICORP :
VENTURE CAPITAL LTD., :
:
:
:
:
DEFENDANTS. :
:
:
- -----------------------------------------------------
CLASS ACTION COMPLAINT
Plaintiff, by his attorneys, Rosenthal, Monhait, Gross & Goddess, P.A.,
for his complaint against defendants, alleges upon information and belief,
except for paragraph 2 hereof, which is alleged upon knowledge, as follows:
1. Plaintiff brings this action pursuant to Rule 23 of the Rules of the
Court of Chancery on his behalf and as a class action on behalf of all persons,
other than defendants and those in privity with them, who own the common stock
of Cort Business Services Corporation ("Cort" or the "Company").
2. Plaintiff has been the owner of the common stock of the Company
since prior to the transaction herein complained of and continuously to date.
3. Cort is a corporation duly organized and existing under the laws of
the State of Delaware. The Company, through a wholly owned subsidiary, is a
leading provider of
<PAGE> 2
rental furniture, accessories and related services in the "rent-to-rent" segment
of the furniture industry. Cort operates 119 rental showrooms, 83 furniture
clearance centers and 75 warehouses in 32 states and the District of Columbia.
The Company maintains its principal offices at 4401 Fair Lakes Court, Fairfax,
Virginia.
4. Defendant Bruckmann, Rosser, Sherrill & Co., ("BRS") based in New
York, is a private investment firm that focuses on investing in quality
business.
5. Defendant Paul N. Arnold is Chief Executive Officer and a Director
of the Company.
6. Defendant Charles M. Egan is Chairman of the Company and a Director
of the Company.
7. Defendant Bruce C. Bruckmann is Managing Director of BRS, and a
Director of the Company.
8. Defendant Michael A. Delaney is Managing Director of Citicorp
Venture Capital Ltd. ("CVC"), and a Director of the Company.
9. Defendants Keith E. Alessi, Gregory B. Meffei, and James A. Urry are
Directors of the Company. Defendant CVC currently owns approximately 44% of the
Company's outstanding common stock.
10. The individual defendants, by reason of their corporate
directorships and executive positions, stand in a fiduciary position relative to
the Company's public shareholders, whose fiduciary duties, at all times relevant
herein, required them to exercise their best judgment, and to act in a prudent
manner, and in the best interest of the Company's shareholders. Said defendants
owed the public shareholders of Cort the highest duty of good faith, fair
dealing, due care, loyalty, and full, candid and adequate disclosure.
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<PAGE> 3
CLASS ACTION ALLEGATIONS
11. Plaintiff brings this action on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of
all security holders of the Company (except the defendants herein and any
person, firm, trust, corporation, or other entity related to or affiliated with
any of the defendants) and their successors in interest, who are or will be
threatened with injury arising from defendants' actions as more fully described
herein.
12. This action is properly maintainable as a class action.
13. The class is so numerous that joinder of all members is
impracticable. As of March 17, 1998, there were approximately 13,000,000 shares
of Cort common stock outstanding, owed by shareholders located throughout the
country.
14. There are questions of law and fact which are common to the class
including, inter alia, the following: (a) whether defendants have breached their
fiduciary and other common law duties owed by them to plaintiff and the members
of the class; (b) whether the proposed acquisition, hereinafter described,
constitutes a breach of defendants' duty of fair dealing; (c) whether defendants
have obtained the best transaction available; and (d) whether the class is
entitled to injunctive relief or damages as a result of the wrongful conduct
committed by defendants.
15. Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. The claims of the
plaintiff are typical of the claims of other members of the class and plaintiff
has the same interests as the other members of the class. Plaintiff will fairly
and adequately represent the class.
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<PAGE> 4
16. Defendants have acted in a manner which affects plaintiff and all
members of the class, thereby making appropriate injunctive relief and/or
corresponding declaratory relief with respect to the class as a whole.
17. The prosecution of separate actions by individual members of the
Class would create a risk of inconsistent or varying adjudications with respect
to individual members of the Class, which would establish incompatible standards
of conduct for defendants, or adjudications with respect to individual members
of the Class which would, as a practical matter, be dispositive of the interests
of other members or substantially impair or impede their ability to protect
their interests.
SUBSTANTIVE ALLEGATIONS
18. On March 26, 1999, the Company announced that it had signed a
definitive merger agreement with an investor group that includes BRS (the "BRS
Group") whereby the BRS Group will purchase all of the Company's outstanding
common stock held by the public shareholders of Cort for $24 per share in cash
and $2.50 per share in liquidation value of a new series of preferred stock. CVC
which owns 44% of the Company's outstanding stock, will retain a portion of its
investment and thereby provide equity financing to the resulting corporation.
19. By entering into the agreement with the BRS Group, the Cort Board
has initiated a process to sell the Company which imposes heightened fiduciary
responsibilities and requires enhanced scrutiny by the Court. However, the terms
of the proposed transaction were not the result of an auction process or active
market check; they were arrived at without a full and thorough investigation by
the Individual Defendants; and they are intrinsically unfair and inadequate from
the standpoint of the Cort shareholders.
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<PAGE> 5
20. The Individual Defendants failed to make an informed decision, as
no market check of the Company's value was obtained. In agreeing to the merger,
the Individual Defendants failed to properly inform themselves of Cort's highest
transactional value.
21. The Individual Defendants have violated their fiduciary duties owed
to the public shareholders of Cort. The Individual Defendants' agreement to the
terms of the transaction, its timing, and the failure to auction the Company and
invite other bidders, and defendants' failure to conduct a market check
demonstrate a clear absence of the exercise of due care and a breach of their
duties of loyalty to Cort's public shareholders.
22. The Individual Defendants' fiduciary obligations under these
circumstances require them to:
(a) Undertake an appropriate evaluation of Cort's net worth as
a merger/acquisition candidate; and
(b) Engage in a meaningful auction with third parties in an
attempt to obtain the best value for Cort's public shareholders.
23. The Individual Defendants have breached their fiduciary duties by
reason of the acts and transactions complained of herein, including their
decision to be acquired by the BRS Group without making the requisite effort to
obtain the best offer possible.
24. Plaintiff and other members of the Class have been and will be
damaged in that they have not and will not receive their fair proportion of the
value of Cort's assets and business, and will be prevented from obtaining fair
and adequate consideration for their shares of Cort common stock.
25. The consideration to be paid to class members in the proposed
merger is unfair and inadequate because, among other things:
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<PAGE> 6
(a) Cort common stock has sold for as much as $48 per share in
the past twelve months;
(b) The intrinsic value of Cort's common stock is materially
in excess of the amount offered for those securities in the merger giving due
consideration to the anticipated operating results, net asset value, cash flow,
and profitability of the Company;
(c) The merger price is not the result of an appropriate
consideration of the value of Cort because the Cort Board approved the proposed
merger without undertaking steps to accurately ascertain Cort's value through
open bidding or at least a "market check mechanisim"; and
(d) By entering into the agreement with the BRS Group, the
Individual Defendants have allowed the price of Cort stock to be capped, thereby
depriving plaintiff and the Class of the opportunity to realize any increase in
the value of Cort stock.
26. By reason of the foregoing, each member of the Class will suffer
irreparable injury and damages absent injunctive relief by this Court.
27. BRS and CVC knowingly aided and abetted the breaches of fiduciary
by the individual defendants. The proposed acquisition could not take place
without the knowing participation of BRS and CVC.
28. Plaintiff and other members of the Class have no adequate remedy at
law.
WHEREFORE, plaintiff and members of the Class demand judgment against
defendants as follows:
a. Declaring that this action is properly maintainable as a
class action and certifying plaintiff as the representative of
the Class;
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<PAGE> 7
b. Preliminarily and permanently enjoining defendants and
their counsel, agents, employees and all persons acting under,
in concert with, or for them, from proceeding with,
consummating, or closing the proposed transaction;
c. In the event that the proposed transaction is consummated,
rescinding it and setting it aside, or awarding rescissory
damages to the Class.
d. Awarding compensatory damages against defendants,
individually and severally, in an amount to be determined at
trial, together with pre-judgment and post-judgment interest
at the maximum rate allowable by law, arising from the
proposed transaction;
e. Awarding plaintiff its costs and disbursements and
reasonable allowances for fees of plaintiff's counsel and
experts and reimbursement of expenses; and
f. Granting plaintiff and the Class such other and further
relief as the Court may deem just and proper.
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<PAGE> 8
ROSENTHAL, MONHAIT, GROSS &
GODDESS, P.A.
By: /s/ Norman M. Monhait
-------------------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
BERNSTEIN LIEBHARD & LIFSHITZ
10 E. 40th Street
New York, NY 10016
(212) 779-1414
March 26, 1999
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