Exhibit 1.1
CINCINNATI BELL
INC.
8.25% SENIOR NOTES DUE
2017
UNDERWRITING
AGREEMENT
September 30,
2009
September 30, 2009
To the Managers
named in Schedule I hereto
for the
Underwriters named in Schedule II hereto
Ladies and
Gentlemen:
Cincinnati Bell
Inc., an Ohio corporation (the “ Company ”),
proposes to issue and sell to the several underwriters named in
Schedule II hereto (the “ Underwriters ”),
for whom you are acting as managers (the “ Managers
”), the principal amount of its debt securities identified in
Schedule I hereto (the “ Notes ”), to be
issued under the indenture specified in Schedule I hereto (the
“ Indenture ”) between the Company, the
Guarantors and the Trustee identified in such Schedule (the “
Trustee ”). The Notes will be fully and
unconditionally guaranteed (the “ Guarantees ”)
on a senior unsecured basis by the Company’s subsidiaries
listed on Schedule III attached hereto (the “
Guarantors ”). The Notes and the Guarantees
are collectively referred to herein as the “
Securities .” The Company and the
Guarantors to be party to the Indenture on the Closing Date (as
defined below) are referred to collectively as the “
Issuers .”
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus, (the file number of which is set forth in
Schedule I hereto) on Form S-3, relating to securities
(the “ Shelf Securities ”), including the
Securities, to be issued from time to time by the
Company. The registration statement as amended to the
date of this Agreement, including the information (if any) deemed
to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 430B under the
Securities Act of 1933, as amended (the “ Securities
Act ”), is hereinafter referred to as the “
Registration Statement, ” and the related prospectus
covering the Shelf Securities dated September 30, 2009 in the
form first used to confirm sales of the Securities (or in the form
first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities
Act) is hereinafter referred to as the “ Basic
Prospectus .” The Basic Prospectus, as
supplemented by the prospectus supplement specifically relating to
the Securities in the form first used to confirm sales of the
Securities (or in the form first made available to the Underwriters
by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act) is hereinafter referred to as the “
Prospectus ,” and the term “ preliminary
prospectus ” means any preliminary form of the
Prospectus. For purposes of this Agreement, “
free writing prospectus ” has the meaning set forth in
Rule 405 under the Securities Act, “ Time of Sale
Prospectus ” means the preliminary prospectus together
with the free writing prospectuses, if any, each identified in
Schedule I hereto, and “ broadly available road show
” means a “bona fide electronic road show” as
defined in Rule 433(h)(5) under the Securities Act that has been
made available without restriction to any person. As
used herein, the terms “Registration Statement,”
“Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms “
supplement ,” “ amendment ,” and
“ amend ” as used herein with respect to the
Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus
shall include all documents subsequently filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), that are deemed
to be incorporated by reference therein. The term
“ Time of Sale ” means 4:30 p.m. on the date
hereof, the time of the initial sale of the Securities in
connection with the offering when the Prospectus is not yet
available to prospective purchasers.
This offering,
the Notes, the Guarantees, this Agreement, the Indenture, the
application of proceeds from the offering and the transactions
contemplated hereby or thereby are referred to collectively as the
“ Transactions .”
1.
Representations and Warranties . The Company and
the Guarantors, jointly and severally, represent and warrant to and
agree with each of the Underwriters that:
(a) The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission. The Company is a
well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) eligible to use the Registration Statement as an
automatic shelf registration statement and the Company has not
received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(b) (i)
Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Time of Sale
Prospectus or the Prospectus complied or will comply when so filed
in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii)
the Registration Statement as of the date hereof does not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (iv) the Registration Statement
and the Prospectus comply, and as amended or supplemented, if
applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (v) the Time of Sale Prospectus does not,
and at the Time of Sale and at the Closing Date (as defined in
Section 4), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (vi) each
broadly available road show, if any, when considered together with
the Time of Sale Prospectus, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading and (vii) the Prospectus
does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to (A) statements or omissions
in the Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein or (B) that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the “ Trust Indenture Act ”), of the
Trustee.
(c) None
of the Issuers is an “ineligible issuer” in connection
with the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission
thereunder. Except for the free writing prospectuses, if
any, identified in Schedule I hereto, and electronic road shows, if
any, each furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing
prospectus.
(d) Each
of the Issuers and their respective Significant Subsidiaries
(“ Significant Subsidiary ” means any subsidiary
that is a “significant subsidiary” of the Company
within the meaning of Rule 1-02 of Regulation S-X promulgated by
the Commission) (i) is either a corporation, a limited liability
company or a partnership duly organized, validly existing and in
good standing (if applicable) under the laws of its jurisdiction of
organization and (ii) has full corporate, limited liability company
or partnership, as the case may be, power and authority to enter
into, execute, deliver, perform, make and consummate, as the case
may be, the Transactions to which it is a party. Each of
the Issuers, (i) has full corporate, limited liability company or
partnership, as the case may be, power and authority to own, lease
and operate its properties and to conduct the businesses in which
they are engaged and (ii) is duly qualified as a foreign
corporation, a foreign limited liability company or a foreign
partnership, as the case may be, to transact business and is in
good standing (if applicable) in each jurisdiction in which the
nature of its business or the ownership or leasing of its
properties make such qualification necessary, except where the
failure to so qualify or to have such power and authority could
not, individually or in aggregate, reasonably be expected to have a
Material Adverse Effect. “ Material Adverse
Effect ” means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Company and
its subsidiaries taken as a whole or (b) the material impairment of
the ability of any of the Company or any of the Guarantors to
consummate the Transactions to which it is a party and to perform
in any material respect its material obligations under any of the
documents related thereto.
(e) This
Agreement has been duly authorized, executed and delivered by each
Issuer and constitutes a valid and legally binding agreement of
each of the Issuers.
(f) The
Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized by the Company and the Guarantors, and, at
the Closing Date, will have been duly executed and delivered by the
Company and each such Guarantor and will constitute valid and
legally binding obligations of the Company and each such Guarantor,
each enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity
principles.
(g) The
Notes have been duly authorized by each of the Issuers; and when
the Notes are issued, executed and authenticated with the terms of
the Indenture, the Notes will be entitled to the benefits of the
Indenture and will be the valid and legally binding obligations of
the Issuers, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity
principles.
(h) The
Guarantee to be endorsed on the Notes by each Guarantor have been
duly authorized by such Guarantors; and, when issued, will have
been duly executed and delivered by each such Guarantor and will
conform in all material respects to the description thereof
contained in the Prospectus, as supplemented by any Free Writing
Prospectus. When (i) the Notes have been issued,
executed and authenticated in accordance with the terms of the
Indenture, the Guarantee of each Guarantor endorsed thereon will
constitute a valid and legally binding obligation of such
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity
principles.
(i)
Each of this Agreement, the Indenture
and the Securities, conforms or will conform, as the case may be,
in all material respects to the descriptions thereof contained in
the Prospectus, as supplemented by any Free Writing
Prospectuses.
(k) Other
than as set forth in the Prospectus, as supplemented by any Free
Writing Prospectus, the issuance, entering into, execution,
delivery, performance, making and consummation, as the case may be,
by each of the Issuers of the Transactions to which it is a party
will not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Issuers pursuant to
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Issuers are a party or by
which the Issuers are bound or to which any of the property or
assets of the Issuers is subject, (ii) result in the violation of
any provisions of the charter or by-laws (or similar organization
documents) of the Issuers, or (iii) result in the violation of, or
in the creation or imposition of any lien, charge or encumbrances
upon any property or assets of the Issuers pursuant to any
Applicable Law (as defined below) or any judgment, order or decree
of any Governmental Authority (as defined below) (including,
without limitation, the Federal Communications Commission (the
“ FCC ”) and any State regulatory agency) having
jurisdiction over the Issuers or any of their properties or assets,
except in the case of clauses (i) and (iii) above, as could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and no consent, approval, authorization or
order of, or filing or registration with, any such Governmental
Authority (including, without limitation, the FCC) under any such
Applicable Law, judgment, order or decree is required for the
execution, delivery, performance, making and consummation, as the
case may be, of the Transactions to which any of the Issuers is a
party, and compliance by each of the Issuers with the terms
thereof, except for such consents, approvals, authorizations,
filings, orders, registrations or qualifications (A) which shall
have been obtained or made prior to the Closing Date, or (B) the
failure of which to be obtained or made could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
“
Applicable Law ” means all laws, statutes, rules,
regulations and orders of, an legally binding interpretations by,
any Governmental Authority and judgments, decrees, injunctions,
writs, permits, orders or like governmental action of any
Governmental Authority applicable to any of the Issuers or any of
their properties, assets or operations, excluding Environmental
Laws (as defined below).
“
Governmental Authority ” means any of (a) the
government of the United States of America or any State or other
political subdivision thereof, (b) any government or political
subdivision of any other jurisdiction in which any of the Issuers
conducts all or any part of its business, or which properly asserts
jurisdiction over any properties of any of the Issuers, (c) any
entity properly exercising executive, legislative, judicial,
regulatory or administrative functions of any such government and
(d) The New York Stock Exchange, Inc. (the “ NYSE
”).
(l) None
of the Company or any of its subsidiaries is (i) in violation of
its charter or by-laws (or similar organization documents), (ii) in
default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its property or assets
is subject or (iii) in violation in any respect of any Applicable
Law or order or decree of any Governmental Authority to which it or
its property or assets are subject; except for any violation under
clauses (ii) and (iii) that could not, individually or in the
aggregate, reasonably be expect to have a Material Adverse
Effect.
(m) None
of the Company or any of its subsidiaries has sustained since
December 31, 2008 any material loss or material interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, other than as set forth or
contemplated in the Time of Sale Prospectus; and, since the
respective dates as of which information is given in the Time of
Sale Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company (other than the
issuance and sale of Notes under this Agreement) or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the condition (financial or other),
business, properties or results of operations of the Company and
its subsidiaries, taken as a whole, and, except as disclosed in or
contemplated by the Time of Sale Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock. This
Section 1(m) shall not apply to environmental matters, which
are the subject of Section 1(x).
(n) Other
than as set forth in the Time of Sale Prospectus, there are no
legal or administrative proceedings pending by or before any Person
to which any of the Issuers is a party or of which any business,
property or assets of any of the Issuers is the subject, or, to the
knowledge of the Company, after due inquiry, by which any business
property or assets of any of the Issuers would reasonably be expect
to be affected, which, (i) singularly or in the aggregate, if
determined adversely to any of the Issuers, could, individually or
in the aggregate, reasonably be expected to result in a Material
Adverse Effect or (ii) would reasonably be expected to question the
validity or enforceability of any of this Agreement or any of the
Transactions or any action taken or to be taken or to be taken
pursuant thereto; and to the knowledge of the Company, no such
proceedings are threatened or contemplated.
(o) No
action has been taken and no Applicable Law or order has been
enacted, adopted or issued by any Governmental Authority which
prevents the sale and issuance of the Securities in any
jurisdiction; no injunction, restraining order or order of any
nature by any Governmental Authority of competent jurisdiction has
been issued with respect to the Company or Guarantors which would
prevent or suspend the issuance or sale of the Securities; and no
action, suit or proceeding is pending against or, to the knowledge
of the Company, threatened against or affecting the Company, or any
of its subsidiaries by or before any Governmental Authority which
could reasonably be expected to interfere with or materially
adversely affect the issuance of the Securities or in any manner
draw into question the validity or enforceability of any of this
Agreement of any of the Transactions, or any action taken or to be
taken pursuant thereto.
(p) Except
as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, each of the Company and
its subsidiaries possesses all licenses, authorizations and permits
issued by, and has made all declarations and filings with, all
appropriate Governmental Authorities which are necessary for the
ownership of their respective properties or the conduct of their
respective business as described in the Time of Sale Prospectus and
neither the Company nor any of its subsidiaries has received
notification of any revocation or modification or any such material
license, authorization or permit.
(q) Each
preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when
so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder.
(r) Each
of the Company and its subsidiaries has timely filed all federal,
state, local and foreign income and other tax returns and notices
required to be filed by applicable law, except where the failure to
file such tax returns could not reasonably be expected to have a
Material Adverse Effect, and all such tax returns were in all
material respects true, correct and complete. No audit,
administrative proceedings or court proceedings are presently
pending with regard to any material potential federal, state, local
or foreign tax of any nature; the Company has no knowledge of any
tax deficiencies which could reasonably be expected to have a
Material Adverse Effect. Each of the Company and its
subsidiaries has paid (within the time and in the manner prescribed
by law) all federal, state and local taxes of any nature which are
shown on its returns to be due, in each case except for those not
yet delinquent and those being contested in good faith by
appropriate proceedings diligently conducted for which the Company
and/or each of its subsidiaries has established on its books and
records adequate reserves to pay all outstanding tax liabilities in
accordance with United States generally accepted accounting
principles. None of the Company or any of its
subsidiaries has requested any extension of time within which to
file any material tax return, which return has not since been filed
within the time period permitted by such extension; the amounts
currently set up as provisions for taxes or otherwise by the
Company and its subsidiaries on their books and records are
reasonably expected to be sufficient for the payment of all their
unpaid federal, state and local taxes accrued through the dates as
of which they speak, and for which each of the Company and its
subsidiaries may be liable in their own right, or as a transferee
of, or as successor to any other corporation, association,
partnership, joint venture or other entity.
(s) None
of the Issuers is an “investment company” or a company
“controlled by” an investment company within the
meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder.
(t) The
Company has an authorized capitalization as set forth in the Time
of Sale Prospectus, and all of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized
and issued and are fully paid and nonassessable and all of the
issued equity interests of each subsidiary of the Company (except
for directors’ qualifying shares and except as otherwise set
forth in the Time of Sale Prospectus and except for certain
immaterial subsidiaries and except for the pledge of the equity or
membership interests of subsidiaries owned by the Company or a
direct or indirect subsidiary of the Company as security for the
obligations of the holder thereof under the Company’s
existing credit facility) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(u) Each
of the Issuers has good and marketable title in fee simple to, or
has valid rights to lease or otherwise use, all items of real and
personal property which are material to the business of the
Issuers, in the case of the Company free and clear of all liens,
encumbrances, claims and defects and imperfections of title except
such as (i) are described in the Time of Sale Prospectus, (ii) are
permitted liens under (and as defined in) the Indenture, or (iii)
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(v) Except
as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, each of the Issuers has
insurance or adequate reserves covering their respective
properties, operations, personnel and businesses, which insurance
or adequate reserves are in amounts as are, in the reasonable
judgment of the Company, adequate to protect the Issuers and their
businesses.
(w) Except
as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect: (i) each of the Issuers
owns or possesses adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their
respective businesses; and (ii) the conduct of the Issuers’
respective businesses do not conflict in any respect with, and none
of the Issuers has received any notice of any claim of conflict
with, any such rights of others.
(x) Other
than as set forth in the Time of Sale Prospectus and except as
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect: (i) there is not and has not
been any presence, storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any
kind of Hazardous Materials (as defined below) by the Company and
its subsidiaries, or any other entity (including any predecessor)
for whose acts or omissions the Company and its subsidiaries is or
may be liable from, in, on, at, under, about or upon any property
now or, during the period of ownership, lease or operation by the
Company and its subsidiaries, previously owned, leased or operated
by the Company or any of its subsidiaries, or upon any other
property, in violation of any Environmental Law or which would,
under any Environmental Law, give rise to any liability of the
Company or any of its subsidiaries; and (ii) there is not and has
not been any presence, disposal, discharge, emission or other
release of any kind onto such property of any Hazardous Materials
with respect to which the Company has knowledge.
“
Environmental Laws ” means all applicable foreign,
federal, state or local laws, statutes, common law duties, rules,
regulations, ordinances and codes, together with all administrative
orders, Environmental Permits (as defined below) of, and
legally-binding agreements with, any Governmental Authorities, in
each case relating to environmental, health, safety and land use
matters; including, without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Clean Air Act, the Federal Water Pollution Control Act of 1972, the
Solid Waste Disposal Act, and the Emergency Planning and Community
Right-to-Known Act.
“
Environmental Permits ” means all permits, licenses,
registrations, consents and other authorizations of any
Governmental Authority which are required with respect to any of
the facilities of the Company or any of its subsidiaries or
operations under any applicable Environmental Laws.
“
Hazardous Materials ” means (i) any
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