UNITED STATES
 
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: October 1, 2012
 
CINCINNATI BELL INC.
(Exact name of registrant as specified in its charter)
 


Ohio
(State or other jurisdiction
of incorporation)
 
1-8519
(Commission File Number)
 
31-1056105
(IRS Employer
Identification No.)

221 East Fourth Street
Cincinnati, Ohio
(Address of principal
executive offices)
 
45202
(Zip Code)
 
Registrant's telephone number, including area code: (513) 397-9900
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
o       Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o       Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o       Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o       Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 




 

 




Section 1 - Registrant's Business and Operations
 
Item 1.01 Amendment of a Material Definitive Agreement.

Amended Receivables Purchase Agreement

On October 1, 2012, Cincinnati Bell Inc. (the “ Company ”), its wholly-owned receivables subsidiary Cincinnati Bell Funding LLC (“ CB Funding ”), the various Purchaser Groups identified therein and PNC Bank, National Association as Administrator and LC Bank entered into the Third Amendment to Amended and Restated Receivables Purchase Agreement (the “ Third Amendment ”). The Third Amendment amends the Company's Amended and Restated Receivables Purchase Agreement originally entered into on June 6, 2011 among the Company, CB Funding, the various Purchasers and Purchaser Agents identified therein and PNC Bank, National Association as Administrator and LC Bank (the “ Amended and Restated Purchase Agreement ”), to remove CyrusOne Inc. (“ CyrusOne ”) as an Originator, remove the CyrusOne receivables from the Receivables Financing and remove certain provisions which are no longer applicable in the Amended and Restated Receivables Purchase Agreement.

On October 1, 2012, the Company, CB Funding, and CyrusOne, entered into the Second Amendment to Amended and Restated Purchase and Sale Agreement (the “ Second Amendment ”). The Second Amendment amends the Company's Amended and Restated Purchase and Sale Agreement originally entered into on June 6, 2011 among the Company, CB Funding, and CyrusOne to remove CyrusOne as an Originator, remove the CyrusOne receivables from the Receivables Financing and remove certain provisions which are no longer applicable in the Amended and Restated Purchase and Sale Agreement.

A copy of the Third Amendment is attached to this Current Report as Exhibit 99.1, and a copy of the Second Amendment is attached to this Current Report as Exhibit 99.2.

Item 9.01 Financial Statements and Exhibits.

 
(d)
 
Exhibits
 
 
 
 
 
99.1
 
Third Amendment to Amended and Restated Receivables Purchase Agreement dated as of October 1, 2012, among Cincinnati Bell Funding LLC, as Seller, Cincinnati Bell Inc., as Servicer, the Various Purchaser Groups identified therein, and PNC Bank, National Association, as Administrator and LC Bank.
 
99.2
 
Second Amendment to Amended and Restated Purchase and Sale Agreement dated as of October 1, 2012, among the Originators identified therein, Cincinnati Bell Funding LLC and Cincinnati Bell Inc. as Servicer and sole member of Cincinnati Bell Funding LLC.


     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.
 
 
 
 
 
 
CINCINNATI BELL INC.
 
 
Date: October 5, 2012
By:  
/s/ Christopher J. Wilson
 
 
 
Christopher J. Wilson
 
 
 
Vice President, General Counsel & Secretary
 
 
 

 
 




Exhibit Index

        
Exhibit
No.
 
Exhibit
99.1
 
Third Amendment to Amended and Restated Receivables Purchase Agreement dated as of October 1, 2012, among Cincinnati Bell Funding LLC, as Seller, Cincinnati Bell Inc., as Servicer, the Various Purchaser Groups identified therein, and PNC Bank, National Association, as Administrator and LC Bank.
99.2
 
Second Amendment to Amended and Restated Purchase and Sale Agreement dated as of October 1, 2012, among the Originators identified therein, Cincinnati Bell Funding LLC and Cincinnati Bell Inc. as Servicer and sole member of Cincinnati Bell Funding LLC.

    

    






THIRD AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “ Amendment ”), dated as of October 1, 2012, is entered into among CINCINNATI BELL FUNDING LLC (the “ Seller ”), CINCINNATI BELL INC., as Servicer (the “ Servicer ”), and as Performance Guarantor (the “ Performance Guarantor ”), the Purchasers and Purchaser Agents parties hereto and PNC BANK, NATIONAL ASSOCIATION (“ PNC ”), as administrator for each Purchaser Group (the “ Administrator ”).
RECITALS
1. The parties hereto are parties to the Amended and Restated Receivables Purchase Agreement, dated as of June 6, 2011 (as amended, amended and restated, supplemented or otherwise modified through the date hereof, the “ Agreement ”); and

2. The parties hereto desire to amend the Agreement as hereinafter set forth.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Certain Defined Terms . Capitalized terms that are used but not defined herein shall have the meanings set forth in the Agreement. As used herein, “ Exiting Originator ” means CyrusOne Inc. , a Delaware corporation, and its successors and permitted assigns, and “ PSA Amendment ” means that certain Second Amendment to the Purchase and Sale Agreement, dated as of the date hereof, by and among the Exiting Originator, the other Originators party thereto, the Seller and the Servicer and consented to by PNC, as Administrator and the Purchaser Agent.

SECTION 2. Amendments to the Agreement . The Agreement is hereby amended as follows:

2.1 Exhibit I to the Agreement is amended by replacing the definition of “CBTS Lease Receivables” in its entirety with the following:

“ CBTS Lease Receivables ” means a Receivable the Originator of which is CBTS and for which the underlying goods and services are hardware and related services procured by the Obligor from CBTS, but of which the expectation for payment of such Receivable is by a third party financier as part of a direct leasing arrangement between such third party financier and the Obligor for such goods and services.
2.2 Exhibit I to the Agreement is amended by replacing the definition of “CBTS Receivable” in its entirety with the following:

“ CBTS Receivable ” means a Receivable the Originator of which is CBTS.
2.3 Exhibit I to the Agreement is amended by deleting in its entirety the defined term “Cyrus”.

2.4 Exhibit I to the Agreement is amended by deleting in its entirety the defined term “CBDC”.





2.5 Exhibit I to the Agreement is amended by deleting in its entirety the defined term “GramTel Receivables”.

2.6 Exhibit I to the Agreement is amended by replacing the definition of “Specified Receivables” in its entirety with the following:

“ Specified Receivables ” means Equipment Lease Receivables and CBTS Software Receivables, in each case until the conditions set forth in the respective definitions thereof are no longer applicable.
2.7 The definition of “Eligible Receivable” set forth in Exhibit I to the Agreement is amended by (a) deleting in its entirety clause (s) thereof, (b) replacing “, and” at the end of clause (r) thereof with “.”, and (c) adding the word “and” to the end of clause (q) thereof.

2.8 Exhibit I to the Agreement is amended by replacing the definition of “Legacy Originator” in its entirety with the following:

“ Legacy Originator ” means any of CBAD Virginia, eVolve, CBAD, CBET, CBT and CBW.
2.9 Schedule II to the Agreement is amended and restated in its entirety as Schedule II attached hereto.

SECTION 3. Reaffirmation of Performance Guarantor . The Performance Guarantor hereby (i) consents (to the extent required under the Performance Guaranty or any applicable law) to and acknowledges and agrees with the amendments contemplated by this Amendment and by the PSA Amendment and any and all other amendments, modifications or waivers to or in the Transaction Documents amended on or before the date hereof, including any and all provisions thereof that may increase the obligations of any Originator, Servicer, Sub-Servicer or Seller and (ii) ratifies and reaffirms all of its payment and performance obligations under the Performance Guaranty.

SECTION 4. Representations and Warranties . Each of the Seller, the Servicer and the Performance Guarantor hereby represents and warrants to the Administrator, each Purchaser and each Purchaser Agent as follows:

(a) Representations and Warranties . The representations and warranties made by it in the Transaction Documents are true and correct as of the date hereof and after giving effect to this Amendment (unless stated to relate solely to an earlier date, in which case such representations or warranties were true and correct as of such earlier date).
(b) Enforceability . The execution and delivery by such Person of this Amendment, and the performance of each of its obligations under this Amendment and the Agreement, as amended hereby, are within its organizational powers and have been duly authorized by all necessary organizational action on its part. This Amendment and the Agreement, as amended hereby, are such Person's valid and legally binding obligations, enforceable in accordance with its terms.
(c) No Default . Both before and immediately after giving effect to this Amendment and the transactions contemplated hereby, no Termination Event or Unmatured Termination Event exists or shall exist.





SECTION 5. Effect of Amendment . All provisions of the Agreement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Agreement shall be deemed to be references to the Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement other than as set forth herein.

SECTION 6. Effectiveness . This Amendment shall become effective as of the date hereof (the “ Effective Date ”) subject to the condition precedent that the Administrator shall have received on or before the Effective Date each of the following, each in form and substance satisfactory to the Administrator:

(a) counterparts of (i) this Amendment and (ii) the PSA Amendment (and evidence that each of the conditions to effectiveness set forth therein have been satisfied) and
(b)      counterparts of an Assignment Agreement, dated as of the date hereof, by and among the Administrator, the Exiting Originator and the Seller.
SECTION 7. Counterparts . This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery by facsimile or email of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart hereof.

SECTION 8. Governing Law . This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York.

SECTION 9. Section Headings . The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.




IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
CINCINNATI BELL FUNDING, as Seller
By: /s/ Christopher C. Elma                 
Name: Christopher C. Elma
Title: Vice President and Treasurer

CINCINNATI BELL INC., as Servicer and as Performance Guarantor
By: /s/ Christopher C. Elma                 
Name: Christopher C. Elma
Title: Vice President and Treasurer

PNC BANK, NATIONAL ASSOCIATION,
as Administrator

By: /s/ William P. Falcon     
Name: William P. Falcon
Title: Vice President

PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent for the Market Street Purchaser Group

By: /s/ Mark Falcione     
Name: Mark Falcione
Title: Senior Vice President

MARKET STREET FUNDING LLC,
as a Related Committed Purchaser

By: /s/ Doris J. Hearn     
Name: Doris J. Hearn
Title: Vice President

MARKET STREET FUNDING LLC,
as a Conduit Purchaser

By: /s/ Doris J. Hearn     
Name: Doris J. Hearn
Title: Vice President

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Purchaser Agent and as Related Committed Purchaser

By: /s/ Eero Maki     
Name: Eero Maki
Title: Senior Vice President










SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of October 1, 2012 (this “ Amendment ”) is entered into by CYRUSONE INC., a Delaware corporation (the “ Exiting Originator ”), the remaining Originators listed on the signature pages hereto, CINCINNATI BELL FUNDING LLC, a Delaware limited liability company (the “ Company ”) and CINCINNATI BELL INC. (“ CB ”), an Ohio corporation, as sole member of the Company and as Servicer.
BACKGROUND:
A.      The Exiting Originator, the Originators, the Company and CB have entered into that certain Amended and Restated Purchase and Sale Agreement, dated as of June 6, 2011 (as amended, restated, supplemented or otherwise modified through the date hereof, and as it may be further amended, restated, supplemented or otherwise modified from time to time, the “ Purchase and Sale Agreement ” or the “ Agreement ”).
B.      The Exiting Originator desires to no longer be a party to the Agreement and to be relieved of all rights and obligations thereunder (other than such obligations which by their express terms survive termination of the Agreement).
C.      The parties hereto desire to amend the Purchase and Sale Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions . Capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings assigned thereto in the Purchase and Sale Agreement or in the Receivables Purchase Agreement (as defined in the Purchase and Sale Agreement).

Section 2. Amendments . The Agreement is hereby amended as follows:

(a) The parties hereto hereby agree that upon the effectiveness of this Amendment, the Exiting Originator shall no longer be party to the Agreement and shall no longer have any obligations or rights thereunder (other than such obligations which by their express terms survive termination of the Agreement).

(b) The sixth recital to the Purchase and Sale Agreement is hereby deleted in its entirety.

(c) Schedule I to the Purchase and Sale Agreement is hereby amended and restated in its entirety as Schedule I attached hereto.

(d) Schedule II to the Purchase and Sale Agreement is hereby amended and restated in its entirety as Schedule II attached hereto.

(e) Schedule III to the Purchase and Sale Agreement is hereby amended and restated in its entirety as Schedule III attached hereto.

(f) Schedule IV to the Purchase and Sale Agreement is hereby amended and restated in its entirety as Schedule IV attached hereto.




Section 3. Representations and Warranties . Each of the Exiting Originator, the Originators, the Company and CB hereby represents and warrants as follows:

(a) Representations and Warranties . The representation and warranties made by it in the Purchase and Sale Agreement, as amended by this Amendment, and in the other Transaction Documents are true and correct as of the date hereof (unless stated to relate solely to an earlier date, in which case such representations and warranties are true and correct as of such earlier date).

(b) Enforceability . The execution and delivery by such Person of this Amendment, and the performance of each of its obligations under this Amendment and the Purchase and Sale Agreement, as amended hereby, are within each of its organizational powers and have been duly authorized by all necessary organizational action on its part. This Amendment and the Purchase and Sale Agreement, as amended hereby, are such Person's valid and legally binding obligations, enforceable in accordance with the terms thereof.

(c) No Default . Both before and immediately after giving effect to this Amendment and the transactions contemplated hereby, no Purchase and Sale Termination Event or Unmatured Purchase and Sale Termination Event exists or shall exist.

Section 4. Effect of Amendment. All provisions of the Purchase and Sale Agreement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Purchase and Sale Agreement shall be deemed to be references to the Purchase and Sale Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Purchase and Sale Agreement other than as set forth herein. Upon the effectiveness of this Amendment and at all times thereafter, references to the Exiting Originator (in such capacity or in any other capacity, including, without limitation, its individual capacity) in the Agreement or any other Transaction Document or in any other agreement or document related to any of the foregoing shall be deemed to be read to take into effect the transactions contemplated by this Amendment.

Section 5. Effectiveness . This Amendment shall become effective as of the date hereof (the “ Effective Date ”) subject to the condition precedent that the Administrator shall have received on or before the Effective Date each of the following, each in form and substance satisfactory to the Administrator: (a) evidence that each of the conditions to effectiveness set forth in that certain Third Amendment to the Receivables Purchase Agreement, dated as of even date herewith, shall have been satisfied and (b) counterparts of this Amendment duly executed by each of the other parties hereto.

Section 6. Miscellaneous . This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery by facsimile or email of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart hereof. The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.
[Signature Pages Follow]
 




IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
CYRUSONE INC.

By: /s/ Kimberly H. Sheehy
Name: Kimberly H. Sheehy
Title: Chief Financial and Administrative Officer

CINCINNATI BELL FUNDING LLC

By: /s/ Christopher C. Elma                 
Name:      Christopher C. Elma
Title: Vice President and Treasurer     


CINCINNATI BELL INC., as sole member of Cincinnati Bell Funding LLC

By: /s/ Christopher C. Elma                 
Name:      Christopher C. Elma
Title: Vice President and Treasurer     


CINCINNATI BELL INC., as Servicer

By: /s/ Christopher C. Elma                 
Name:      Christopher C. Elma
Title: Vice President and Treasurer     




ORIGINATORS:

CINCINNATI BELL ANY DISTANCE INC.,
CINCINNATI BELL TELEPHONE COMPANY LLC, CINCINNATI BELL WIRELESS LLC, CINCINNATI BELL EXTENDED TERRITORIES LLC, CINCINNATI BELL TECHNOLOGY SOLUTIONS INC., EVOLVE BUSINESS SOLUTIONS LLC, and CINCINNATI BELL ANY DISTANCE OF VIRGINIA LLC, as Originators

By: /s/ Christopher C. Elma                 
Name:      Christopher C. Elma
Title: Vice President and Treasurer     







Consented to:

PNC BANK, NATIONAL ASSOCIATION,
as Administrator

By:      /s/ William P. Falcon     
Name: William P. Falcon
Title: Vice President

PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent

By:      /s/ Mark Falcione     
Name: Mark Falcione
Title: Senior Vice President

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Purchaser Agent

By:      /s/ Eero Maki     
Name: Eero Maki
Title: Senior Vice President