EXHIBIT 2.03.12
AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
BETWEEN ADELPHIA COMMUNICATIONS CORPORATION
AND COMCAST CORPORATION
This Amendment No.
3, dated June 26, 2006 (this “ Amendment ”),
amends the Asset Purchase Agreement, between Adelphia
Communications Corporation (“ Seller ”) and
Comcast Corporation (“ Buyer ”), dated as of
April 20, 2005, as amended by Amendment No.1, dated June 24, 2005,
Amendment No. 2, dated June 21, 2006 and as otherwise amended to
date (as so amended, the “ Comcast Purchase Agreement
”). Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to them in the
Comcast Purchase Agreement.
WHEREAS, the
parties hereto desire to amend the Comcast Purchase Agreement
pursuant to Section 9.2 thereof to clarify certain provisions
contained therein.
NOW, THEREFORE, in
consideration of the foregoing, the parties hereto, intending to be
legally bound, hereby agree as follows:
1.
(a)
Prior to the 20 th day
but no earlier than the first day of the month during which Buyer
and Friendco, after consultation with Seller, reasonably anticipate
the Closing to occur, Buyer and Friendco may deliver to Seller a
written notice signed by both Buyer and Friendco (the “
Sysprin Split Notice ”) instructing Seller to split
the eleven (11) billing “Sysprins” set forth on
Annex 1 hereto (each, a “ Split Sysprin
”), such split to occur on the 21 st day
of such month (the “ Sysprin Split Date ”) or as
soon thereafter as possible but not later than the 29 th
day of the month in which the Sysprin Split Notice is
delivered (except to the extent so delayed as a result of causes or
circumstances beyond the reasonable control of Seller, including,
without limitation, the fault of any third party provider).
For purposes of this Amendment, “ Sysprin ”
means a so-called sysprin or billing corp database containing
subscriber information (e.g., address, CPE, services, rates) for a
given geographic area. During the period prior to the Sysprin
Split Date, Seller, in cooperation with Buyer and Friendco, shall
plan the implementation of and test the accuracy of the processes
utilized to perform the Sysprin splits. If a Sysprin Split
Notice is timely delivered, then on the Sysprin Split Date (and, if
the split does not occur on such date, thereafter until completed),
Seller shall use its reasonable commercial efforts to cause each
Split Sysprin to be split according to the franchise areas (or
where such Split Sysprin contains less than the entire applicable
franchise area, according to the applicable franchise tax areas)in
such Split Sysprin as set forth on Annex 1 hereto; it
being understood that Seller will not bear any responsibility
for any failure in performing any Sysprin split that is planned,
tested and implemented in cooperation with Buyer and Friendco to
the extent such failure results from causes or circumstances beyond
the reasonable control of Seller.
(b)
No later than 5 calendar days after the date hereof, Seller shall
provide Buyer a price quote from each of its applicable billing
vendors stating the cost to perform the Sysprin splits;
provided , that Seller shall utilize any discounted or free
split rights available to it. Buyer shall reimburse Seller at
the first to occur of the Closing and the termination of the
Comcast Purchase Agreement for all out-of-pocket costs of
performing the splits as were pre-approved by Buyer in writing
(such approval or disapproval to be provided no later than 10
calendar days following delivery by Seller of a request therefor);
provided , however , that if Buyer disapproves of
such costs, Buyer and Seller shall negotiate in good faith to
resolve such disagreement within 15 calendar days following such
disapproval; and provided further , that if termination
results in an obligation on the part of Seller to pay a termination
fee to Buyer pursuant to Section 8.5(b) of the Comcast Purchase
Agreement, Buyer shall have no obligation to reimburse Seller for
its costs incurred pursuant to paragraph 1(a) and this paragraph
1(b).
(c)
If the Closing does not occur in the calendar month in which the
Sysprin Split Date occurs or the calendar month immediately
thereafter, then, with respect to each Split Sysprin, (i) the
Eligible Basic Subscribers in such Split Sysprin shall be
calculated (including with respect to the definitions of
“Measurement Date”, “Qualified Customer”
and “Permitted Promotion”) as if the Closing and
Closing Date had occurred on the last Business Day in the calendar
month following the calendar month in which the Sysprin Split Date
occurred and (ii) the number of Eligible Basic Subscribers so
calculated shall be reduced by the “Subscriber Loss”
for each month that elapses from the Sysprin Split Date through the
Measurement Date (as such Measurement Date is determined in
accordance with the Comcast Purchase Agreement based on the actual
Closing Date). As used herein, “Subscriber Loss”
means, for each monthly period, 0.25% of the number of Eligible
Basic Subscribers in the Split Sysprins as determined in accordance
with clause (i) of the preceding sentence. For the avoidance
of doubt, if the Closing occurs in the calendar month in which the
Sysprin Split Date occurs or the calendar month immediately
thereafter, then the Eligible Basic Subscribers in such Split
Sysprin shall be calculated in accordance with the Comcast Purchase
Agreement without giving effect to this Section 1(c), but subject
to Section 1(d) hereof.
(d)
Buyer and Seller agree that, to the extent that, solely as a result
of the Sysprin split described above, payments by individual Basic
Subscribers in any Split Sysprin are not able to be accurately
tracked by the Subscriber Accounting System to determine whether
the Qualified Customer test in clause (C)(2) of the definition of
Eligible Basic Subscriber (in the Comcast Purchase Agreement) is
satisfied, and such test cannot otherwise be performed without
Seller incurring any incremental out-of-pocket expenses that are
not reimbursed by Buyer, then all such Basic Subscribers that would
otherwise be subject to such Qualified Customer test and that
cannot be accurately tracked in such Split Sysprin shall be deemed
Qualified Customers for that test; it being
understood that all such Basic Subscribers shall
remain subject to the remaining
2
tests of the Eligible
Basic Subscriber definition, including the remaining requirements
of such clause (C)(2) that such Basic Subscriber not be subject as
of the Measurement Date (or deemed Measurement Date, to the extent
applicable, under Section 1(c) hereof) to any discount or promotion
other than a Permitted Promotion or Historic Promotion.
2.
At Buyer’s request, Seller shall, on behalf of Buyer, issue a
deconversion notice to CSG Systems, Inc. (“ CSG
”) and/or DST Innovis, Inc. (“ DST ”)
pursuant to the applicable agreement with CSG or DST to terminate,
effective as of 30 days following the Closing or the MCE Closing
(as applicable), CSG’s or DST’s services with respect
to the Acquired Systems designated by Buyer; provided , that
Buyer shall reimburse Seller at the Closing for any out-of-pocket
costs or expenses incurred by Selle
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