**Exhibit 2.03.5**

 

**AMENDMENTNO. 3 TO ASSET PURCHASE AGREEMENT BETWEENADELPHIA COMMUNICATIONS CORPORATION ANDTIME WARNER NY CABLE LLC**

 

This Amendment No. 3, dated June 26,2006 (this “Amendment”), amends the Asset Purchase Agreement, betweenAdelphia Communications Corporation (“Seller”) and Time Warner NY CableLLC (“Buyer”), dated as of April 20, 2005, as amended by AmendmentNo.1, dated June 24, 2005, Amendment No. 2, dated June 21, 2006and as otherwise amended to date (as so amended, the “TWNY Purchase Agreement”).  Capitalized terms used but not otherwisedefined herein shall have the respective meanings ascribed to them in the TWNYPurchase Agreement.

 

WHEREAS, the parties hereto desire to amendthe TWNY Purchase Agreement pursuant to Section 9.2 thereof to clarifycertain provisions contained therein.

 

NOW, THEREFORE, in consideration of theforegoing, the parties hereto, intending to be legally bound, hereby agree asfollows:

 

# 1.             (a)           Prior to the  20th day but no earlier than the first day of themonth during which Buyer and Friendco, after consultation with Seller,reasonably anticipate the Closing to occur, Buyer and Friendco may deliver toSeller a written notice signed by both Buyer and Friendco (the “SysprinSplit Notice”) instructing Seller to split the eleven (11) billing “Sysprins”set forth on Annex 1 hereto (each, a “Split Sysprin”), such splitto occur on the 21st day of such month (the “Sysprin Split Date”)or as soon thereafter as possible but not later than the 29th day of the month in which theSysprin Split Notice is delivered(except to the extent so delayed as a resultof 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 subscriberinformation (e.g., address, CPE, services, rates) for a given geographicarea.  During the period prior to theSysprin Split Date, Seller, in cooperation with Buyer and Friendco, shall planthe implementation of and test the accuracy of the processes utilized toperform the Sysprin splits.  If a SysprinSplit Notice is timely delivered, then on the Sysprin Split Date (and, if thesplit does not occur on such date, thereafter until completed), Seller shalluse its reasonable commercial efforts to cause each Split Sysprin to be splitaccording to the franchise areas (or where such Split Sysprin contains lessthan the entire applicable franchise area, according to the applicablefranchise tax areas) in such Split Sysprin as set forth on Annex 1hereto; it being understood that Seller will not bear any responsibilityfor any failure in performing any Sysprin split that is planned, tested andimplemented in cooperation with Buyer and Friendco to the extent such failureresults from causes or circumstances beyond the reasonable control of Seller.

 

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## (b)           No later than 5calendar days after the date hereof, Seller shall provide Buyer a price quotefrom each of its applicable billing vendors stating the cost to perform theSysprin splits; provided, that Seller shall utilize any discounted orfree split rights available to it.  Buyershall reimburse Seller at the first to occur of the Closing and the terminationof the TWNY Purchase Agreement for all out-of-pocket costs of performing thesplits as were pre-approved by Buyer in writing (such approval or disapprovalto be provided no later than 10 calendar days following delivery by Seller of arequest therefor); provided, however, that if Buyer disapprovesof such costs, Buyer and Seller shall negotiate in good faith to resolve suchdisagreement within 15 calendar days following such disapproval; and providedfurther, that if termination results in an obligation on the part of Sellerto pay a termination fee to Buyer pursuant to Section 8.5(b) of theTWNY Purchase Agreement, Buyer shall have no obligation to reimburse Seller forits costs incurred pursuant to paragraph 1(a) and this paragraph 1(b).

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## (c)           If the Closing doesnot occur in the calendar month in which the Sysprin Split Date occurs or thecalendar month immediately thereafter, then, with respect to each SplitSysprin, (i) the Eligible Basic Subscribers in such Split Sysprin shall becalculated (including with respect to the definitions of “Measurement Date”, “QualifiedCustomer” and “Permitted Promotion”) as if the Closing and Closing Date hadoccurred on the last Business Day in the calendar month following the calendarmonth in which the Sysprin Split Date occurred and (ii) the number ofEligible Basic Subscribers so calculated shall be reduced by the “SubscriberLoss” for each month that elapses from the Sysprin Split Date through theMeasurement Date (as such Measurement Date is determined in accordance with theTWNY Purchase Agreement based on the actual Closing Date).  As used herein, “Subscriber Loss” means, foreach monthly period, 0.25% of the number of Eligible Basic Subscribers in theSplit Sysprins as determined in accordance with clause (i) of thepreceding sentence.  For the avoidance ofdoubt, if the Closing occurs in the calendar month in which the Sysprin SplitDate occurs or the calendar month immediately thereafter, then the EligibleBasic Subscribers in such Split Sysprin shall be calculated in accordance withthe TWNY Purchase Agreement without giving effect to this Section 1(c),but subject to Section 1(d) hereof.

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## (d)           Buyer and Selleragree that, to the extent that, solely as a result of the Sysprin splitdescribed above, payments by individual Basic Subscribers in any Split Sysprinare not able to be accurately tracked by the Subscriber Accounting System todetermine whether the Qualified Customer test in clause (C)(2) of thedefinition of Eligible Basic Subscriber (in the TWNY Purchase Agreement) issatisfied, and such test cannot otherwise be performed without Seller incurringany incremental out-of-pocket expenses that are not reimbursed by Buyer, thenall such Basic Subscribers that would otherwise be subject to such QualifiedCustomer test and that cannot be accurately tracked in such Split Sysprin shallbe deemed Qualified Customers for that test; itbeingunderstoodthat all such Basic Subscribers shall remain subject to the remaining 

 

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tests of the Eligible BasicSubscriber definition, including the remaining requirements of such clause (C)(2) thatsuch Basic Subscriber not be subject as of the Measurement Date (or deemedMeasurement Date, to the extent applicable, under Section 1(c) hereof)to any discount or promotion other than a Permitted Promotion or HistoricPromotion.

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# 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 theapplicable agreement with CSG or DST to terminate, effective as of 30 daysfollowing the Closing or the MCE Closing (as applicable), CSG’s or DST’sservices with respect to the Acquired Systems designated by Buyer; provided,that Buyer shall reimburse Seller at the Closing for any out-of-pocket costs orexpenses incurred by Seller or any of its Affiliates arising out of orresulting from such deconversion notice.

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# 3.             (a)           Schedule 5.8(a)(ii) ofthe Seller Disclosure Schedule shall be amended by renumbering numberedparagraph 2 as numbered paragraph 3 and deleting numbered paragraph 1 andreplacing it in its entirety with the following:

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“1.           AllEmployees of Adelphia Media Services who are currently identified by jobfunction, description or title, or otherwise noted, on this Schedule 5.8(a)(ii)* *of the Seller Disclosure Schedule, other than theEmployees listed on Exhibit A hereto or the successor to theposition of an Employee listed on Exhibit A hereto (each suchEmployee on Exhibit A or his successor, a “Designated AMSEmployee”), and

 

2.             Allcorporate and regional Employees who are currently identified by job function,description or title, or otherwise noted, on this Schedule 5.8(a)(ii) ofthe Seller Disclosure Schedule, other than the Employees listed on Exhibit Bhereto or the successor to the position of an Employee listed on Exhibit Bhereto (each such Employee on Exhibit B or his successor, a “DesignatedRegional Employee”).”

 

## (b)           Schedule 5.8(a)(ii) ishereby further amended by adding a new Exhibit A and Exhibit Bto such Schedule at the end thereof in the form of Exhibit Aand Exhibit B to this Amendment, respectively.

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## (c)           Notwithstanding theprovisions of Section 5.8(d) of the TWNY Purchase Agreement, Sellershall reimburse Buyer on a dollar-for-dollar basis for any reasonable costsincurred by Buyer or its Affiliates, including the payment of severance, to theextent resulting from any termination of employment of or by any DesignatedRegional Employee with Buyer or its Affiliates, which termination occurs on orprior to the ninetieth (90th) calendar day following the Closing Date otherthan to the extent (i) such termination results from Buyer’s or any of itsAffiliates’ conduct that is in violation of applicable Law; itbeingunderstoodthat only a determination by a court or arbitrator ofcompetent jurisdiction that arises as a result of any employment-related actionshall be determinative for purposes of this clause (i) (in which caseBuyer shall be 

 

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## responsiblefor all Liabilities to the extent resulting from such conduct except that thepayment of severance under Buyer’s or its Affiliates’ severance plans shall bereimbursed regardless of Buyer’s or its Affiliates’ conduct), (ii) suchamount is included in the Closing Net Liabilities Amount used in calculatingthe Final Adjustment Amount for the Specified Business in which suchTransferred Employee is employed or (iii) except pursuant to the Exchange,arising in connection with any disposition of any system following the Closing(the “Regional Employees Reimbursement Obligation”).  The Regional Employees ReimbursementObligation shall (A) to the extent permitted by law, be payable as anadministrative expense under section 507(a)(1) of the Bankruptcy Codeand, in any event, shall be payable by the Seller (and its successors under anyplan of reorganization of Seller) from the applicable Reserve (as definedbelow) and, to the extent that the applicable Reserve is insufficient, fromfunds other than the Escrow unless the Buyer shall, in its sole discretion,elect to utilize funds in the Escrow, (B) constitute Excluded Liabilitiesunder the TWNY Purchase Agreement, including for purposes of Section 7.2(a)(iii) ofthe TWNY Purchase Agreement, and (C) in no event be subject to the CapAmount or otherwise be considered in calculating the Cap Amount.  For purposes of reserving for its obligationsunder this Section 3(c), Seller shall establish reserves pursuant to anorder of the Bankruptcy Court prior to Closing in an amount equal to $383,000in respect of the Group 1 Business (the “Group 1 Reserve”) and equal to$484,000 in respect of the Group 2 Business (the “Group 2 Reserve”; eachof the Group 1 Reserve and the Group 2 Reserve, a “Reserve”).  No later than 120 calendar days following theClosing, Buyer shall provide Seller a list of all Designated Regional Employeeswhose termination of employment following the Closing Date has given rise to aRegional Employee Reimbursement Obligation and a good faith estimate of theseverance payment owed to each such Designated Regional Employee.  For the avoidance of doubt, references inthis Section 3(c) to Buyer and its Affiliates shall be deemed toinclude references to Friendco and its Affiliates to the extent that anyDesignated Regional Employee is hired by Friendco or its Affiliates pursuant tothe Exchange Agreement.

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## (d)           The seventh sentenceof Section 5.8(a) of the TWNY Purchase Agreement shall be amended inits entirety to read as follows:

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“As promptly as practicable, but no laterthan 15 Business Days prior to the Closing Date, Buyer shall provide to Sellera list of the Applicable Employees who do not satisfy the Background Check, byjob position or name and region, and as to whom Buyer as a result of suchBackground Check failure has not made offers of employment pursuant to this Section 5.8(a).”

 

## (e)           The first twosentences of Section 5.7(e) of the TWNY Purchase Agreement (EmployeeWithholding and Reporting Matters) shall be amended in their entirety to readas follows:

 

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“With respect to the calendar year in whichthe Closing Date occurs, Seller shall retain responsibility for preparing andfiling all  Forms W-2, Wage and TaxStatements, Forms 941, Employer’s Quarterly Federal Tax Return, Forms W-4,Employee’s Withholding Allowance Credit, Forms W-5, Earned Income CreditAdvance Payment Certificate and all Forms 1099 required with respect tocompensation earned by Employees, including Transferred Employees, through theClosing Date.  Seller and Buyer agree tocomply with the procedures described in Section 4 of the Revenue Procedure2004-53.”

 

## (f)            Schedule 1.1(c) tothe TWNY Purchase Agreement is hereby amended by moving item 4 on such Schedule fromthe Group 1 Business to the Group 2 Business.

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# 4.             Schedule Ato the TWNY Purchase Agreement is hereby amended as follows:

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## (a)           Part 1 of Schedule Ato the TWNY Purchase Agreement shall be amended by inserting a row as follows:

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**3  1579 Mendon, Town of, Vt. (Mtn. Cable) VT    178    Bucket 3    0**

 

## (b)           Part 2A of Schedule Ato the TWNY Purchase Agreement shall be amended by inserting a row as follows:

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**4  1247 Lodi, Township of, OH                      OH     367   Bucket 4    0**

 

# 5.             Schedules1.1(i), 1.1(s)(i) and 3.2(b) of the Seller Disclosure Schedule shalleach be amended, which amendment shall be deemed to be (other than with respectto Section 3.15(a) of the TWNY Purchase Agreement) as of the date ofthe TWNY Purchase Agreement, by deleting the references to “TV Gateway, LLC” andthe corresponding disclosure and, in each case, replacing such disclosure withthe word “[Reserved]”.

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# 6.             Schedule 2.2(j)of the Seller Disclosure Schedule shall be amended by inserting thefollowing disclosure as item 20 to such disclosure schedule, which shall bedeemed (other than with respect to Section 3.15(a) of the TWNYPurchase Agreement) to have been included in the Seller Disclosure Schedule asof the date of the TWNY Purchase Agreement:

 

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| 20. |   | TV Gateway, LLC (n/k/a Sedna Patent  Services, LLC), a Delaware limited liability company |   | Seller holds 843,547 units, which represent  2.03% of all outstanding units of Sedna Services |
|-----|--------|-------------------------------------------------------------------------------------------|--------|-----------------------------------------------------------------------------------------------|

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# 7.             Schedule 3.2(c) ofthe Seller Disclosure Schedule shall be amended by inserting the followingdisclosure as item 16 to such disclosure schedule, which shall be deemed (otherthan with respect to Section 3.15(a) of the TWNY Purchase Agreement)to have been included in the Seller Disclosure Schedule as of the date ofthe TWNY Purchase Agreement:

 
| 16. |   | TV Gateway, LLC (n/k/a Sedna Patent  Services, LLC), a Delaware limited liability company |   | Seller holds 843,547 units, which represent  2.03% of all outstanding units of Sedna Services |
|-----|--------|-------------------------------------------------------------------------------------------|--------|-----------------------------------------------------------------------------------------------|

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# 8.             Except asspecifically amended by this Amendment, the TWNY Purchase Agreement shallremain in full force and effect and is hereby ratified and confirmed.  This Amendment shall be construed as one withthe TWNY Purchase Agreement, and the TWNY Purchase Agreement shall, where thecontext requires, be read and construed so as to incorporate this Amendment.

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# 9.             This Amendmentshall be governed by and construed in accordance with the TWNY PurchaseAgreement.

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# 10.           This Amendment may be executed in oneor more counterparts, each of which shall be deemed an original, and all ofwhich shall constitute one and the same Amendment.

 

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# IN WITNESSWHEREOF, the parties have executed or caused this Amendment to be executed asof the date first written above.

 
| ** ** | **ADELPHIA   COMMUNICATIONS   CORPORATION** |                                             |
|------------|---------------------------------------------|--------------------------------------------------|
|       |                                        |
|       |                                        |
|       | By:                                         | /s/ Vanessa Wittman                              |   |
|       |                                        | Name: Vanessa Wittman                            |
|       |                                        | Title: Executive VP and Chief Financial  Officer |
|       |                                        |                                             |
|       |                                        |                                             |
|       |                                        |                                             |
| ** ** | **TIME WARNER NY CABLE   LLC**              |
|       |                                        |                                             |
|       |                                        |                                             |
|       | By:                                         | /s/ Satish R. Adige                              |   |
|       |                                        | Name: Satish R. Adige                            |
|       |                                        | Title: Senior Vice President, Investments        |
|            |                                             |                                                  |  |  |

 

 

Acknowledged and Approved:

 

**COMCAST CORPORATION**

 

 
| By:    | /s/ Robert S. Pick           |   |
|--------|------------------------------|--------|
|   | Name: Robert S. Pick         |
|   | Title: Senior Vice President |