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EXHIBIT 10.8
May 24, 1999
Mr. X. Xxxxxxx Xxxxxxx
Chairman of the Board and
Chief Executive Officer
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: Management and Advisory Fees
Dear Xxxxxxx:
This letter confirms the agreement of Classic Communications,
Inc., a Delaware corporation ("Classic"), that Brera Classic, LLC, a Delaware
limited liability company ("Brera"), in connection with the transactions
contemplated by (i) that certain Investment Agreement, dated as of the date
hereof (the "Investment Agreement"), between Classic and Brera, including the
exhibits thereto, and (ii) that certain Securities Purchase Agreement, dated as
of May 11, 1999 (the "Securities Purchase Agreement"), among Classic, Xxxxxx
Group, Inc. and certain other sellers named therein (together, the "Agreements")
will be entitled to the following:
(1) simultaneously with the closing of the transactions
contemplated by the Investment Agreement (the "Closing"), Classic will
pay Brera a $3.0 million fee in consideration for Xxxxx's efforts in
arranging the transactions contemplated by the Investment Agreement
and the Securities Purchase Agreement; provided such fee may not be
modified without the prior written approval of an Investor Majority (as
defined in the Stockholders' Agreement);
(2) Classic will pay Brera an annual fee of $250,000 in
consideration for any transactional assistance or advise that Brera
provides to Classic, which fee will be payable at Closing for 1999 and
during the first week of January beginning January 2000 until Classic
is sold or completes an Initial Public Offering (as defined in the
Stockholders' Agreement); provided such
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fee may not be modified without the prior written approval of an
Investor Majority (as defined in the Stockholders' Agreement); and
(3) Classic will reimburse Brera (a) regardless of whether the
transactions contemplated hereby are consummated, in an amount up to
$750,000 for all reasonable out-of-pocket costs and expenses incurred
by Xxxxx and its affiliates in connection with the Agreements and the
transactions contemplated thereby, including, without limitation, all
fees and expenses of legal counsel, financial advisors, accountants,
and all third-party consultants engaged by Brera and its affiliates to
assist in such transactions, provided that the $750,000 cap cannot be
waived or increased without the approval of an Investor Majority (as
defined in the Stockholders' Agreement), (b) in the event of Closing,
for the fees payable to Brera's financial advisors in connection with
the Closing (including fees of Xxxxxxx Xxxxx & Co.), and (c) all fees
and expenses incurred in connection with enforcing the provisions of,
and collecting amounts payable pursuant to, this Agreement, including
fees and expenses of legal counsel; provided that, Xxxxx will not be
entitled to reimbursement pursuant to this Agreement if the
transactions contemplated by the Investment Agreement are not
consummated as a result of a willful breach of the terms of that
agreement by Xxxxx. Such reimbursements will be due to Brera promptly
following any termination of the Investment Agreement for any reason
or, in the case of fees and expenses incurred thereafter, promptly upon
demand therefor. All amounts payable under this Agreement will be paid
in immediately available funds by wire transfer to an account or
accounts designated by the recipient of such amounts.
(4) All questions concerning the validity, meaning and effect
of this letter shall be determined in accordance with the laws of the
State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws
except to the extent necessary to permit this letter to be governed by
New York law as set forth above.
(5) EACH OF THE SIGNATORIES TO THIS LETTER HEREBY CONSENTS TO
THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR
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RELATING TO THIS LETTER, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY
BUSINESS OR OTHER DISPUTES BETWEEN THE SIGNATORIES (WHETHER SUCH
ACTIONS OR PROCEEDINGS ARE BASED IN STATUTE, TORT, CONTRACT OR
OTHERWISE), SHALL BE LITIGATED IN SUCH COURTS. EACH SIGNATORY (A)
CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS
FOR SUCH ACTIONS OR PROCEEDINGS, (B) AGREES THAT IT WILL NOT ATTEMPT TO
DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST
FOR LEAVE FROM ANY SUCH COURT, AND (C) AGREES THAT IT WILL NOT BRING
ANY SUCH ACTION OR PROCEEDING IN ANY COURT OTHER THAN SUCH COURTS. EACH
SIGNATORY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE AND IRREVOCABLE JURIS-
DICTION AND VENUE OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-
APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTIONS
OR PROCEEDINGS. A COPY OF ANY SERVICE OF PROCESS SERVED UPON THE
SIGNATORIES SHALL BE MAILED BY REGISTERED MAIL TO THE RESPECTIVE
SIGNATORY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE
OF PROCESS. IF ANY AGENT APPOINTED BY A SIGNATORY REFUSES TO ACCEPT
SERVICE, EACH SIGNATORY AGREES THAT SERVICE UPON THE APPROPRIATE
SIGNATORY BY REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF A SIGNATORY TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
(6) EACH OF THE SIGNATORIES TO THIS LETTER HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS LETTER OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LETTER AND THE RELATIONSHIP THAT
IS BEING ESTABLISHED. EACH SIGNATORY ALSO WAIVES ANY BOND OR SECU-
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RITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF
ANY OF THE OTHER SIGNATORIES. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS LETTER, INCLUDING
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH SIGNATORY
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN
EXECUTING THIS LETTER AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER
IN THEIR RELATED FUTURE DEALINGS. EACH SIGNATORY FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND
THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS LETTER OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS LETTER MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
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ACCORDINGLY, EACH SIGNATORY ACKNOWLEDGES THAT IT HAS WAIVED ITS RIGHT
TO SUE OR BE SUED IN TEXAS AND TO A JURY TRIAL. EACH SIGNATORY HAS
DISCUSSED THIS LETTER WITH ITS COUNSEL AND AGREES TO BE BOUND BY ITS
TERMS.
Very truly yours,
BRERA CLASSIC, LLC
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Authorized Signatory
Agreed and Accepted this
24th day of May, 1999.
CLASSIC COMMUNICATIONS, INC.
By: /s/ X. Xxxxxxx Xxxxxxx
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Name: X. Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
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