July 23, 2007
EXHIBIT 99.12
July 23, 2007
To: Cloud Acquisition Corporation
Ladies and Gentlemen:
1. Reference is made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may
be amended, supplemented or otherwise modified from time to time, the “Merger Agreement”),
among Cloud Acquisition Corporation, a Delaware corporation (“Parent”), Cloud Merger
Corporation, a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”),
and Cumulus Media Inc., a Delaware corporation (“Cloud”), pursuant to which Merger Sub will
merge with and into Cloud with Cloud continuing as the surviving corporation (the
“Merger”). Capitalized terms used but not defined herein have the respective meanings
ascribed to them in the Merger Agreement. MLGPE Fund US Alternative, L.P., a Delaware limited
partnership is referred to herein as the “Investor.” This letter is being delivered to
Parent in connection with the execution of the Merger Agreement today by Xxxxxx and Merger Sub.
2. This letter confirms the commitment of the undersigned, subject to the conditions set forth in the
Merger Agreement to Parent’s and Merger Sub’s obligations to consummate the transactions
contemplated thereby having been satisfied or waived, to purchase, directly or indirectly through
one or more subsidiaries, equity securities of Parent (the “Subject Securities”)
immediately prior to the time Parent and Merger Sub become obligated under the Merger Agreement to
effect the consummation of the Merger for an aggregate purchase price equal to $286,000,000 (the
“Commitment”), solely for the purpose of funding, and to the extent necessary to fund,
(i) the Aggregate Merger Consideration (as defined in the Merger Agreement) pursuant to and
in accordance with the Merger Agreement and (ii) related expenses required to be paid by
Parent and Merger Sub under the Merger Agreement. The foregoing commitment of the undersigned to
purchase, directly or indirectly through one or more subsidiaries, the Subject Securities is
subject to the consummation of the Merger following the satisfaction or waiver of the conditions
set forth in the Merger Agreement to Parent’s and Merger Sub’s obligations to consummate the
transactions contemplated thereby, the terms of this letter, and the substantially contemporaneous
funding of the Debt Financing, and funding of the undersigned’s Commitment will occur
contemporaneously with the Closing of the Merger and the issuance to the undersigned of the Subject
Securities, provided that the undersigned shall not, under any circumstances, be obligated
to contribute to Parent more than the Commitment. The total amount to be funded
under this letter will be reduced in the event Parent does not require the full amount of the
Commitment.
3. The obligation of the undersigned to fund the Commitment will terminate automatically and
immediately upon the earliest to occur of (a) termination of the Merger Agreement in
accordance with its terms, (b) Cloud or any of its affiliates asserting in any litigation
or other proceeding any claim against the Investor, including under the
limited
guarantee of even
date herewith of the Investor (the “Limited Guarantee”), (c) any Person, other than
Parent (acting through its board of directors), seeking to enforce or cause Parent to enforce the
Commitment hereunder or any provisions of this letter and (d) payment in full by the
Investor of its Obligation (as defined in the Limited Guarantee) under the Limited Guarantee. Upon
any such termination of this letter, any obligations hereunder will terminate and none of the
parties hereto shall have any liability whatsoever to any other party, except for any liability
arising out of any breach hereof occurring prior to such termination.
4. The undersigned may assign all or a portion of its obligations to fund the Commitment in accordance
with the terms and conditions of the Interim Investors Agreement, of even date herewith, by and
among Parent, Investor, Cloud Holding Company, LLC, a Delaware limited liability company, Xxxxx
Xxxxxx Xx., Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxxxx Xx. (the “Interim
Investors Agreement”); provided, however, that, except to the extent otherwise
agreed to by Parent, any such assignment shall not relieve the undersigned of its obligations under
this letter.
5. This letter shall be binding on the undersigned solely for the benefit of the addressee, and
nothing set forth in this letter shall be construed to confer upon or give to any Person other than
the addressee any benefits, rights or remedies under or by reason of, or any rights to enforce or
cause the addressee to enforce, the Commitment or any provisions of this letter.
6. Notwithstanding anything that may be expressed or implied in this letter or any document or
instrument delivered contemporaneously herewith, and notwithstanding that the undersigned may be a
limited partnership, the addressee, by its acceptance of the benefits of this letter, covenants,
agrees and acknowledges that no Person other than the undersigned shall have any obligation
hereunder and that it has no rights of recovery against, and no recourse hereunder or under any
documents or instruments delivered in connection herewith shall be had against any Related Party of
the undersigned or any Related Party of any of such undersigned’s Related Parties, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute,
regulation or other applicable law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Related Party
of the undersigned or any Related Party of any of such undersigned’s Related Parties, as such, for
any obligations of the undersigned under this letter or any documents or instrument delivered in
connection herewith or for any claim based on, in respect of, or by reason of such obligation or
their creation. For the purposes of this paragraph 6, the terms “Related Party” and
“Related Parties” shall mean any and all former, current or future director, officer,
employee, agent, general or limited partner, manager, member, stockholder, affiliate or assignee of
a Person.
7. This letter may only be enforced by the addressee in its sole discretion; provided, however, no
party shall have any right to enforce this letter unless and until it becomes effective in
accordance with its terms. None of Cloud, Xxxxxx’s creditors or Merger Sub’s creditors shall have
any right to enforce this letter or to cause Parent to enforce this letter.
8. Concurrently with the execution and delivery of this letter, the undersigned is executing and
delivering to Cloud the Limited Guarantee related to performance by Parent of
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certain payment
obligations to Cloud under the Merger Agreement. Parent’s remedies against the undersigned under
the Limited Guarantee shall, and are intended to, be the sole and exclusive direct or indirect
remedies available to Cloud and its affiliates against the undersigned and any Related Party of any
of the foregoing in respect of any liabilities or obligations arising under, or in connection with,
the Merger Agreement, and the transactions contemplated thereby, including in the event Parent or
Merger Sub breaches its obligations under the Merger Agreement, whether or not any such breach is
caused by the undersigned’s breach of its obligations under this letter. Nothing in this letter,
express or implied, is intended to or shall confer on upon any Person, other than the addressee,
any right, benefit or remedy of any nature whatsoever under or by reason of this letter.
9. This letter shall be treated as confidential and is being provided to the addressee solely in
connection with the Merger. This letter may not be used, circulated, quoted or otherwise referred
to in any document, except with the written consent of the Investor. The undersigned acknowledges
that a copy of the Commitment is being provided to Cumulus Media Inc. pursuant to Section 4.04 of
the Merger Agreement.
10. This letter may be executed in counterparts and by facsimile, each of which, when so executed,
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
11. This letter shall be governed by and construed in accordance with the internal laws of the State of
New York (regardless of the laws that might otherwise govern under applicable principles or rules
of conflicts of law to the extent such principles or rules are not mandatorily applicable by
statute and would require the application of the laws of another jurisdiction). In addition, each
party (i) irrevocably and unconditionally consents to submit itself to the exclusive
jurisdiction of the United States District Court for the Southern District of New York or any court
of the State of New York located in such district for the purposes of any suit, action or other
proceeding between any of the parties hereto arising out of this letter, (ii) agrees that
it will not attempt to deny or defeat personal jurisdiction by motion or other request for leave
from such court, (iii) waives any claim of improper venue or any claim that the courts of
the State of New York are an inconvenient forum for any action, suit or proceeding between any of
the parties hereto arising out of this letter or any transaction contemplated hereby, (iv)
agrees that it will not bring any action relating to this letter in any court other than the
above-named courts and (v) to the fullest extent permitted by law, consents to service
being made through the notice procedures set forth in Section 8.07 of the Merger Agreement. EACH
PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LETTER, OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12. This letter may not be amended except by an instrument in writing signed by each of the parties
hereto.
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13. Except for the Interim Investors Agreement, this letter constitutes the sole agreement, and
supersedes all prior agreements, understandings and statements, written or oral, between the
Investor or any of their respective affiliates and any other Person with respect to the subject
matter hereof. The terms of this letter may not be modified or otherwise amended, or waived,
except pursuant to a written agreement signed by the parties hereto.
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| Very truly yours, | ||||
| MLGPE FUND US ALTERNATIVE, L.P. | ||||
| By: | MLGPE Delaware LLC, | |||
| its General Partner | ||||
| By: | /s/ Xxxxxx X. Xxx | |||
| Name: Xxxxxx X. Xxx | ||||
| Title: | ||||
| Accepted and Acknowledged: | ||||
| CLOUD ACQUISITION CORPORATION | ||||
By:
|
/s/ Xxxxx X. Xxxxxx, Xx. | |||
| Title: Chairman, President and Chief Executive Officer | ||||
