(4)A direct wholly owned subsidiary of ACE and Tempo have agreed to and are working diligently to consummate a Business Combination that would, if consummated, require the Company or any successor thereto to pay the Current Termination Fee.
(5)In order to assist in facilitating the consummation of a Business Combination, Tempo has asked OCM to agree to (x) not seek payment of the Fees and Expenses until a Business Combination is consummated and (y) waive a portion of the Current Termination Fee that would otherwise be due upon consummation of the Business Combination.
In consideration of the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby further agree as follows:
(a)OCM hereby agrees (i) to forbear until the Outside Business Combination Date (as defined below) from exercising its rights and remedies under the Subscription Agreement, including its right to immediately receive payment in full of its Fees and Expenses, and (ii) to relinquish its right to receive the Current Termination Fee as set forth in Section 7(m)(iii) of the Subscription Agreement upon the closing of the Business Combination, in exchange for each of the following:
(A)At the earlier of (I) immediately following closing of the Business Combination between ACE and Tempo and (II) the Outside Business Combination Date, ACE and Tempo, on a joint and several basis, shall be required to pay to OCM, in cash, all fees and expenses of Oaktree as set forth in the updated invoices attached hereto as Annex A, as well as any other reasonable and documented fees and out-of-pocket expenses that Oaktree may incur following the date hereof in connection with enforcing its rights under the Subscription Agreement and this letter agreement, in full satisfaction of Tempo's obligation to promptly reimburse OCM for its Fees and Expenses pursuant to Section 7(e) of the Subscription Agreement.
(B)OCM shall be entitled to receive from ACE and Tempo, on a joint and several basis, in cash, an amount equal to 3.5% of the OCM Subscription Amount, which amount shall be earned by OCM immediately upon the execution of this letter agreement by each of the parties hereto and payable upon the closing of the Business Combination between ACE and Tempo; provided, that OCM agrees to reduce the amount of the Current Termination Fee to 0.6% of the OCM Subscription Amount if the closing of the Business Combination occurs on or before October 15, 2022 (such amount, the “Reduced Termination Fee”), which Reduced Termination Fee shall be due and payable no later than the earlier of (I) the 6-month anniversary of the date of the closing of the Business Combination and (II) the date on which either ACE or Tempo either commences or becomes subject to a case or proceeding seeking liquidation, reorganization, the appointment of a trustee, receiver, liquidator, custodian or other similar official, or any other relief under any bankruptcy, insolvency, receivership or other similar law now or hereafter in effect; provided, further, that such Reduced Termination Fee (together with all such other amounts owed to OCM hereunder, including fees and expenses) shall accrue and compound monthly on the 15th of every month beginning October 15, 2022 at a rate of 20% per annum until such amounts are paid.
(C)Notwithstanding the above, if the Business Combination has not been consummated prior to October 15, 2022, on the earliest of (I) the date on which the Business Combination Agreement is terminated, (II) the date on which either ACE or Tempo either commences or becomes subject to a case or proceeding seeking liquidation, reorganization, the appointment of a trustee, receiver, liquidator, custodian or other similar official, or any other relief under any bankruptcy, insolvency, receivership or other similar law now or hereafter in effect, and (III) June 15, 2023 (such earliest date, the “Outside Business Combination Date”), ACE and Tempo shall pay OCM the full 3.5% termination fee and all of its accrued and unpaid fees and
