Common use of No Recourse to Debt Financing Sources Clause in Contracts

No Recourse to Debt Financing Sources. (a) Notwithstanding anything in this Agreement to the contrary, the Company (i) agrees on its behalf and on behalf of its Affiliates that none of the Debt Financing Sources shall have any liability or obligation to the Company and their respective Affiliates relating to this Agreement or any of the Transactions (including the Debt Financing), (ii) waives any rights or claims against any Debt Financing Source in connection with this Agreement (including any of the Transactions), any Debt Commitment Letter, any fee letters related thereto, the definitive agreements with respect thereto or the Debt Financing, whether at law or equity, in contract, in tort or otherwise and (iii) agrees not to, and shall not, (A) seek to enforce this Agreement against, make any claims whether at law or equity, in contract, in tort or otherwise, for breach of this Agreement, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources or (B) seek to enforce the commitment in respect of any Debt Financing against, make any claims for breach of commitments in respect of any Debt Financing against, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, or otherwise xxx, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources, for any reason in connection with commitments in respect of any Debt Financing or the obligations of the Debt Financing Sources thereunder, this Agreement, or any of the transactions contemplated by this Agreement or Debt Financing. (b) Notwithstanding anything in this Agreement or any of the agreements relating to the Financing to the contrary, and without limiting Section 9.12(a), each party hereto agrees, on behalf of itself and its Affiliates and Representatives, that all Actions, obligations, liabilities or causes of action (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate to (i) this Agreement or any other agreement referenced herein or the Transactions (including any financing obtained in connection with the Transactions), (ii) the negotiation, execution or performance of this Agreement or any other agreement referenced herein (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or such other agreement), (iii) any breach or violation of this Agreement or any other agreement referenced herein or (iv) any failure of the Transactions or any other agreement referenced herein (including any agreement in respect of financing obtained in connection with such transactions) to be consummated, in each case, may be made only against (and are those solely of) the persons that are expressly identified as a party to such agreement or the Guarantors solely as and to the extent specified, and in accordance with, and subject to the terms and conditions of, this Agreement or such agreement, as applicable.

No Recourse to Debt Financing Sources. (a) Notwithstanding anything in this Agreement to the contrary, the Company (i) agrees on its behalf and on behalf of its Affiliates that none of the Debt Financing Sources shall have any liability or obligation to the Company and their respective Affiliates relating to this Agreement or any of the Transactions (including the Debt Financing), (ii) waives any rights or claims against any Debt Financing Source in connection with this Agreement (including any of the Transactions), any the Debt Commitment Letter, any the fee letters letter related theretothereto (the “Debt Fee Letter”), the definitive agreements with respect thereto or the Debt Financing, whether at law or equity, in contract, in tort or otherwise and (iii) agrees not to, and shall not, (A) seek to enforce this Agreement against, make any claims whether at law or equity, in contract, in tort or otherwise, for breach of this Agreement, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources or (B) seek to enforce the commitment in respect of any Debt Financing against, make any claims for breach of commitments in respect of any Debt Financing against, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, or otherwise xxx, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources, for any reason in connection with commitments in respect of any Debt Financing or the obligations of the Debt Financing Sources thereunder, this Agreement, or any of the transactions contemplated by this Agreement or Debt Financing. (b) Notwithstanding anything in this Agreement or any of the agreements relating to the Financing to the contrary, and without limiting Section 9.12(a), each party hereto agrees, on behalf of itself and its Affiliates and Representatives, that all Actions, obligations, liabilities or causes of action (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate to (i) this Agreement or any other agreement referenced herein or the Transactions (including any financing obtained in connection with the Transactions), (ii) the negotiation, execution or performance of this Agreement or any other agreement referenced herein (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or such other agreement), (iii) any breach or violation of this Agreement or any other agreement referenced herein or (iv) any failure of the Transactions or any other agreement referenced herein (including any agreement in respect of financing obtained in connection with such transactions) to be consummated, in each case, may be made only against (and are those solely of) the persons that are expressly identified as a party to such agreement or the Guarantors solely as and to the extent specified, and in accordance with, and subject to the terms and conditions of, this Agreement or such agreement, as applicable.

No Recourse to Debt Financing Sources. (a) Notwithstanding anything in this Agreement to the contrarycontrary contained herein, and without limiting the generality of Section 5.10(a), Section 11.4, Section 11.8 and Section 11.9, each of the Sellers, the Company (i) agrees on its behalf Company, the Founders’ Representative and on behalf of its Affiliates that none of the Debt Financing Sources shall have any liability or obligation to the Company Representative and their respective Affiliates relating to this Agreement former, current or any of the Transactions future Affiliates, directors, managers, officers, employees, accountants, consultants, legal counsel, investment bankers, advisors, financing sources, and agents and other representatives and successors and assigns (including the Debt Financing)each, (iia “Waiving Party”) waives hereby waive any rights or claims against any Debt Financing Source and its former, current or future Affiliates, directors, managers, officers, employees, accountants, consultants, legal counsel, investment bankers, advisors, financing sources, and agents and other representatives (each, a “Debt Financing Source Party”) in connection with this Agreement (including any of Agreement, the Transactions)Financing, any Debt Alternate Financing, the Commitment Letter, any fee letters related thereto, commitment letter for any Alternate Financing or the definitive agreements with respect thereto documentation for the Financing or the Debt any Alternate Financing, whether at law or equity, in contract, in tort or otherwise otherwise, and (iii) each Waiving Party agrees not to, to commence (and shall not, (A) seek if commenced agrees to enforce this Agreement against, make any claims whether at law or equity, in contract, in tort or otherwise, for breach of this Agreement, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, any Persons (other than Parent or Merger Sub) that have committed to provide dismiss or otherwise enter into Contracts terminate) any Legal Proceeding against any Debt Financing Source Party in connection with this Agreement or any transaction contemplated hereby (including any Legal Proceeding relating to the Debt Financing, including any Alternate Financing, the Commitment Letter, any commitment letter for any Alternate Financing or the definitive documentation for the Financing or any Alternate Financing). In furtherance and not in limitation of the foregoing waiver, it is agreed that no Debt Financing Sources Source Party shall have any liability for any claims, losses, settlements, liabilities, damages, costs, expenses, fines or (B) seek penalties to enforce the commitment in respect of any Debt Financing against, make any claims for breach of commitments in respect of any Debt Financing against, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, or otherwise xxx, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts Waiving Party in connection with this Agreement or any transaction contemplated hereby (including any Legal Proceeding relating to the Debt Financing, including any Alternate Financing, the Debt Financing SourcesCommitment Letter, any commitment letter for any reason in connection with commitments in respect of any Debt Alternate Financing or the obligations of definitive documentation for the Debt Financing Sources thereunder, this Agreement, or any Alternate Financing). Nothing in this Section 11.13 shall in any way (i) expand the circumstances in which Buyer may be liable under this Agreement or as a result of the transactions contemplated by this Agreement or Debt Financing. hereby (b) Notwithstanding anything in this Agreement including as a result of the Financing or any of the agreements relating to the Financing to the contrary, and without limiting Section 9.12(a), each party hereto agrees, on behalf of itself and its Affiliates and Representatives, that all Actions, obligations, liabilities or causes of action (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate to (i) this Agreement or any other agreement referenced herein or the Transactions (including any financing obtained in connection with the TransactionsAlternate Financing), (ii) limit or qualify the negotiation, execution obligations and liabilities of the parties to the Commitment Letter to each other thereunder or performance of this Agreement or any other agreement referenced herein (including any representation or warranty made in, in connection with, therewith or as an inducement to, this Agreement or such other agreement), (iii) any breach limit or violation of this Agreement or any other agreement referenced herein or (iv) any failure qualify the obligations and liabilities of the Transactions or any other agreement referenced herein (including any agreement parties to the engagement letter between the Company and Xxxxx Fargo Securities, LLC, in respect of financing obtained its capacity as financial advisor to the Company in connection with such transactions) the transactions contemplated hereby, to be consummated, each other thereunder or in each case, may be made only against (and are those solely of) the persons that are expressly identified as a party to such agreement or the Guarantors solely as and to the extent specified, and in accordance with, and subject to the terms and conditions of, this Agreement or such agreement, as applicableconnection therewith.

No Recourse to Debt Financing Sources. (a) Notwithstanding anything in this Agreement Subject to the contraryrights of the parties to the Debt Commitment Letter and the Fee Letter related thereto under the terms thereof, the Company (i) agrees on its behalf and on behalf of its Affiliates that none of the Debt Financing Sources Company, any Subsidiary, any Seller or any Seller Related Person shall have any liability right, claim or obligation to the Company and their respective Affiliates relating to this Agreement or any of the Transactions (including the Debt Financing), (ii) waives any rights or claims against any Debt Financing Source in connection with this Agreement (including any of the Transactions), any Debt Commitment Letter, any fee letters related thereto, the definitive agreements with respect thereto or the Debt Financingrecourse whatsoever, whether at law or equity, in contract, in tort or otherwise otherwise, in connection with this Agreement, the Debt Financing or the transactions contemplated hereby or thereby, against the Debt Financing Sources and each such Person agrees not to commence (and, if commenced, agrees to dismiss or terminate) an legal proceeding against any Debt Financing Source in connection with this Agreement, the Debt Financing or the transactions contemplated hereby or thereby, (ii) the Debt Financing Sources shall not have any obligations or liabilities to the Company, any Subsidiary, any Seller or any Seller Related Person and all such obligations and liabilities, if any, are hereby irrevocably waived, and (iii) agrees the Debt Financing Sources shall not tobe liable to the Company, and shall notany Subsidiary, (A) seek to enforce this Agreement against, make any claims whether at law Seller or equity, in contract, in tort or otherwise, any Seller Related Person for breach of this Agreement, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative punitive or exemplary indirect damages or damages of a tortious nature) from, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources or (B) seek to enforce the commitment in respect of any Debt Financing against, make any claims for breach of commitments in respect of any Debt Financing against, or seek to recover monetary damages (including, for . For the avoidance of doubt, nothing in this Section 11.21 is intended to limit or modify any special, consequential, punitive, indirect, speculative obligations or exemplary damages or damages of a tortious nature) from, or otherwise xxx, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources, for any reason in connection with commitments in respect of any Debt Financing or the obligations of liabilities the Debt Financing Sources thereunder, this Agreement, or any of may have toward the transactions contemplated by this Agreement or Debt Financing. (b) Notwithstanding anything in this Agreement or any of the agreements relating other parties to the Financing to Debt Commitment Letter under the contrary, Debt Commitment Letter and without limiting Section 9.12(a), each party hereto agrees, on behalf of itself and its Affiliates and Representatives, that all Actions, obligations, liabilities or causes of action (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate to (i) this Agreement or any other agreement referenced herein or the Transactions (including any financing obtained in connection with the Transactions), (ii) the negotiation, execution or performance of this Agreement or any other agreement referenced herein (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or such other agreement), (iii) any breach or violation of this Agreement or any other agreement referenced herein or (iv) any failure of the Transactions or any other agreement referenced herein (including any agreement in respect of financing obtained in connection with such transactions) to be consummated, in each case, may be made only against (and are those solely of) the persons that are expressly identified as a party to such agreement or the Guarantors solely as and to the extent specified, and in accordance with, and subject to the terms and conditions of, this Agreement or such agreement, as applicableFee Letter related thereto.

No Recourse to Debt Financing Sources. (a) Notwithstanding anything in this Agreement to the contrarycontrary contained herein, the Company (i) agrees on its behalf and on behalf of itself and its Affiliates affiliates and its and their Representatives that none of the Debt Financing Sources shall have any liability or obligation to the Company or any of its affiliates or its and their respective Affiliates Representatives relating to this Agreement Agreement, any commitment letter, engagement letter or definitive financing document contemplated hereby or any of the Transactions transactions contemplated hereby or thereby (including with respect to the Debt Financing), (ii) waives . The Company and its controlled affiliates hereby waive any and all rights or claims against any Debt Financing Source in connection with this Agreement and causes of action (including any of the Transactions), any Debt Commitment Letter, any fee letters related thereto, the definitive agreements with respect thereto or the Debt Financing, whether at law or equitylaw, in contract, in tort or otherwise and (iii) agrees not to, and shall not, (A) seek to enforce this Agreement against, make any claims whether at law or equity, in contract, in tort or otherwise, for breach of this Agreement, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including against the Debt Financing Sources that may be based upon, arise out of or (B) seek relate to enforce the commitment in respect of any Debt Financing against, make any claims for breach of commitments in respect of any Debt Financing against, or seek to recover monetary damages (including, for the avoidance of doubt, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious nature) from, or otherwise xxx, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources, for any reason in connection with commitments in respect of any Debt Financing or the obligations of the Debt Financing Sources thereunder, this Agreement, any commitment letter, engagement letter or definitive financing document contemplated hereby or any of the transactions contemplated by this Agreement hereby or thereby (including the Debt Financing. (b) Notwithstanding anything Financing or the Debt Commitment Letter), and each of Company and its controlled affiliates agrees not to commence or support an action against any Financing Source in connection with this Agreement or any commitment letter, engagement letter or definitive financing document contemplated hereby or any of the agreements transactions contemplated hereby or thereby (including any action relating to the Debt Financing or the Debt Commitment Letter). In furtherance and not in limitation of the foregoing waiver, it is agreed that no Financing Source shall have any liability for any claims, losses, settlements, liabilities, damages, costs, expenses, fines or penalties to the contrary, and without limiting Section 9.12(a), each party hereto agrees, on behalf of itself and its Affiliates and Representatives, that all Actions, obligations, liabilities or causes of action (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil Company or any other theory or doctrine, including alter ego or otherwise) that may be based upon, of its controlled affiliates in respect of, arise under, out or by reason of, be connected with, or relate to (i) connection with this Agreement or any other agreement referenced herein or the Transactions (including any financing obtained in connection with the Transactions), (ii) . This Section 8.11 is intended to benefit and may be enforced by the negotiation, execution or performance of this Agreement or any other agreement referenced herein (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or such other agreement), (iii) any breach or violation of this Agreement or any other agreement referenced herein or (iv) any failure Financing Sources and shall be binding on all successors and assigns of the Transactions or any other agreement referenced herein (including any agreement in respect of financing obtained in connection with such transactions) to be consummated, in each case, may be made only against (and are those solely of) the persons that are expressly identified as a party to such agreement or the Guarantors solely as and to the extent specified, and in accordance with, and subject to the terms and conditions of, this Agreement or such agreement, as applicableCompany.

No Recourse to Debt Financing Sources. (a) Notwithstanding anything to the contrary contained in this Agreement to Agreement, each of the contrary, the Company parties hereto: (i) agrees on its behalf and on behalf that it will not bring or support any person in any action, suit, proceeding, cause of its Affiliates action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any lender that none is a party to the Debt Commitment Letter (any such lender, a “Debt Financing Source”) (which defined term for the purposes of this provision shall include the Debt Financing Sources shall have any liability or obligation to the Company and their respective Affiliates affiliates, equityholders, members, partners, officers, directors, employees, agents, advisors and representatives involved in the financing contemplated by any commitment letter executed by a Debt Financing Source) in any way relating to this Agreement or any of the Transactions (including transactions contemplated by this Agreement, including, but not limited to, any dispute arising out of or relating in any way to the Debt Financing)Commitment Letter or the performance thereof or the financings contemplated thereby, in any forum other than the federal and New York state courts located in the Borough of Manhattan within the city of New York; (ii) agrees that, except as specifically set forth in the Debt Commitment Letter, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any Debt Financing Source in any way relating to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the internal laws of the State of New York, without giving effect to principles or rules or conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction; and (iii) hereby irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation (whether in law or in equity, whether in contract or in tort or otherwise) directly or indirectly arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby. Notwithstanding anything to the contrary contained in this Agreement, (a) the Company, the Parent and Purchaser and their respective subsidiaries, affiliates, directors, officers, employees, agents, partners, managers, members or stockholders shall not have any rights or claims against any Debt Financing Source Source, in connection with any way relating to this Agreement (including or any of the Transactions)transactions contemplated by this Agreement, or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Commitment Letter, any fee letters related thereto, the definitive agreements with respect thereto Letter or the Debt Financingperformance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise and (iiib) agrees not tono Debt Financing Source shall have any liability (whether in contract, in tort or otherwise) to any of the Company, Parent and shall notPurchaser and their respective subsidiaries, (A) seek to enforce Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders for any obligations or liabilities of any party hereto under this Agreement againstor for any claim based on, make in respect of, or by reason of, the transactions contemplated hereby and thereby or in respect of any claims oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise. Notwithstanding anything to the contrary contained in this Agreement, for breach (i) all Debt Financing Sources are intended third-party beneficiaries of, and shall be entitled to the protections of this provision and (ii) nothing in this Section 10.14 shall limit any of the rights of the Purchaser or the Parent or any obligations or liabilities (to the extent owing to the Purchaser or the Parent) of any Debt Financing Source under the Debt Commitment Letter. The foregoing provisions may not be amended without the consent of the Debt Financing Sources. The Parent, the Purchaser and the Company have executed this Agreement as of the date set forth in the initial caption of this Agreement. ASENTINEL, LLC By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Authorized Signatory TAMS INC. By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Authorized Signatory TANGOE, INC. By: /s/ X.X. Xxx Name: X.X. Xxx Title: Chief Executive Officer Notwithstanding any other provisions of the Offer or the Agreement, the Purchaser shall not be required to accept for purchase or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, to pay for any shares of Company Common Stock tendered pursuant to the Offer, and may terminate or amend the Offer in accordance with (and to the extent permitted by) the terms of the Agreement, and may postpone the acceptance of, or seek payment for, any shares of Company Common Stock in accordance with (and to recover monetary damages the extent permitted by) the terms of the Agreement, if: (includinga) immediately prior to the expiration of the Offer (as extended in accordance with the Agreement), the number of shares of Company Common Stock validly tendered (other than any shares of Company Common Stock tendered by guaranteed delivery where actual delivery has not occurred) and not validly withdrawn, together with any shares of Company Common Stock beneficially owned by the Parent or any Affiliate of the Parent, does not equal at least one share more than 50% of Company Common Stock then outstanding determined on a fully-diluted basis (the “Minimum Condition”); (b) immediately prior to the expiration of the Offer (as extended in accordance with the Agreement), any waiting period (and any extensions thereof) and any approvals or clearances applicable to the Offer or the consummation of the Merger under the HSR Act shall not have expired, or been terminated or obtained, as applicable; (c) at any time on or after the date of the Agreement and before the expiration of the Offer (as extended in accordance with the Agreement), any of the following shall occur and be continuing: (i) any Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Order, executive order, stay, decree, judgment or injunction (preliminary or permanent) or statute, rule or regulation that is in effect and that has the effect making the Transactions, including the Offer and the Merger, illegal or otherwise prohibiting, preventing, restraining or materially delaying the consummation of the Transaction (other than the waiting period under the HSR Act or any other applicable Antitrust Laws); (ii) the representations and warranties of the Company contained in (A) Section 3.1 (Organization, Standing and Power), Section 3.2 (Capitalization), Section 3.3(a) (Subsidiaries), Section 3.4(a) (Authority) and Section 3.25 (Brokers) of the Agreement that (1) are not made as of a specific date are not true and correct as of the date hereof and as of the Acceptance Time, as though made at and as of such date and time, and (2) are made as of a specific date are not true and correct in all material respects as of such date, except if such failure with respect to Section 3.2 does not individually or in the aggregate increase the aggregate consideration required to be paid by the Parent and/or the Purchaser under Article I of the Agreement by more than a de minimis amount (in each case, without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties); and (B) the other representations and warranties of the Company in the Agreement not referenced in clause (A) that (1) are not made as of a specific date are not true and correct as of the date hereof and as of the Acceptance Time, as though made at and as of such date and time, and (2) are made as of a specific date are not true and correct as of such date, in each case, except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) is not reasonably likely to have a Company Material Adverse Effect; (iii) the Company shall have failed to perform in all material respects its covenants and obligations required to be performed or complied with by it under the Agreement at or prior to the Acceptance Time; (iv) there has been any event, change, development, circumstance, occurrence, effect, condition or state of facts involving the Company or any of its Subsidiaries, that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (v) in the event that the exercise of the Top-Up Option is necessary to ensure that the Parent, the Purchaser and their respective Affiliates own at least ninety percent (90%) of the outstanding shares of Company Common Stock immediately after the Offer Closing, (A) there shall exist under applicable Law (which, for the avoidance of doubt, shall not include any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious naturestock exchange rule) from, any Persons (other than Parent or Merger Sub) that have committed prohibition on Purchaser’s ability and right to provide or otherwise enter into Contracts in connection with exercise the Debt Financing, including the Debt Financing Sources Top-Up Option or (B) seek to enforce the commitment shares of Company Common Stock issuable upon exercise of the Top-Up Option together with the shares validly tendered in respect of any Debt Financing against, make any claims for breach of commitments in respect of any Debt Financing against, or seek to recover monetary damages (including, the Offer and not properly withdrawn are insufficient for the avoidance of doubtParent, any special, consequential, punitive, indirect, speculative or exemplary damages or damages of a tortious naturethe Purchaser and their respective Affiliates to reach at least ninety percent (90%) from, or otherwise xxx, any Persons (other than Parent or Merger Sub) that have committed to provide or otherwise enter into Contracts in connection with the Debt Financing, including the Debt Financing Sources, for any reason in connection with commitments in respect of any Debt Financing or the obligations of the Debt Financing Sources thereunder, this Agreement, or any outstanding shares of Common Stock immediately after the transactions contemplated by this Agreement or Debt Financing.Offer Closing (after giving effect to such exercise); (bvi) Notwithstanding anything in this Agreement the Parent and the Purchaser shall not have received a certificate executed by the Company’s Chief Executive Officer or any of the agreements relating to the Financing to the contrary, and without limiting Section 9.12(a), each party hereto agrees, another senior officer confirming on behalf of itself and its Affiliates and Representatives, the Company that all Actions, obligations, liabilities or causes the conditions set forth in clauses (c)(ii) through (c)(v) of action this Annex I have been duly satisfied; (whether vii) the Financing Proceeds Condition shall not have been satisfied; or (viii) the Agreement shall have been validly terminated in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing accordance with ARTICLE VIII of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate to (i) this Agreement or any other agreement referenced herein or a Conversion Event shall have occurred. The foregoing conditions are for the Transactions (including any financing obtained in connection with the Transactions)sole benefit of Parent and Purchaser and, (ii) the negotiation, execution or performance of this Agreement or any other agreement referenced herein (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or such other agreement), (iii) any breach or violation of this Agreement or any other agreement referenced herein or (iv) any failure of the Transactions or any other agreement referenced herein (including any agreement in respect of financing obtained in connection with such transactions) to be consummated, in each case, may be made only against (and are those solely of) the persons that are expressly identified as a party to such agreement or the Guarantors solely as and to the extent specified, and in accordance with, and subject to the terms and conditions ofof the Agreement and applicable Law, this Agreement may be waived by Parent and Purchaser, in whole or in part, at any time and from time to time (other than the Minimum Condition). The failure by Parent or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such agreementright and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Tangoe, Inc. (the “Corporation”), organized and existing under and by virtue of the General Corporation Law of the State of Delaware as applicable.the same exists or may hereafter be amended (the “DGCL”), incorporated on February 9, 2000 under the name TelecomRFQ, Inc., does hereby certify as follows: By unanimous written consent of the Board of Directors of the Corporation a resolution was duly adopted, pursuant to Section 242 and Section 245 of the DGCL, authorizing the amendment and restatement of the Restated Certificate of Incorporation of the Corporation (the “Restated Certificate of Incorporation”) and declaring said amendment and restatement to be advisable. The stockholders of the Corporation duly approved said proposed amendment and restatement in accordance with Section 242 and Section 245 of the DGCL. The Restated Certificate of Incorporation is hereby amended and restated in its entirety to read in full as follows: