Common use of Conduct of the Companies’ Business Clause in Contracts

Conduct of the Companies’ Business. (a) Seller agrees that, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement, except as (1) required by applicable Law, (2) set forth in Section 4.1 of the Seller Disclosure Schedule or (3) consented to by Buyer in writing (which consent shall not be unreasonably withheld or delayed), Seller shall cause each of the Companies and their Subsidiaries to: (i) conduct their respective businesses and operations in the ordinary course of business and in accordance with applicable Law, except as expressly contemplated by this Agreement; (ii) use commercially reasonable efforts to keep available the services of their respective employees and maintain the relations and good will with suppliers, customers, affinity partners, creditors, employees, agents and others having business relationships with the Companies and their Subsidiaries; (iii) maintain the assets of the Companies and their Subsidiaries in good repair, order and condition, maintain insurance that is reasonable, in both scope and amount, in light of the risks attendant to the Business, replace in accordance with past practice inoperable or worn out assets with modern assets of comparable quality, invest in capital expenditures in the ordinary course of business and, in the event of a casualty, loss or damage to any of such assets prior to the Closing Date, repair or replace such assets, unless otherwise consented to by Buyer in writing; (iv) promptly notify Buyer in writing upon receipt of Knowledge that there has been an occurrence, or failure to occur, of any event, which occurrence or failure to occur has caused any representation or warranty of Seller that is contained in this Agreement to be untrue or inaccurate in any material respect at any time from the date of this Agreement to the Closing as if such representation and warranty were made at such time. (v) maintain, in all material respects, in good standing all permits, and authorization of any Governmental Entity related to the Business and any applications therefor; (vi) pay all Pre-Closing Tax Period Taxes that become due and payable during such period, or contest such Pre-Closing Tax Period Taxes in good faith with appropriate reserves held in accordance with GAAP; and (vii) spend as least 80% of the cumulative amounts set forth in Section 4.1(a)(vii) of the Seller Disclosure Schedule. (b) In addition, subject to the foregoing Section 4.1(a), Seller shall procure that each of the Companies and their Subsidiaries shall not: (i) authorize or effect any amendment to or change its Organizational Documents in any respect; (ii) except in connection with the Inter-Company Agreements, declare, set aside or pay any dividend or distribution on or in respect of any of its Equity Interests, or make any payment or transfer of consideration of any kind to any Affiliate or relative of any such Affiliate, other than salary and ordinary expense reimbursement to employees; (iii) issue or authorize the issuance of any Equity Interests or grant any options, warrants, or other rights to purchase or obtain any of its Equity Interests or issue, sell or otherwise dispose of any of its Equity Interests; (iv) issue any note, bond, or other debt security, or create, incur, assume or guarantee any Indebtedness or any capitalized lease obligation; (v) except in the ordinary course of business and other than the New Inter-Company Agreements, enter into any Contract, or amend, modify or waive any right under any existing Contract, in each case, with any Affiliate of the Companies; (vi) other than in the ordinary course of business, enter into, accelerate, terminate, modify or cancel or waive any material right under any Company Contract; (vii) except in the ordinary course of business, sell, lease, transfer or otherwise dispose of any of the material property or assets of the Business other than pursuant to existing Contracts or commitments; (viii) make any capital expenditure, or commitments therefor, in excess of $3,000,000; (ix) cancel, compromise or settle any material claim, or intentionally waive or release any material rights, of any of the Companies or their Subsidiaries, except in respect of any Excluded Litigation Matter; (x) adopt, enter into, amend, alter, or terminate any Company Plan or any employment agreement with any executive level employee or grant or agree to grant any increase in the wages, salary, bonus or other compensation, remuneration or benefits of any executive-level employee of any of the Companies or their Subsidiaries, except as required under applicable Law, any existing Company Plan or any existing employment agreement; (xi) except with respect to the elimination of any reserve relating exclusively to a matter to be assumed by Seller prior to Closing, make any changes to their accounting methods or principles, other than as may be required by Law, GAAP or generally accepted accounting principles in the jurisdictions of incorporation of the relevant Company or Subsidiary; (xii) make any material Tax election or changes to their Tax accounting methods or principles, other than as required by Law, or settle or compromise any material liability relating to Taxes of the Companies or their Subsidiaries; (xiii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit; (xiv) adopt any material change in the policies or practices of the Companies or their Subsidiaries with regard to the extension of discounts or credit to customers or collection of receivables from customers; and (xv) agree or otherwise commit to take any of the actions prohibited by the foregoing clauses (i) through (xiv). (c) Seller agrees, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement, (i) not to directly or indirectly sell or otherwise dispose of any of its Equity Interests in the Companies or any of their Subsidiaries; (ii) not to copy, reproduce or in any way retain or use, other than as expressly permitted by the Inter-Company Agreement, or New Inter- Company Agreements, any portion of the Company Intellectual Property (unless Seller has an independent right to such Company Licensed Intellectual Property) (including source code) in a manner that would infringe or otherwise violate the Company Intellectual Property; (iii) not to copy the source code of the Loyalty Open Logic Architecture platform; (iv) to assign to the Companies or the Subsidiaries Intellectual Property that is owned by the Seller and is used exclusively by the Companies and their Subsidiaries as of the Closing Date; and (v) to perform in all material respects its obligation under and as set forth in the Inter-Company Agreements.

Conduct of the Companies’ Business. Except as expressly provided herein, between the date hereof and the Closing, except with the prior written consent of PREIT, each Company shall (and the TRO Shareholders will cause each Company to): (a) Seller agrees thatcarry on its business in, during and only in, the period from usual, regular and ordinary course, consistent with past practice and the date of this Agreement until provisions hereof and in compliance with all applicable Laws, Authorizations and Contracts (including, without limitation, those required to be identified in the earlier of the Closing or the termination of this Agreement, except as (1) required by applicable Law, (2) set forth in Section 4.1 of the Seller TRO Disclosure Schedule or (3) consented to by Buyer in writing (which consent shall not be unreasonably withheld or delayedLetter), Seller shall cause each of the Companies preserve intact its present business organization, maintain its corporate existence and their Subsidiaries to: (i) conduct their respective businesses and operations in the ordinary course of business and in accordance with applicable Law, except as expressly contemplated by this Agreement; (ii) use commercially all reasonable efforts to keep available the services of their respective its present officers and employees and maintain the relations and good will to preserve its relationships with suppliersclients, customerscontractors, affinity partners, creditors, employees, agents and others having business relationships dealings with it to the Companies end that its goodwill and their Subsidiariesbusiness shall be unimpaired at the Closing; (iiib) pay and discharge all of its debts, liabilities and obligations as they become due; (c) keep in full force and effect insurance comparable in amount and scope of coverage to insurance now carried by it; (d) maintain its facilities and assets in the assets same state of the Companies and their Subsidiaries in good repair, order and conditioncondition as they were on the date hereof, reasonable wear and tear excepted; (e) maintain insurance its books of account and records in the usual, regular and ordinary manner and use best efforts to maintain in full force and effect all of its Authorizations; (f) maintain its S corporation status for federal and state income tax purposes (it being expressly understood that is reasonable, in both scope and amount, in light the consummation of the risks attendant TRO Recap and the TRO Consolidation immediately prior to Closing will, however, result in a termination of such status); (g) not enter into, assume or amend any Contract of a type described in Section 3.12(a)(iii); (h) not take any action, fail to take any action or permit to occur any event that would cause or constitute a breach of or inaccuracy in any representation or warranty of the TRO Shareholders set forth herein if made immediately after such event or at the Closing or that would have been required (or result in any situation that would be required) to be disclosed hereunder had such action or inaction been taken or failed to have occurred or had such event occurred prior to the Business, replace in accordance date hereof; (i) not increase salaries or other compensation of its officers or directors or any other employee other than normal year-end merit increases for employees (other than employees with past practice inoperable or worn out assets with modern assets of comparable quality, invest in capital expenditures which employment agreements are to be executed as contemplated herein) made in the ordinary course of such Company's business and, in the event of a casualty, loss or damage to any of such assets prior to the Closing Date, repair or replace such assets, unless otherwise consented to by Buyer in writingconsistent with past practice; (ivj) promptly notify Buyer not make any change in writing upon receipt its authorized or issued capital stock, grant any stock option or other right to purchase its shares of Knowledge that there has been an occurrencecapital stock or other securities, issue or failure make any commitment to occur, of any event, which occurrence or failure to occur has caused any representation or warranty of Seller that is contained in this Agreement to be untrue or inaccurate in any material respect at any time from the date of this Agreement to the Closing as if such representation and warranty were made at such time. (v) maintain, in all material respects, in good standing all permits, and authorization of any Governmental Entity related to the Business and any applications therefor; (vi) pay all Pre-Closing Tax Period Taxes that become due and payable during such period, or contest such Pre-Closing Tax Period Taxes in good faith with appropriate reserves held in accordance with GAAP; and (vii) spend as least 80% of the cumulative amounts set forth in Section 4.1(a)(vii) of the Seller Disclosure Schedule. (b) In addition, subject to the foregoing Section 4.1(a), Seller shall procure that each of the Companies and their Subsidiaries shall not: (i) authorize or effect any amendment to or change its Organizational Documents in any respect; (ii) except in connection with the Inter-Company Agreements, declare, set aside or pay any dividend or distribution on or in respect of issue any of its Equity Interestssecurities including any securities convertible into capital stock, grant any registration rights or purchase, redeem, retire or make any payment or transfer of consideration other acquisition of any kind to any Affiliate or relative shares of any such Affiliate, other than salary and ordinary expense reimbursement to employees; (iii) issue or authorize the issuance of any Equity Interests or grant any options, warrants, its capital stock or other rights to purchase or obtain any of its Equity Interests or issue, sell or otherwise dispose of any of its Equity Interests; securities (iv) issue any note, bond, or other debt security, or create, incur, assume or guarantee any Indebtedness or any capitalized lease obligation; (v) except in the ordinary course of business and other than the New Inter-Company Agreements, enter into any Contract, or amend, modify or waive any right under any existing Contractexcept, in each case, with any Affiliate of the Companies; (vi) other than in the ordinary course of business, enter into, accelerate, terminate, modify or cancel or waive any material right under any Company Contract; (vii) except in the ordinary course of business, sell, lease, transfer or otherwise dispose of any of the material property or assets of the Business other than pursuant to existing Contracts or commitments; (viii) make any capital expenditure, or commitments therefor, in excess of $3,000,000; (ix) cancel, compromise or settle any material claim, or intentionally waive or release any material rights, of any of the Companies or their Subsidiaries, except in respect of any Excluded Litigation Matter; (x) adopt, enter into, amend, alter, or terminate any Company Plan or any employment agreement with any executive level employee or grant or agree to grant any increase in the wages, salary, bonus or other compensation, remuneration or benefits of any executive-level employee of any of the Companies or their Subsidiaries, except as required under applicable Law, any existing Company Plan or any existing employment agreement; (xi) except with respect to the elimination of any reserve relating exclusively to a matter to be assumed by Seller prior to Closing, make any changes to their accounting methods or principles, other than as may be required by Law, GAAP or generally accepted accounting principles in connection with the jurisdictions of incorporation TRO Recap and as described in Sections 3.4(a) and 3.21 of the relevant Company or SubsidiaryTRO Disclosure Letter); (xiik) make any material Tax election not amend its certificate or changes to their Tax accounting methods articles of incorporation or principlesbylaws (or equivalent governing documents) (except, other than in each case, as may be required by Law, or settle or compromise any material liability relating to Taxes in connection with the TRO Recap and as described in Sections 3.4(a) and 3.21 of the Companies or their SubsidiariesTRO Disclosure Letter); (xiiil) acquire (by merger, consolidation not enter any Contract with any TRO Shareholder or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit; (xiv) adopt any material change in the policies or practices of the Companies or their Subsidiaries with regard to the extension of discounts or credit to customers or collection of receivables from customersTRO Affiliate; and (xvm) agree not enter into any agreement or otherwise commit understanding to take do or engage in any of the actions prohibited by the foregoing clauses (i) through (xiv)actions. (c) Seller agrees, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement, (i) not to directly or indirectly sell or otherwise dispose of any of its Equity Interests in the Companies or any of their Subsidiaries; (ii) not to copy, reproduce or in any way retain or use, other than as expressly permitted by the Inter-Company Agreement, or New Inter- Company Agreements, any portion of the Company Intellectual Property (unless Seller has an independent right to such Company Licensed Intellectual Property) (including source code) in a manner that would infringe or otherwise violate the Company Intellectual Property; (iii) not to copy the source code of the Loyalty Open Logic Architecture platform; (iv) to assign to the Companies or the Subsidiaries Intellectual Property that is owned by the Seller and is used exclusively by the Companies and their Subsidiaries as of the Closing Date; and (v) to perform in all material respects its obligation under and as set forth in the Inter-Company Agreements.

Conduct of the Companies’ Business. Between August 20, 1998 and the ---------------------------------- Closing, the Sellers and Stockholders shall cause the Companies to adhere to the following, unless otherwise agreed to by Xxxxx in writing: (a) Seller agrees thatoperate the Companies only in the usual, during regular and ordinary manner and, to the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreementextent consistent with such operation, except as (1) required by applicable Law, (2) set forth in Section 4.1 of the Seller Disclosure Schedule or (3) consented use their best efforts to by Buyer in writing (which consent shall not be unreasonably withheld or delayed), Seller shall cause each preserve their present business organization and goodwill of the Companies and intact, preserve their Subsidiaries to: (i) conduct their respective businesses and operations in the ordinary course of present relationships with persons having business and in accordance dealings with applicable Lawthem, except as expressly contemplated and, unless such termination is approved by this Agreement; (ii) use commercially reasonable efforts to Xxxxx, keep available the services of their respective employees and maintain each of the relations and good will with suppliers, customers, affinity partners, creditorsCompanies' present officers, employees, agents independent contractors and others having business relationships with the Companies and their Subsidiariesother service providers; (iiib) not amend the charter or by-laws of any of the Companies; (c) maintain the assets books and records of each of the Companies in the usual regular and their Subsidiaries ordinary manner, on a basis consistent with prior practice; (d) maintain all of the properties relating to each of the Companies in good customary repair, order and condition, reasonable wear and tear and damage by fire or unavoidable casualty excepted, and maintain insurance that is reasonable, in both scope and amount, in light upon all of the risks attendant properties relating to the Business, replace in accordance Companies and with past practice inoperable or worn out assets with modern assets respect to the conduct of comparable quality, invest in capital expenditures in the ordinary course of business and, in the event of a casualty, loss or damage to any Companies on such amounts and of such assets prior kinds comparable to that in effect on the Closing Date, repair or replace such assets, unless otherwise consented to by Buyer in writingdate hereof; and; (ive) promptly notify Buyer in writing upon receipt of Knowledge take no action that there has been an occurrence, or failure to occur, of any event, which occurrence or failure to occur has caused would make any representation or warranty of Seller that is contained in this Agreement to be Section 11 materially untrue or inaccurate in any material respect at any time from the date of this Agreement to the Closing as if such representation and warranty were made at such timeincorrect. (vf) maintain, in all material respects, in good standing all permits, protect and authorization preserve the Customer Database (as defined below) and customer records of any Governmental Entity related to the Business and any applications thereforCompanies; (vig) pay take reasonable measures to prevent interference in the Companies' businesses and the employment of valued employees, and to ensure the continued effectiveness after the Closing of all Pre-Closing Tax Period Taxes that become due and payable during such period, or contest such Pre-Closing Tax Period Taxes in good faith with appropriate reserves held in accordance with GAAP; andpermits from regulatory commissions; (viih) spend as least 80% make no change in the banking and safe deposit arrangements of the cumulative amounts set forth in Section 4.1(a)(vii) of the Seller Disclosure Schedule. (b) In addition, subject to the foregoing Section 4.1(a), Seller shall procure that each any of the Companies and their Subsidiaries shall not:without prior written notice to Xxxxx giving the details of such change; (i) authorize grant no powers of attorney, except as disclosed in writing to Xxxxx; (j) promptly notify Xxxxx of any material emergency or other material change in the condition (financial or otherwise), business, properties, assets, liabilities or prospects of any of the Companies, and of the commencement or threatened commencement of any litigation or governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated); (k) not issue, redeem or repurchase any shares of the capital stock, effect any amendment stock split, or otherwise change the capitalization of any of the Companies; (l) not grant, confer or award any option, warrant, conversion right or other right to acquire any shares of the capital stock of any of the Companies; (m) not adopt any new Plans (as defined below), including any severance provisions, stock option, stock benefit or change its Organizational Documents stock purchase plan, or amend any existing Plan in any respect; (iin) except in connection with not cancel, terminate, amend or modify (or otherwise impair the Inter-rights of the Companies under) any Company Agreements, declare, set aside or pay any dividend or distribution on or in respect of any of its Equity Interests, or make any payment or transfer of consideration of any kind to any Affiliate or relative of any such Affiliate, other than salary and ordinary expense reimbursement to employeesContracts (defined below); (iiio) issue or authorize the issuance of any Equity Interests or grant any optionsnot sell, warrants, or other rights to purchase or obtain any of its Equity Interests or issue, sell lease or otherwise dispose of any of its Equity Interests; (iv) issue the assets of any note, bond, or other debt security, or create, incur, assume or guarantee any Indebtedness or any capitalized lease obligation; (v) of the Companies except in the ordinary course of business and other than the New Inter-Company Agreements, enter into any Contract, or amend, modify or waive any right under any existing Contract, in each case, with any Affiliate of the Companiesbusiness; (vip) not make or revoke any tax election, including without limitation the election of any of the Companies to be taxed as an "S corporation" as defined in the Code, under federal law or under any comparable provision of state, local or foreign law; (q) not make any capital expenditure except in the ordinary course of business; (r) not incur any long-term indebtedness in addition to that outstanding on the date hereof, except in the ordinary course of business; (s) not incur or discharge any other indebtedness or liability, other than in the ordinary course of business, enter into, accelerate, terminate, modify or cancel or waive any material right under any Company Contract; (viit) not make any loans, advances or capital contributions to, or investments in, any other person, other than reasonable travel or other advances to employees in the ordinary course of business consistent with past practices; (u) not assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently, or otherwise) for the obligations of any other person or entity, except to endorse checks for collection or deposit in the ordinary course of business, sell, lease, transfer or otherwise dispose of any of the material property or assets of the Business other than pursuant to existing Contracts or commitments; (viiiv) not fail to make any capital expenditure, scheduled or commitments therefor, in excess of $3,000,000;other payment by its due date; and (ixw) cancel, compromise not declare or settle pay any material claim, dividend or intentionally waive or release distribution on any material rights, shares of the capital stock of any of the Companies or their Subsidiaries, (except in respect of any Excluded Litigation Matter; (x) adopt, enter into, amend, alter, or terminate any Company Plan or any employment agreement distributions for tax payments consistent with any executive level employee or grant or agree to grant any increase in the wages, salary, bonus or other compensation, remuneration or benefits of any executive-level employee of any of the Companies or their Subsidiaries, except as required under applicable Law, any existing Company Plan or any existing employment agreement; (xi) except with respect to the elimination of any reserve relating exclusively to a matter to be assumed by Seller prior to Closing, make any changes to their accounting methods or principles, other than as may be required by Law, GAAP or generally accepted accounting principles in the jurisdictions of incorporation of the relevant Company or Subsidiary; (xii) make any material Tax election or changes to their Tax accounting methods or principles, other than as required by Law, or settle or compromise any material liability relating to Taxes of the Companies or their Subsidiaries; (xiii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit; (xiv) adopt any material change in the policies or practices of the Companies or their Subsidiaries with regard to the extension of discounts or credit to customers or collection of receivables from customers; and (xv) agree or otherwise commit to take any of the actions prohibited by the foregoing clauses (i) through (xivpast practices). (c) Seller agrees, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement, (i) not to directly or indirectly sell or otherwise dispose of any of its Equity Interests in the Companies or any of their Subsidiaries; (ii) not to copy, reproduce or in any way retain or use, other than as expressly permitted by the Inter-Company Agreement, or New Inter- Company Agreements, any portion of the Company Intellectual Property (unless Seller has an independent right to such Company Licensed Intellectual Property) (including source code) in a manner that would infringe or otherwise violate the Company Intellectual Property; (iii) not to copy the source code of the Loyalty Open Logic Architecture platform; (iv) to assign to the Companies or the Subsidiaries Intellectual Property that is owned by the Seller and is used exclusively by the Companies and their Subsidiaries as of the Closing Date; and (v) to perform in all material respects its obligation under and as set forth in the Inter-Company Agreements.