Common use of Conduct of the Business by the Company Clause in Contracts

Conduct of the Business by the Company. From and after the date hereof to the Effective Time or the date on which this Agreement is terminated pursuant to Section 8.1, except as (i) contemplated by this Agreement, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent in writing (which consent shall not be unreasonably withheld or delayed), the Company shall and shall cause each of its Subsidiaries to (A) conduct its business in the ordinary course of business generally consistent with past practice, (B) comply with all applicable Laws and all Company Contracts (which for purposes of this Section 6.1 shall include any Contract that would be a Company Contract if existing on the date of this Agreement), and (C) use its commercially reasonable efforts to preserve intact its current business organization and keep available the services of its current officers and key employees. Without limiting the generality of the foregoing, during the period specified in the preceding sentence, except as (i) otherwise contemplated by this Agreement, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent in 38 writing (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall cause each of its Subsidiaries not to, take any of the following actions: (a) amend or propose to amend its Certificate of Incorporation, By-Laws or other organizational documents other than as permitted by clause (b) below; (b) except as provided in Section 6.3, adopt a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization; (c) (i) issue, sell, pledge, transfer or otherwise dispose of or encumber any shares of its capital stock, or other voting securities or any securities convertible into or exchangeable for any of the foregoing; (ii) grant or issue any options, warrants, securities or rights that are linked to the value of the Company Common Stock, or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; (iii) split, combine, subdivide or reclassify any shares of its capital stock; (iv) declare, set aside or pay any dividend or other distribution with respect to any shares of its capital stock; or (v) redeem, purchase or otherwise acquire any shares of its capital stock or any rights, warrants or options to acquire any such shares or effect any reduction in capital, except (with respect to clauses (i) through (v) above, but in all instances subject to the Aggregate Merger Consideration and the Aggregate Adjusted Options) for: (A) issuances of capital stock of the Company’s Subsidiaries to the Company or a wholly owned Subsidiary of the Company; (B) issuances of shares of Company Common Stock upon exercise of stock options, upon vesting of restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing; (C) in connection with or pursuant to Company Plans or the Company Stock Plan; (D) dividends or distributions by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company; (E) as contemplated by Section 3.3(a); or (F) as set forth in Section 6.1(c) of the Company Disclosure Letter; (d) (i) issue any note, bond or other debt security or right to acquire any debt security, repurchase, repay or incur or guarantee any Indebtedness other than (A) trade or standby letters of credit in the ordinary course of business; (B) in the ordinary course of business generally consistent with past practice; (C) pursuant to the Company Credit Agreement and other Contracts regarding other Indebtedness listed in the Company Disclosure Letter; (D) issuances, incurrences or guarantees by the Company to any wholly owned Subsidiary of the Company or by a Subsidiary to the Company or any other wholly owned Subsidiary of the Company; (E) commitments existing as of the date of this Agreement listed in the Company Disclosure Letter; (F) in connection with any equipment leases entered into in the ordinary course of business generally consistent with past practice; (G) guarantees of any Indebtedness permitted by the foregoing clauses (A) through (F) or (H) repayment of Indebtedness under the Company Credit Agreement or in accordance with the terms of Indebtedness outstanding on the date hereof or incurred after the date hereof in accordance with this Section 6.1(d); (e) (i) increase the benefits under any Company Plan; (ii) increase the compensation or benefits payable to, or enter into any employment agreements with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; (iii) grant any rights to severance, change in control or termination pay to, or enter into any severance or change in control agreement or arrangement with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Plan, except (with respect to clauses (i) through (iv) above): (A) as required by applicable Law or under the terms of this Agreement or any Company Plan or employment Contract, including under any existing severance agreements or arrangements in existence as of the date of this Agreement; (B) in connection with renewals of broad-based plans on substantially equivalent terms and other changes in broad based plans that do not increase the cost thereof in any material respect; (C) with respect to clauses (i) and (ii) above, with respect to employees in connection with promotions in the ordinary course of business generally consistent with past practice; or (D) in connection with hiring of an individual to replace any existing executive officer the base salary of which is not in excess of 150% of the base salary of the executive officer whom such individual replaces; 39 (i) enter into or consummate any transaction involving the acquisition (including by merger, consolidation or acquisition of the business, equity or voting interest or all or substantially all of the assets or other business combination) of any other Person; (ii) make any loans, advances (other than loans or advances to employees of or consultants to the Company in the ordinary course of business generally consistent with past practice) or capital contributions to, or investments in, any other Person other than to the Company or any of its existing Subsidiaries; (g) acquire, sell, lease or otherwise dispose of assets, except (i) pursuant to existing Contracts; (ii) inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice; (iii) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (iv) obsolete equipment and property no longer used in operation of Company’s business; (v) immaterial assets related to discontinued operations; (vi) with respect to the Company Owned Real Property; or (v) all acquisitions or dispositions of assets necessary with respect to the Company’s tenant in common programs, managed REIT’s, strategic funds or other similar programs managed or sponsored by the Company, which are entered into in the ordinary course of business consistent with past practice. (h) encumber any assets or property that are material to the Company and its Subsidiaries taken as a whole, except for Encumbrances (i) that would constitute a Permitted Encumbrance; (ii) related to any Indebtedness that may be incurred pursuant to Section 6.1(d); (iii) pursuant to existing Contracts; or (iv) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (i) other than in the ordinary course of business consistent with past practices make or commit to make any capital expenditures in excess of $1,000,000; (j) pay, discharge, satisfy or settle any Action or threatened Action involving a payment by the Company or any of its Subsidiaries other than any payment, discharge, satisfaction or settlement in the ordinary course of business consistent with past practice; (k) change any of its material accounting policies or practices, except as may be required by GAAP or by changes in GAAP; (i) except as required by Law, make, change or revoke any material election in respect of Taxes, or (ii) adopt or change any material accounting method in respect of Taxes, if such action would have an adverse effect on the Company; (m) fail to maintain continuously in full force and effect any current material insurance policy or a commercially reasonable substitute for such a material insurance policy for a company engaged in business similar to those of the Company and it’s Subsidiaries; (n) enter into any interest rate or currency swaps, caps, floors or option Contracts of the Company or its Subsidiaries or any other interest rate or currency risk management arrangement or foreign exchange Contracts of the Company or its Subsidiaries other than in the ordinary course of business consistent with past practice; (o) enter into, modify, amend or terminate any Company Contract or waive, release, compromise or assign any material rights or claims thereunder, other than in the ordinary course of business; or (p) agree or commit by Contract or otherwise to do any of the foregoing. Nothing contained in this Section 6.1 or anywhere else in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or the Company’s Subsidiaries’ operations prior to the Effective Time.

Conduct of the Business by the Company. (a) From and after the date hereof to of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is validly terminated in accordance with Section 9.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (y) as set forth in Section 5.1 of the Company Disclosure Schedule or (z) as otherwise contemplated, required or expressly permitted by this Agreement, unless Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, conduct the Business in the Ordinary Course of Business in all material respects and, to the extent consistent therewith, use its commercially reasonable efforts to (i) preserve intact in all material respects the Business and its organization, (ii) preserve the assets, rights and properties owned or used by the Business in good repair and condition, (iii) retain the services of its current officers, employees and consultants, including all Business Employees and (iv) preserve the goodwill and relationship of the Company and each of its Subsidiaries, or the Business, with customers, key employees, suppliers, licensors, licensees, lessors and other Persons with which it has material business dealings; provided, however, that no action or failure to take action by the Company or any of its Subsidiaries with respect to any matter specifically requiring Purchaser’s consent under any provision of Section 5.1(b) shall constitute a breach under this Section 5.1(a), unless such action or failure to take action would constitute a breach of such provision of Section 5.1(b). (b) Without limiting the generality of the foregoing (except as provided therein), from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.19.1, except (x) as prohibited or required by applicable Law or by any Governmental Entity, (iy) contemplated as set forth in Section 5.1 of the Company Disclosure Schedule or (z) as otherwise contemplated, required or permitted by this Agreement, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent unless Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed)withheld, the Company shall and shall cause each of its Subsidiaries to (A) conduct its business in the ordinary course of business generally consistent with past practice, (B) comply with all applicable Laws and all Company Contracts (which for purposes of this Section 6.1 shall include any Contract that would be a Company Contract if existing on the date of this Agreement), and (C) use its commercially reasonable efforts to preserve intact its current business organization and keep available the services of its current officers and key employees. Without limiting the generality of the foregoing, during the period specified in the preceding sentence, except as (i) otherwise contemplated by this Agreement, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent in 38 writing (which consent shall not be unreasonably withheld conditioned or delayed), the Company shall not, and shall cause each not permit any of its Subsidiaries not to, take any of the following actionsdirectly or indirectly: (ai) amend or propose or agree to amend its amend, in any material respect, the Company Certificate of Incorporation, By-Laws or other organizational documents other than as permitted by clause (b) belowCompany LLC Agreement; (bii) except as provided in Section 6.3(A) declare, adopt a plan set aside, make or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization pay any dividend or other reorganization; distribution (cwhether in cash, stock and/or property) (i) issue, sell, pledge, transfer or otherwise dispose in respect of or encumber any shares of its capital stockequity or set any record date therefor, except for (1) dividends or other voting securities or distributions by any securities convertible into or exchangeable for any of the foregoing; (ii) grant or issue any options, warrants, securities or rights that are linked to the value wholly-owned Subsidiary of the Company Common Stock, to the Company or to any other rights to purchase or obtain any shares of its capital stock or any wholly-owned Subsidiary of the foregoing Company or any “phantom” stock(2) tax distributions by the Company to its owner to enable it (or its direct or indirect owners) to pay U.S. federal and applicable state and local income tax with respect to the Company’s income, “phantom” stock rights(B) adjust, stock appreciation rights or stock-based performance units; (iii) split, combine, subdivide or reclassify any shares of its capital stock; equity or issue or propose or authorize the issuance of any other securities (ivincluding options, warrants or any similar security exercisable for, or convertible into, such other security) declarein respect of, set aside in lieu of, or pay any dividend or other distribution with respect to any shares of in substitution for, its capital stock; outstanding membership interests, or (vC) redeemrepurchase, purchase redeem or otherwise acquire any shares outstanding membership interests of the Company or any of its capital stock Subsidiaries, or any other equity interests or any rights, warrants or options to acquire any such shares interests; (iii) issue, sell, grant, dispose of, pledge or effect otherwise encumber, or authorize or propose the issuance, sale, grant, disposition or pledge or other encumbrance of, any reduction membership interests or other securities (including any options, warrants or any similar security exercisable for, or convertible into, such securities) or make any changes (by combination, merger, consolidation, reorganization, liquidation or otherwise) in capitalthe capital structure of the Company or any of its Subsidiaries; (iv) merge or consolidate with any other Person or acquire any equity interests in or material assets of any Person, except business or division thereof, or make any investment in excess of $500,000 in, any other Person, business or any division thereof (with respect to clauses (i) whether through the acquisition of stock, assets or otherwise); (v) abovesell, but in all instances transfer, assign, abandon, lease, sublease, license, guarantee, subject to a Lien, except for a Permitted Lien, or otherwise dispose of or encumber, or authorize the Aggregate Merger Consideration and sale, transfer, assignment, abandonment, lease, sublease, license, guarantee, Lien, or other disposition or encumbrance of any material properties, rights, assets, product lines or businesses of the Aggregate Adjusted OptionsCompany or any of its Subsidiaries, or otherwise material to the Business (including capital stock or other equity interests of any Subsidiary) for: except (A) issuances pursuant to Contracts in effect prior to the execution and delivery of this Agreement (true and complete copies of which have been provided to Purchaser prior to the date hereof) and renewals or permitted terminations thereof made in the Ordinary Course of Business, (B) any such transaction involving assets of the Company or any of its Subsidiaries not in excess of $2,000,000 or (C) sales, leases or licenses of inventory, equipment and other assets in the Ordinary Course of Business; (vi) (A) make any loans, advances or capital stock contributions to any other Person; (B) create, incur, redeem, repurchase, defease, prepay, or otherwise acquire or modify the terms of, any indebtedness for borrowed money in excess of $1,000,000 or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligation of any Person for borrowed money, except for, in the case of each of clause (A) and clause (B), (1) transactions among the Company and its wholly-owned Subsidiaries or among the Company’s Subsidiaries wholly-owned Subsidiaries, (2) any draw-down of funds under an outstanding line of credit agreement (true and complete copies of which have been provided to Purchaser prior to the date hereof) in the Ordinary Course of Business, (3) indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing indebtedness on no less favorable terms than such existing indebtedness (provided no such indebtedness provides for a prepayment penalty) or (4) indebtedness for borrowed money incurred pursuant to agreements in effect prior to the execution and delivery of this Agreement; (C) make or commit to make any capital expenditure or miscellaneous expenditure related to maintenance and additions in excess of $250,000 individually other than such expenditures which are set forth in the Company’s capital budget for fiscal 2017, a true and complete copy of which was made available to Purchaser prior to the date of this Agreement (provided, however, that the Company may make any unscheduled capital expenditure for immediate repair of failed systems or machinery necessary to maintain or keep a Restaurant open or as a result of natural disasters that have adversely affected a Restaurant or are reasonably anticipated to adversely affect a Restaurant unless such actions are taken); or (D) cancel any material debts of any Person to the Company or a wholly owned Subsidiary of the Company; (B) issuances of shares of Company Common Stock upon exercise of stock options, upon vesting of restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing; (C) in connection with or pursuant to Company Plans or the Company Stock Plan; (D) dividends or distributions by any Subsidiary of the Company to the Company or a wholly owned Subsidiary waive any claims or rights of the Company; (E) as contemplated by Section 3.3(a); or (F) as set forth in Section 6.1(c) of the Company Disclosure Lettermaterial value; (dvii) (i) issue any note, bond or other debt security or right to acquire any debt security, repurchase, repay or incur or guarantee any Indebtedness other than (A) trade or standby letters of credit in the ordinary course of business; (B) in the ordinary course of business generally consistent with past practice; (C) except as required pursuant to the any Company Credit Agreement and other Contracts regarding other Indebtedness listed Benefit Plan in the Company Disclosure Letter; (D) issuances, incurrences or guarantees by the Company to any wholly owned Subsidiary of the Company or by a Subsidiary to the Company or any other wholly owned Subsidiary of the Company; (E) commitments existing as of effect on the date of this Agreement listed in the Company Disclosure Letter; (F) in connection with any equipment leases entered into in the ordinary course of business generally consistent with past practice; (G) guarantees of any Indebtedness permitted by the foregoing clauses Agreement, (A) through (F) or (H) repayment of Indebtedness under the Company Credit Agreement or in accordance with the terms of Indebtedness outstanding on the date hereof or incurred after the date hereof in accordance with this Section 6.1(d); (e) (i) increase the compensation or other benefits under any Company Plan; payable or provided to the Company’s directors or officers, (iiB) except for the employee salary and bonus review process and related adjustments substantially as conducted each year and promotions in the Ordinary Course of Business, materially increase the compensation or benefits payable toor provided to the Company employees other than the Company’s officers, or (C) enter into any employment employment, change of control, severance or retention agreement with any employee of the Company (except for (1) an agreement with a non-officer employee who has been hired to replace a similarly situated non-officer employee who was party to such an agreement, (2) renewals or replacements of existing agreements withwith current non-officer employees upon expiration of the term of the applicable agreement on substantially the same terms as the previous agreement or (3) for severance agreements entered into with non-officer employees in the Ordinary Course of Business in connection with terminations of employment), (D) establish, adopt, enter into or amend any Collective Bargaining Agreement, Company Benefit Plan or any other plan, trust, fund, policy or arrangement for the benefit of any current or former directordirectors, officerofficers or employees or any of their dependents or beneficiaries, employee except as required to comply with Section 409A of the Code or consultant other applicable Law; provided, that a copy of any such amendment shall be provided to Purchaser at least five (5) Business Days prior to adoption thereof for Purchaser to review and approve (such approval not to be unreasonably withheld or delayed), (E) hire or offer employment to any individual who would be an officer of the Company or any of its Subsidiaries, or terminate the employment of any officer of the Company or any of its Subsidiaries, or (F) except in the Ordinary Course of Business, hire or offer employment to any individual (other than any individual who would be an officer of the Company or its Subsidiaries; (iii) grant any rights to severance, change in control or termination pay to), or enter into terminate the employment of any severance Business Employee (other than the Company’s or change its Subsidiaries’ officers); (viii) settle, release, waive or compromise (A) any pending or threatened material claim for an amount in control agreement excess of the amount of the specifically corresponding reserve established on the combined balance sheet of the Business as reflected in the Interim Balance Sheet plus any applicable third party insurance proceeds, or arrangement with, (B) any current pending or former director, officer, employee or consultant threatened material claim that entails (x) the incurrence of any obligation (other than the payment of money) to be performed by the Company or its Subsidiaries; Subsidiaries following the Effective Time that would be, individually or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Plan, except (with respect to clauses (i) through (iv) above): (A) as required by applicable Law or under the terms of this Agreement or any Company Plan or employment Contract, including under any existing severance agreements or arrangements in existence as of the date of this Agreement; (B) in connection with renewals of broad-based plans on substantially equivalent terms and other changes in broad based plans that do not increase the cost thereof in any material respect; (C) with respect to clauses (i) and (ii) above, with respect to employees in connection with promotions in the ordinary course of business generally consistent with past practice; or (D) in connection with hiring of an individual to replace any existing executive officer the base salary of which is not in excess of 150% of the base salary of the executive officer whom such individual replaces; 39 (i) enter into or consummate any transaction involving the acquisition (including by mergeraggregate, consolidation or acquisition of the business, equity or voting interest or all or substantially all of the assets or other business combination) of any other Person; (ii) make any loans, advances (other than loans or advances to employees of or consultants to the Company in the ordinary course of business generally consistent with past practice) or capital contributions to, or investments in, any other Person other than to the Company or any of its existing Subsidiaries; (g) acquire, sell, lease or otherwise dispose of assets, except (i) pursuant to existing Contracts; (ii) inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice; (iii) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (iv) obsolete equipment and property no longer used in operation of Company’s business; (v) immaterial assets related to discontinued operations; (vi) with respect to the Company Owned Real Property; or (v) all acquisitions or dispositions of assets necessary with respect to the Company’s tenant in common programs, managed REIT’s, strategic funds or other similar programs managed or sponsored by the Company, which are entered into in the ordinary course of business consistent with past practice. (h) encumber any assets or property that are material to the Company and its Subsidiaries taken as a whole, except for Encumbrances or (iy) obligations that would constitute a Permitted Encumbrance; (ii) related to impose any Indebtedness that may be incurred pursuant to Section 6.1(d); (iii) pursuant to existing Contracts; material restrictions on the Business or (iv) pursuant to operations of the Company or any of its Subsidiaries, except as already required by any Company Tenant Leases whether now existing or entered into after Material Contract in effect prior to the execution and delivery of this Agreement (a true and complete copy of which was provided to Parent prior to the date hereof hereof) in the ordinary course Ordinary Course of business generally consistent with past practiceBusiness; (iix) (A) enter into a Contract that involves payments to or from the Company or any of its Subsidiaries in excess of $500,000 or that would otherwise constitute a Company Material Contract hereunder had it been effective as of the date of this Agreement, (B) modify, amend or terminate any such Contract or any Company Material Contract or Real Property Lease, in each case in a manner that would be material and adverse to the Business, (C) waive, delay the exercise of, release or assign any material rights or claims under any Company Material Contract or Real Property Lease outside the Ordinary Course of Business, (D) enter into any Contract or Real Property Lease which contains a change of control or similar provision that would require a payment to the other party or parties thereto in connection with the Transactions (including in combination with any other event or circumstance), or (E) enter into, terminate or amend any Company Material Contract for the purchase of inventory other than a Contract that provides for the purchase of inventory for immediate use or consumption in the Ordinary Course of Business; (x) enter into or amend in any material manner any Contract, agreement or commitment (A) with any former or present director, officer or employee of the Company or any of its Subsidiaries or any Business Employee, or (B) with any Affiliate or associate (as defined under the Exchange Act) of any of the foregoing Persons, in each case, except to the extent permitted under paragraph (vii) above; (xi) sell, assign, convey, abandon, encumber, transfer, license or otherwise dispose of, or otherwise extend, amend or modify, any rights to any Intellectual Property material or necessary to carry on the Business (other than license to the Company’s Subsidiaries); (xii) alter or amend in any material respect any existing accounting methods, principles or practices, except as may be required by (or, in the reasonable good faith judgment of the Company, advisable under) GAAP or applicable Law; (xiii) make or change any material Tax election, change (or make a request to any Taxing Authority to change) any material aspect of its method of accounting for Tax purposes, or amend any income or other material Tax Return; (xiv) settle or compromise any material Tax claim or assessment, or enter into any closing agreement with any Taxing Authority; (xv) propose, adopt or enter into a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, except as contemplated by this Agreement; (xvi) intentionally defer the payment of any accounts payable beyond the date such payable is due without penalty, except where any such amount payable is being disputed in good faith; (xvii) permit any Business Employee or other Person to remove any material Company Assets or assets material to the Business from the corporate office, warehouses, Restaurants of the Company or any of its Subsidiaries’ facilities other than in connection with the performance of employment responsibilities in the Ordinary Course of Business; (xviii) (a) issue any coupons or complimentary rights for dining other than in the ordinary course Ordinary Course of business consistent with past practices make Business or commit to make (b) sell any capital expenditures in excess coupons or gift certificates at less than eighty percent (80%) of $1,000,000fair value; (jxix) paymaterially increase or decrease the average restaurant, discharge, satisfy corporate or settle any Action or threatened Action involving a payment by warehouse facility inventory of the Company or any of its Subsidiaries other than any payment, discharge, satisfaction or settlement in the ordinary course Ordinary Course of business consistent with past practiceBusiness or otherwise due to seasonality; (k) change any of its material accounting policies or practices, except as may be required by GAAP or by changes in GAAP; (i) except as required by Law, make, change or revoke any material election in respect of Taxes, or (ii) adopt or change any material accounting method in respect of Taxes, if such action would have an adverse effect on the Company; (mxx) fail to maintain continuously in full force and effect any current material insurance policy or a commercially reasonable substitute for such a material insurance policy for a company engaged in business similar to those of policies covering the Company and it’s Subsidiaries; (n) enter into any interest rate or currency swapsBusiness, caps, floors or option Contracts of the Company or its Subsidiaries or any other interest rate or currency risk management arrangement or foreign exchange Contracts of the Company or its Subsidiaries other than and their respective properties, assets and businesses in the ordinary course of business a form and amount consistent with past practicepractice in all material respects; (oxxi) change its fiscal year; (xxii) enter into any new line of business outside of its existing business; (xxiii) implement or announce any material reductions in labor force, mass lay-offs or plant closings, early retirement programs, or new severance programs or policies concerning any Business Employees (excluding routine employee terminations or severance as determined in the sole discretion of the Company); (xxiv) enter into any “non-compete,” exclusivity, non-solicitation or similar agreement that would restrict, in any material respect, the businesses or operations of the Company, the Surviving Company or any of their Subsidiaries or that would in any way restrict, in any material respect, the businesses or operations of Parent or its other Affiliates, or take any action that may impose new or additional regulatory requirements on Parent or any of its Affiliates; (xxv) enter into, modifyrenew or modify any indemnification agreement with any indemnified Person, amend or terminate except for any Company agreement to provide indemnification in connection with any Contract or waive, release, compromise or assign any material rights or claims thereunder, to purchase inventory and other than products for immediate consumption in the ordinary course Ordinary Course of businessBusiness and that is not material to the Business; or (pxxvi) agree authorize or commit by Contract or otherwise agree to do take any of the foregoing. Nothing contained in this Section 6.1 or anywhere else in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or the Company’s Subsidiaries’ operations prior to the Effective Timeforegoing actions.

Conduct of the Business by the Company. From (a) Except (i) as set forth in the Company Disclosure Schedule; (ii) as permitted, contemplated or required by this Agreement or any of the Related Documents; (iii) as the Company or any of its Subsidiaries may determine may be required or reasonably necessary in response to any Pandemic Measure or otherwise to protect the health and after safety of the date hereof employees of the Company or any Subsidiary of the Company in connection with any Pandemic; provided that, if reasonably practicable, the Company shall (x) give Parent reasonable advance notice of such actions or omissions, and (y) consider in good faith Parent’s comments in connection therewith; (iv) as required or prohibited by Law, the terms of any Contract (including any Employee Benefit Plan) to which the Effective Time Company or its Subsidiaries (or any of their assets) are bound that has been made available to Parent or any of its representatives; or (v) subject to Law, with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed); provided that the consent of Parent shall be deemed to have been given if Parent does not object in writing within five (5) Business Days from the date on which the Company’s written request for such consent is delivered to Parent in accordance with Section 11.7, from the date of this Agreement is terminated pursuant to Section 8.1, except as (i) contemplated by this Agreement, (ii) listed in Section 6.1 until the earlier of the Company Disclosure Letter Closing or (iii) consented to by Parent the termination of this Agreement in writing (which consent shall not be unreasonably withheld or delayed)accordance with its terms, the Company shall shall, and shall cause each of its Subsidiaries to to, conduct the business of the Company and its Subsidiaries (Ataken as a whole) conduct its business in the ordinary course Ordinary Course of business generally consistent with past practice, (B) comply with all applicable Laws Business and all Company Contracts (which for purposes of this Section 6.1 shall include any Contract that would be a Company Contract if existing on the date of this Agreement), and (C) use its commercially reasonable efforts to preserve substantially intact its current the business organization and keep available the services of its current officers and key employees. Without limiting the generality of the foregoingCompany and its Subsidiaries (as a whole) as conducted on the date hereof; provided, during however, that no action or failure to take action with respect to matters specifically addressed by any of the period specified in the preceding sentence, except as provisions of Section 6.3(b) shall constitute a breach under this Section 6.3(a) unless such action or failure to take action would constitute a breach of such provision of Section 6.3(b). (b) Except (i) otherwise contemplated by this Agreement, as set forth in the Company Disclosure Schedule; (ii) listed as contemplated or required by this Agreement or any of the Related Documents; (iii) as the Company or any of its Subsidiaries may determine is required or reasonably necessary in Section 6.1 response to any Pandemic Measure or otherwise to protect the health and safety of the employees of the Company Disclosure Letter or any Subsidiary of the Company in connection with any Pandemic; provided that the Company shall seek Parent’s consent for any such action or omission; provided, further that Parent’s consent shall be deemed to have been given if Parent does not object in writing within three (3) Business Days from the date on which the Company’s written request for such consent is delivered to Parent in accordance with Section 11.7 (such consent, a “Pandemic Waiver”); (iv) as required or prohibited by Law, the terms of any Contract (including any Employee Benefit Plan) to which the Company or its Subsidiaries (or any of their assets) are bound that has been made available to Parent or any of its representatives or (iiiiv) consented to by with the prior written consent of Parent in 38 writing (which consent shall not be unreasonably withheld withheld, conditioned or delayed); provided that the consent of Parent shall be deemed to have been given if Parent does not object in writing within five Business Days from the date on which the Company’s written request for such consent is delivered to Parent in accordance with Section 11.7, from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause each of its Subsidiaries not to, take any of the following actions: (a) amend or propose to amend its Certificate of Incorporation, By-Laws or other organizational documents other than as permitted by clause (b) below; (b) except as provided in Section 6.3, adopt a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization; (c) (i) issue, transfer, deliver, sell, grant, pledge, transfer encumber or otherwise dispose of any (A) shares of capital stock or encumber other equity interests of the Company or any of its Subsidiaries, other than any shares of its capital stock, stock issued upon the exercise of vested options granted pursuant to the Stock Option Plan (and set forth in the Company Disclosure Schedule) to acquire any capital stock or other voting securities or any securities convertible into or exchangeable for any of the foregoing; (ii) grant or issue any options, warrants, securities or rights that are linked to the value equity interests of the Company Common Stockor any of its Subsidiaries, or (B) warrants, calls, options or other rights to purchase or obtain acquire any shares of its capital stock or other equity interests of the Company or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; its Subsidiaries; (iiiii) (A) split, combine, subdivide or reclassify any shares of its capital stockstock or other equity interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock or other equity interests or (B) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or other equity interests of the Company or any of its Subsidiaries, other than the exercise of any call rights or compliance with put obligations with respect to any such equity securities in accordance with the terms of agreements governing such call rights or put obligations as in existence on the date of this Agreement and set forth on Section 6.3(b)(ii) of the Company Disclosure Schedule and the withholding of Taxes in connection therewith; (iii) enter into, agree to enter into or effect any merger or consolidation with any Person, or acquire any corporation, entity, business, material assets (other than Retail Installment Sale Contracts from Dealers in accordance with Section 6.3(b)(xiv)) or the securities of any other Person or make any material investment in any Person; (iv) amend the certificate of incorporation, bylaws or comparable organizational or governing documents of the Company or amend, in any material respect, the certificate of incorporation, bylaws or comparable organizational or governing documents of any of the Company’s Subsidiaries; (v) (A) increase the compensation or benefits payable to, or pay or grant any bonus or equity award to, any current or former employee, director or other individual service provider of the Company or any of its Subsidiaries, except for increases in base compensation in the ordinary course consistent with past practice to any employee or other individual service provider whose annual base compensation is less than $150,000; (ivB) accelerate the time of payment or vesting of any compensation or benefits payable to any current or former employee, director or other individual service provider of the Company or any of its Subsidiaries; or (C) amend, adopt or terminate any Employee Benefit Plan any plan, agreement or arrangement that would be an Employee Benefit Plan if in effect on the date hereof, other than as required by the terms of any Employee Benefit Plan; or (D) hire any employee or terminate (other than for cause) the employment of any employee or other individual service provider of the Company or any of its Subsidiaries other than such hiring and terminations performed in the ordinary course consistent with past practice with respect to any employee or other individual service provider whose annual base compensation is less than $150,000; (vi) make or authorize any capital expenditures in excess of the aggregate amount set forth in the budget of the Company and its Subsidiaries for the applicable fiscal year or remaining portion thereof in which such expenditures are made, which budget is set forth in Section 6.3(b)(vi) of the Company Disclosure Schedule; (vii) enter into, materially modify or materially amend, extend or terminate, or waive, release or assign any material rights or claims under, any Material Contract (or Contract that would have been a Material Contract if entered into prior to the date of this Agreement), in each case, other than (A) in the Ordinary Course of Business or (B) entering into any Material Contract providing for the terms of any action otherwise permitted by this Section 6.3; (viii) change its present accounting methods, principles, policies or practices (including with respect to loan loss reserves), except as may be required by a change in GAAP (or interpretations thereof); (ix) except as required by applicable Tax Law, make, change or revoke any Tax election, settle or compromise any Tax claim or liability, change any method of accounting or annual accounting period for Tax purposes, enter into any closing agreement, file any amended Tax Return, surrender any claim for a refund or assessment of Taxes, request any ruling with respect to Taxes, or waive or extend the statute of limitations in respect of any Taxes; (x) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person (other than any Subsidiary of the Company), or issue or sell any debt securities or other rights to acquire any debt securities of the Company or any of its Subsidiaries, in each case other than (A) any securitization entered into in accordance with the terms of this Agreement, (B) indebtedness incurred in the Ordinary Course of Business under the Company’s existing warehouse lines of credit or (C) other indebtedness incurred by the Company or any of its Subsidiaries in an aggregate amount not to exceed $10,000,000 (so long as such indebtedness (other than warehouse lines of credit) contemplated by this clause (C) is fully taken into account in the Closing Book Value and can be repaid at and after the Closing with no prepayment penalties and with all Liens securing such indebtedness released); (xi) settle or compromise any litigation, or release, dismiss or otherwise dispose of any claim of the Company or any of its Subsidiaries, other than (A) settlements or compromises of litigation or releases, dismissals or dispositions of claims that (1) involve the payment of monetary damages (excluding monetary damages that are covered by the Company’s insurance policies) in an amount not in excess of $500,000 individually or $2,000,000 in the aggregate by the Company or any of its Subsidiaries and (2) do not impose material restrictions on the business or operations of the Company and its Subsidiaries, taken as whole, and (B) settlements or compromises of litigation or releases of claims with respect to which an insurer (but neither the Company nor any of its Subsidiaries) has the right to control the decision to settle; (xii) except in relation to Liens to secure indebtedness for borrowed money, sell, lease (as lessor), license, mortgage, sell and leaseback or otherwise subject to any Lien (other than Permitted Liens), allow to lapse or expire, or otherwise dispose of any material properties, rights or assets or any material interests therein other than (A) any sale of any delinquent or charged-off Retail Installment Sale Contracts in the Ordinary Course of Business; (B) pursuant to Contracts in existence on the date of this Agreement and set forth on Section 6.3(b)(xii) of the Company Disclosure Schedule; (C) any securitization trust residual interests; or (D) sales of Retail Installment Sale Contracts pursuant to transactions between the Company, on the one hand, and any of its wholly-owned Subsidiaries, on the other hand, or between wholly-owned Subsidiaries of the Company; (xiii) assign, transfer, cancel, fail to use commercially reasonable efforts to renew or fail to use commercially reasonable efforts to extend any material permit or other License, in each case, that is required for the Company and its Subsidiaries to operate their business as of such time and is not replaced or for which no waiver or exception exists; (A) materially change the Company’s and its Subsidiaries’ underwriting, credit and collection policies in effect as of the date of this Agreement, and (B) modify, settle, waive, collect or enforce any Retail Installment Sale Contracts (whether held by the Company or Specified Entity) in any manner other than in the Ordinary Course of Business in accordance with its underwriting, credit and collection policies in effect on the date of this Agreement (or fail to modify, settle, waive, collect or enforce any such Retail Installment Sale Contracts in the Ordinary Course of Business as required or provided for by such policies); (xv) declare, set aside or pay any dividend or other make any distribution with respect to any shares of its capital stock; or (v) redeemequity securities, purchase or otherwise acquire any shares of its capital stock or any rights, warrants or options to acquire any such shares or effect any reduction in capital, except (with respect to clauses (i) through (v) above, but in all instances subject to the Aggregate Merger Consideration and the Aggregate Adjusted Options) for: (A) issuances of capital stock of the Company’s other than cash dividends from Subsidiaries to the Company or a wholly owned Subsidiary of the Company; (B) issuances of shares of Company Common Stock upon exercise of stock options, upon vesting of restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing; (C) in connection with or pursuant to Company Plans or the Company Stock Plan; (D) dividends or distributions by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company; (E) as contemplated by Section 3.3(a); or (F) as set forth in Section 6.1(c) of the Company Disclosure Letteranother Subsidiary; (d) (i) issue any note, bond or other debt security or right to acquire any debt security, repurchase, repay or incur or guarantee any Indebtedness other than (A) trade or standby letters of credit in the ordinary course of business; (B) in the ordinary course of business generally consistent with past practice; (C) pursuant to the Company Credit Agreement and other Contracts regarding other Indebtedness listed in the Company Disclosure Letter; (D) issuances, incurrences or guarantees by the Company to any wholly owned Subsidiary of the Company or by a Subsidiary to the Company or any other wholly owned Subsidiary of the Company; (E) commitments existing as of the date of this Agreement listed in the Company Disclosure Letter; (F) in connection with any equipment leases entered into in the ordinary course of business generally consistent with past practice; (G) guarantees of any Indebtedness permitted by the foregoing clauses (A) through (F) or (H) repayment of Indebtedness under the Company Credit Agreement or in accordance with the terms of Indebtedness outstanding on the date hereof or incurred after the date hereof in accordance with this Section 6.1(d); (e) (i) increase the benefits under any Company Plan; (ii) increase the compensation or benefits payable to, or enter into any employment agreements with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; (iii) grant any rights to severance, change in control or termination pay to, or enter into any severance or change in control agreement or arrangement with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Plan, except (with respect to clauses (i) through (iv) above): (A) as required by applicable Law or under the terms of this Agreement or any Company Plan or employment Contract, including under any existing severance agreements or arrangements in existence as of the date of this Agreement; (B) in connection with renewals of broad-based plans on substantially equivalent terms and other changes in broad based plans that do not increase the cost thereof in any material respect; (C) with respect to clauses (i) and (ii) above, with respect to employees in connection with promotions in the ordinary course of business generally consistent with past practice; or (D) in connection with hiring of an individual to replace any existing executive officer the base salary of which is not in excess of 150% of the base salary of the executive officer whom such individual replaces; 39 (i) enter into or consummate any transaction involving the acquisition (including by merger, consolidation or acquisition of the business, equity or voting interest or all or substantially all of the assets or other business combination) of any other Person; (iixvi) make any loans, advances (other than loans or advances to employees of or consultants to the Company in the ordinary course of business generally consistent with past practice) or capital contributions to, or investments in, any other Person other than to the Company or any of its existing Subsidiaries; (g) acquire, sell, lease or otherwise dispose of assets, except (i) pursuant to existing Contracts; (ii) inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice; (iii) pursuant materially adverse changes to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (iv) obsolete equipment and property no longer used in operation of Company’s business; (v) immaterial assets related to discontinued operations; (vi) with respect to the Company Owned Real Property; or (v) all acquisitions or dispositions of assets necessary with respect to the Company’s tenant in common programsPrivacy Policy, managed REIT’s, strategic funds or other similar programs managed or sponsored by the Company, which are entered into in the ordinary course of business consistent with past practice. (h) encumber any assets or property that are material to the Company and its Subsidiaries taken as a whole, except for Encumbrances (i) that would constitute a Permitted Encumbrance; (ii) related to any Indebtedness that may be incurred pursuant to Section 6.1(d); (iii) pursuant to existing Contracts; or (iv) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (i) other than in the ordinary course of business consistent with past practices make or commit to make any capital expenditures in excess of $1,000,000; (j) pay, discharge, satisfy or settle any Action or threatened Action involving a payment by the Company or any of its Subsidiaries other than any payment, discharge, satisfaction or settlement in the ordinary course of business consistent with past practice; (k) change any of its material accounting policies or practices, except as may be required by GAAP or by changes in GAAP; (i) except as required by Law, make, change or revoke any material election in respect of Taxes, or (ii) adopt or change any material accounting method in respect of Taxes, if such action would have an adverse effect on the Company; (mxvii) fail to maintain continuously in full force and effect any current material insurance policy undertake a “plant closing” or a commercially reasonable substitute for such a material insurance policy for a company engaged in business similar to those “mass layoff” which would trigger the notification requirements of the Company and it’s SubsidiariesWARN Act or applicable state or other law of similar effect; (nxviii) enter into any interest rate voluntarily recognize a labor union or currency swaps, caps, floors or option Contracts of the Company or its Subsidiaries or any other interest rate or currency risk management arrangement or foreign exchange Contracts of the Company or its Subsidiaries other than in the ordinary course of business consistent with past practicesimilar labor organization; (oxix) enter intocreate, modify, amend form or terminate otherwise acquire any Company Contract Subsidiaries or waive, release, compromise commit or assign agree to do any material rights or claims thereunder, other than in of the ordinary course of businessforegoing with respect to any such Subsidiary; or (pxx) commit, agree to, or commit by Contract or otherwise contract to do any of the foregoing. Nothing . (c) Other than Parent’s right to consent or withhold consent with respect to the foregoing matters, nothing contained in this Section 6.1 or anywhere else in this Agreement shall give Parent Parent, Merger Sub or Merger Subany of their respective Affiliates, directly or indirectly, the right to control or direct the Company’s or the Company’s any of its Subsidiaries’ operations prior to the Effective TimeClosing. Prior to the Closing, each of the Company and any of its Subsidiaries shall exercise, subject to the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations, as applicable.

Conduct of the Business by the Company. From and after the date hereof to the Effective Time or the date on which this Agreement is terminated pursuant to Section 8.1, except as (i) contemplated by this AgreementAgreement (including clauses (a) through (u) below), the Ancillary Agreements or the Company Budgets, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent in writing (which consent shall not be unreasonably withheld or delayed), the Company shall and shall cause each of its Subsidiaries to (A) use its commercially reasonable efforts to conduct its business in the ordinary course of business generally consistent with past practice, (B) comply with all applicable Laws practice and all Company Contracts (which for purposes of this Section 6.1 shall include any Contract that would be a Company Contract if existing on the date of this Agreement), and (C) use its commercially reasonable efforts to preserve intact its current business organization and organization, keep available the services of its current officers and key employeesemployees and keep its relationships with key customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality of the foregoing, during the period specified in the preceding sentence, except as (iA) otherwise contemplated by this Agreement, the Ancillary Agreements or the Company Budgets, (iiB) listed in Section 6.1 of the Company Disclosure Letter or (iiiC) consented to by Parent in 38 writing (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall cause each of its Subsidiaries not to, take any of the following actions: (a) amend or propose to amend its Amended and Restated Certificate of Incorporation, Amended and Restated By-Laws or other organizational documents other than as permitted by clause (b) below; (b) except as provided in Section 6.3, adopt a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganizationreorganization (other than a merger, consolidation or other reorganization solely between wholly owned Subsidiaries); (c) (i) issue, sell, pledge, transfer or otherwise dispose of or encumber any shares of its capital stock, Voting Debt of the Company or other voting securities or any securities convertible into or exchangeable for any of the foregoing; , (ii) grant or issue any options, warrants, securities or rights that are linked to the value of the Company Common Stock, or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; , (iii) split, combine, subdivide or reclassify any shares of its capital stock; , (iv) declare, set aside or pay any dividend or other distribution with respect to any shares of its capital stock; stock or (v) redeem, purchase or otherwise acquire any shares of its capital stock or any rights, warrants or options to acquire any such shares or effect any reduction in capital, except (with respect to clauses (i) through (v) above, but in all instances subject to the Aggregate Merger Consideration and the Aggregate Adjusted Options) for: (A) issuances of capital stock of the Company’s Subsidiaries to the Company or a wholly owned Subsidiary of the Company; , (B) issuances of shares of Company Common Stock upon exercise of employee stock options, upon vesting of restricted stock units or restricted stock or pursuant to the 2000 Warrants or the 2005 Warrants or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing; , (C) in connection with or grants made pursuant to Company Plans or the Company Stock Plan; Plans, (D) dividends or distributions by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company; Company or (E) as contemplated by Section 3.3(a3.3(a)(i); or (F) as set forth in Section 6.1(c) of the Company Disclosure Letter; (d) (i) issue any note, bond or other debt security or right to acquire any debt security, repurchase, repay or incur or guarantee any Indebtedness or enter into any “keep well” or other agreement to maintain the financial condition of another Person or other arrangements having the economic effect of any of the foregoing, other than (A) trade or standby letters of credit in the ordinary course of business; (B) in connection with new store openings or other actions in the ordinary course of business generally consistent with past practice; (C) pursuant to the Company Credit Agreement and other Contracts regarding other Indebtedness listed in the Company Disclosure Letter (including the “accordion” feature of the Company Credit Agreement); (D) as an alternative to the “accordion” feature of the Company Credit Agreement or to repay, prior to the Closing Date, amounts borrowed under the “accordion” feature of the Company Credit Agreement, mortgages not in excess of $40.0 million principal amount encumbering the Real Property identified in Section 6.1(d)(i)(D) of the Company Disclosure Letter; (DE) issuances, incurrences or guarantees by the Company to any wholly owned Subsidiary of the Company or by a Subsidiary to the Company or any other wholly owned Subsidiary of the Company; (EF) incurrences or guarantees of store leases; (G) other guarantees required under any agreements or commitments existing as of the date of this Agreement listed in the Company Disclosure Letter; (FH) in connection with any equipment leases entered into in the ordinary course of business generally consistent with past practice; (GI) in connection with any insurance premium financing in the ordinary course of business generally consistent with past practice; or (J) guarantees of any Indebtedness permitted by the foregoing clauses (A) through (FI); (ii) amend or (H) repayment of Indebtedness under otherwise restructure the Company Credit Agreement in any manner that increases the amount of the commitments thereunder (except as permitted under clause (C)) or in accordance with adds prepayment penalties; or (iii) incur any additional principal Indebtedness under the terms Company's indenture dated as of Indebtedness outstanding on the date hereof or incurred after the date hereof in accordance with this Section 6.1(d)January 29, 2002; (e) (i) increase the benefits under any Company Plan; Plan or Collective Bargaining Agreement, (ii) increase the compensation or benefits payable to, or enter into any employment agreements with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; , (iii) grant any rights to severance, change in control or termination pay to, or enter into any severance or change in control agreement or arrangement with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; , or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company PlanPlan or Collective Bargaining Agreement, except (with respect to clauses (i) through (iv) above): (A) as required by applicable Law or under the terms of this Agreement or any Company Plan or employment Contract, including under any existing severance agreements or arrangements arrangements, or Collective Bargaining Agreement in existence as of the date of this AgreementAgreement listed in the Company Disclosure Letter; (B) in connection with renewals (1) the renegotiation or amendment of broad-based plans on substantially equivalent terms any Collective Bargaining Agreement that is scheduled to expire in 2007 or 2008 or (2) the negotiation or amendment of any other Collective Bargaining Agreement that would not materially adversely affect the Company and other changes in broad based plans that do not increase the cost thereof in any material respectits Subsidiaries as a whole; (C) the entry into voluntary severance arrangements not announced prior to the date hereof with employees below the store-manager level in an amount in excess of $2.0 million in the aggregate; (D) with respect to clauses (i) and (ii) above, in the ordinary course of business with respect to employees who are not Executive Officers (increases of any of the foregoing in connection connections with promotions in the being deemed ordinary course of business generally consistent with past practice); or (DE) in connection with hiring of an individual to replace any existing executive officer Executive Officer the base salary of which whom is not in excess of 150% of the base salary of the executive officer Executive Officer whom such individual replaces; 39; (if) enter into or consummate any transaction involving the acquisition (including by merger, consolidation or acquisition of the business, equity or voting interest stock or all or substantially all of the assets or other business combination) of any other Person; (ii) make any loans, advances Person that would materially impair or delay the consummation of the transactions contemplated by this Agreement or for consideration to such Person in excess of $10,000,000 in the aggregate (other than loans purchases of inventory, or advances to employees acquisitions of or consultants to real property, fixtures and equipment for the Company opening of any Facility in the ordinary course of business generally consistent with past practice) or capital contributions to, or investments in, any other Person other than to the Company or any of its existing Subsidiaries); (g) acquire, sell, lease lease, license or otherwise dispose of assetsfixed assets or personal property for consideration in excess of $3,000,000 in the aggregate, except (i) pursuant to existing Contracts; , (ii) for sales of inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice; , (iii) in connection with the termination or closure of any Facility permitted by Section 6.1(n), or (iv) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (iv) obsolete equipment and property no longer used in operation of Company’s business; (v) immaterial assets related to discontinued operations; (vi) with respect to the Company Owned Real Property; or (v) all acquisitions or dispositions of assets necessary with respect to the Company’s tenant in common programs, managed REIT’s, strategic funds or other similar programs managed or sponsored by the Company, which are entered into in the ordinary course of business consistent with past practice.; (h) encumber any assets or property that are material to the Company and its Subsidiaries taken as a whole, except for Encumbrances (i) that would constitute a Permitted Encumbrance; (ii) related to any Indebtedness that may be incurred pursuant to Section 6.1(d); (iii) pursuant to existing Contracts; or (iv) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (i) other than in the ordinary course of business consistent with past practices make or commit to make any capital expenditures in excess of $1,000,0005,000,000 in any year, except (i) for the total amount contemplated by the Company Budgets (provided that the Company may not make capital expenditures for “Capital Expenditures—System Initiatives—Software” in an amount greater than the amount allocated therefore in the Company Budgets), (ii) in connection with the opening of a Facility in the ordinary course of business generally consistent with past practice or (iii) any emergency repair of a Facility or reconstruction or repair due to casualty losses at a Facility; (j) pay, discharge, satisfy or settle any Action or threatened Action involving a payment by the Company or any of its Subsidiaries other than any payment, discharge, satisfaction or settlement in the ordinary course of business consistent with past practicewhich would reasonably be expected to have a Company Material Adverse Effect; (k) change any of its material accounting policies or practices, except as may be required by GAAP or the rules and regulations of the SEC or by changes in GAAPGAAP or such SEC rules and regulations; (l) (i) except as required by Law, make, change or revoke any material election in respect of Taxes, or (ii) adopt or change any material accounting method in respect of Taxes, if such action would have an adverse effect on the Company(iii) enter into any Tax allocation agreement, Tax-sharing agreement, Tax indemnity agreement or closing agreement, (iv) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes, or (v) surrender any right to claim a material refund of Taxes; (m) fail to maintain continuously in full force and effect any current material insurance policy or a commercially reasonable substitute for such a material insurance policy for a company engaged in business similar to those of the Company sale and it’s Subsidiaries; (n) enter into any interest rate or currency swaps, caps, floors or option Contracts of the Company or its Subsidiaries or any other interest rate or currency risk management arrangement or foreign exchange Contracts of the Company or its Subsidiaries other than leaseback transactions except in the ordinary course of business generally consistent with past practice; (n) terminate or close any Facility or make any announcement of the intention to do so, except in the ordinary course of business generally consistent with past practice; (o) enter into, modify, amend or terminate into any consulting Contract requiring payments by the Company Contract or waive, release, compromise or assign any material rights or claims thereunder, in excess of $250,000 other than in the ordinary course of businessbusiness generally consistent with past practice and other than those cancelable (without giving rise to any penalty or additional cost or liability (other than for services performed prior to such cancellation)) within 90 days; (p) (i) delay payments of accounts payable and other obligations in a manner other than in the ordinary course of business generally consistent with past practice or (ii) accelerate the collection of receivables or modify the payment terms of any receivables other than in the ordinary course of business generally consistent with past practice; (q) except as permitted in clause (e) above, enter into any new Contract or modify or amend any existing Contract with (i) an Executive Officer, director, or control persons of the Company or any of its Subsidiaries or (ii) Yucaipa or any of its Affiliates (other than the Company and its Subsidiaries) or an executive officer, director or control person of Yucaipa; (r) incur out-of-pocket fees and expenses for investment banking, financial advisory services or due to Yucaipa and its Affiliates in connection with the transactions contemplated by this Agreement in excess of the amounts set forth in Section 6.1(r) of the Company Disclosure Letter; (s) materially adversely modify or amend or extend prior to the expiration date thereof any Contract set forth in Section 6.1(s) of the Company Disclosure Letter; (t) adopt, or propose to adopt, or maintain any shareholders’ rights plan, “poison pill” or other similar plan or agreement, unless Parent and Merger Sub are exempted from the provisions of such shareholders’ rights plan, “poison pill,” or other similar plan or agreement; or (pu) agree or commit by Contract or otherwise to do any of the foregoing. Nothing contained in this Section 6.1 or anywhere else in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or the Company’s Subsidiaries’ operations prior to the Effective Time.

Conduct of the Business by the Company. From and after the date hereof to the Effective Time or the date on which this Agreement is terminated pursuant to Section 8.1, except as (i) contemplated by this AgreementAgreement (including clauses (a) through (u) below), the Ancillary Agreements or the Company Budgets, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent in writing (which consent shall not be unreasonably withheld or delayed), the Company shall and shall cause each of its Subsidiaries to (A) use its commercially reasonable efforts to conduct its business in the ordinary course of business generally consistent with past practice, (B) comply with all applicable Laws practice and all Company Contracts (which for purposes of this Section 6.1 shall include any Contract that would be a Company Contract if existing on the date of this Agreement), and (C) use its commercially reasonable efforts to preserve intact its current business organization and organization, keep available the services of its current officers and key employeesemployees and keep its relationships with key customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality of the foregoing, during the period specified in the preceding sentence, except as (iA) otherwise contemplated by this Agreement, the Ancillary Agreements or the Company Budgets, (iiB) listed in Section 6.1 of the Company Disclosure Letter or (iiiC) consented to by Parent in 38 writing (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall cause each of its Subsidiaries not to, take any of the following actions: (a) amend or propose to amend its Amended and Restated Certificate of Incorporation, Amended and Restated By-Laws or other organizational documents other than as permitted by clause (b) below; (b) except as provided in Section 6.3, adopt a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganizationreorganization (other than a merger, consolidation or other reorganization solely between wholly owned Subsidiaries); (c) (i) issue, sell, pledge, transfer or otherwise dispose of or encumber any shares of its capital stock, Voting Debt of the Company or other voting securities or any securities convertible into or exchangeable for any of the foregoing; , (ii) grant or issue any options, warrants, securities or rights that are linked to the value of the Company Common Stock, or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; , (iii) split, combine, subdivide or reclassify any shares of its capital stock; , (iv) declare, set aside or pay any dividend or other distribution with respect to any shares of its capital stock; stock or (v) redeem, purchase or otherwise acquire any shares of its capital stock or any rights, warrants or options to acquire any such shares or effect any reduction in capital, except (with respect to clauses (i) through (v) above, but in all instances subject to the Aggregate Merger Consideration and the Aggregate Adjusted Options) for: (A) issuances of capital stock of the Company’s Subsidiaries to the Company or a wholly owned Subsidiary of the Company; , (B) issuances of shares of Company Common Stock upon exercise of employee stock options, upon vesting of restricted stock units or restricted stock or pursuant to the 2000 Warrants or the 2005 Warrants or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing; , (C) in connection with or grants made pursuant to Company Plans or the Company Stock Plan; Plans, (D) dividends or distributions by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company; Company or (E) as contemplated by Section 3.3(a3.3(a)(i); or (F) as set forth in Section 6.1(c) of the Company Disclosure Letter; (d) (i) issue any note, bond or other debt security or right to acquire any debt security, repurchase, repay or incur or guarantee any Indebtedness or enter into any “keep well” or other agreement to maintain the financial condition of another Person or other arrangements having the economic effect of any of the foregoing, other than (A) trade or standby letters of credit in the ordinary course of business; (B) in connection with new store openings or other actions in the ordinary course of business generally consistent with past practice; (C) pursuant to the Company Credit Agreement and other Contracts regarding other Indebtedness listed in the Company Disclosure Letter (including the “accordion” feature of the Company Credit Agreement); (D) as an alternative to the “accordion” feature of the Company Credit Agreement or to repay, prior to the Closing Date, amounts borrowed under the “accordion” feature of the Company Credit Agreement, mortgages not in excess of $40.0 million principal amount encumbering the Real Property identified in Section 6.1(d)(i)(D) of the Company Disclosure Letter; (DE) issuances, incurrences or guarantees by the Company to any wholly owned Subsidiary of the Company or by a Subsidiary to the Company or any other wholly owned Subsidiary of the Company; (EF) incurrences or guarantees of store leases; (G) other guarantees required under any agreements or commitments existing as of the date of this Agreement listed in the Company Disclosure Letter; (FH) in connection with any equipment leases entered into in the ordinary course of business generally consistent with past practice; (GI) in connection with any insurance premium financing in the ordinary course of business generally consistent with past practice; or (J) guarantees of any Indebtedness permitted by the foregoing clauses (A) through (F) I), or (Hii) repayment of Indebtedness under amend or otherwise restructure the Company Credit Agreement in any manner that increases the amount of the commitments thereunder (except as permitted under clause (C)) or in accordance with adds prepayment penalties; or (iii) incur any additional principal Indebtedness under the terms Company’s indenture dated as of Indebtedness outstanding on the date hereof or incurred after the date hereof in accordance with this Section 6.1(d)January 29, 2002; (e) (i) increase the benefits under any Company Plan; Plan or Collective Bargaining Agreement, (ii) increase the compensation or benefits payable to, or enter into any employment agreements with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; , (iii) grant any rights to severance, change in control or termination pay to, or enter into any severance or change in control agreement or arrangement with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; , or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company PlanPlan or Collective Bargaining Agreement, except (with respect to clauses (i) through (iv) above): (A) as required by applicable Law or under the terms of this Agreement or any Company Plan or employment Contract, including under any existing severance agreements or arrangements arrangements, or Collective Bargaining Agreement in existence as of the date of this AgreementAgreement listed in the Company Disclosure Letter; (B) in connection with renewals (1) the renegotiation or amendment of broad-based plans on substantially equivalent terms any Collective Bargaining Agreement that is scheduled to expire in 2007 or 2008 or (2) the negotiation or amendment of any other Collective Bargaining Agreement that would not materially adversely affect the Company and other changes in broad based plans that do not increase the cost thereof in any material respectits Subsidiaries as a whole; (C) the entry into voluntary severance arrangements not announced prior to the date hereof with employees below the store-manager level in an amount in excess of $2.0 million in the aggregate; (D) with respect to clauses (i) and (ii) above, in the ordinary course of business with respect to employees who are not Executive Officers (increases of any of the foregoing in connection connections with promotions in the being deemed ordinary course of business generally consistent with past practice); or (DE) in connection with hiring of an individual to replace any existing executive officer Executive Officer the base salary of which whom is not in excess of 150% of the base salary of the executive officer Executive Officer whom such individual replaces; 39; (if) enter into or consummate any transaction involving the acquisition (including by merger, consolidation or acquisition of the business, equity or voting interest stock or all or substantially all of the assets or other business combination) of any other Person; (ii) make any loans, advances Person that would materially impair or delay the consummation of the transactions contemplated by this Agreement or for consideration to such Person in excess of $10,000,000 in the aggregate (other than loans purchases of inventory, or advances to employees acquisitions of or consultants to real property, fixtures and equipment for the Company opening of any Facility in the ordinary course of business generally consistent with past practice) or capital contributions to, or investments in, any other Person other than to the Company or any of its existing Subsidiaries); (g) acquire, sell, lease lease, license or otherwise dispose of assetsfixed assets or personal property for consideration in excess of $3,000,000 in the aggregate, except (i) pursuant to existing Contracts; , (ii) for sales of inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice; , (iii) in connection with the termination or closure of any Facility permitted by Section 6.1(n), or (iv) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (iv) obsolete equipment and property no longer used in operation of Company’s business; (v) immaterial assets related to discontinued operations; (vi) with respect to the Company Owned Real Property; or (v) all acquisitions or dispositions of assets necessary with respect to the Company’s tenant in common programs, managed REIT’s, strategic funds or other similar programs managed or sponsored by the Company, which are entered into in the ordinary course of business consistent with past practice.; (h) encumber any assets or property that are material to the Company and its Subsidiaries taken as a whole, except for Encumbrances (i) that would constitute a Permitted Encumbrance; (ii) related to any Indebtedness that may be incurred pursuant to Section 6.1(d); (iii) pursuant to existing Contracts; or (iv) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (i) other than in the ordinary course of business consistent with past practices make or commit to make any capital expenditures in excess of $1,000,0005,000,000 in any year, except (i) for the total amount contemplated by the Company Budgets (provided that the Company may not make capital expenditures for “Capital Expenditures—System Initiatives—Software” in an amount greater than the amount allocated therefore in the Company Budgets), (ii) in connection with the opening of a Facility in the ordinary course of business generally consistent with past practice or (iii) any emergency repair of a Facility or reconstruction or repair due to casualty losses at a Facility; (j) pay, discharge, satisfy or settle any Action or threatened Action involving a payment by the Company or any of its Subsidiaries other than any payment, discharge, satisfaction or settlement in the ordinary course of business consistent with past practicewhich would reasonably be expected to have a Company Material Adverse Effect; (k) change any of its material accounting policies or practices, except as may be required by GAAP or the rules and regulations of the SEC or by changes in GAAPGAAP or such SEC rules and regulations; (l) (i) except as required by Law, make, change or revoke any material election in respect of Taxes, or (ii) adopt or change any material accounting method in respect of Taxes, if such action would have an adverse effect on the Company(iii) enter into any Tax allocation agreement, Tax-sharing agreement, Tax indemnity agreement or closing agreement, (iv) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes, or (v) surrender any right to claim a material refund of Taxes; (m) fail to maintain continuously in full force and effect any current material insurance policy or a commercially reasonable substitute for such a material insurance policy for a company engaged in business similar to those of the Company sale and it’s Subsidiaries; (n) enter into any interest rate or currency swaps, caps, floors or option Contracts of the Company or its Subsidiaries or any other interest rate or currency risk management arrangement or foreign exchange Contracts of the Company or its Subsidiaries other than leaseback transactions except in the ordinary course of business generally consistent with past practice; (n) terminate or close any Facility or make any announcement of the intention to do so, except in the ordinary course of business generally consistent with past practice; (o) enter into, modify, amend or terminate into any consulting Contract requiring payments by the Company Contract or waive, release, compromise or assign any material rights or claims thereunder, in excess of $250,000 other than in the ordinary course of businessbusiness generally consistent with past practice and other than those cancelable (without giving rise to any penalty or additional cost or liability (other than for services performed prior to such cancellation)) within 90 days; (i) delay payments of accounts payable and other obligations in a manner other than in the ordinary course of business generally consistent with past practice or (ii) accelerate the collection of receivables or modify the payment terms of any receivables other than in the ordinary course of business generally consistent with past practice; (q) except as permitted in clause (e) above, enter into any new Contract or modify or amend any existing Contract with (i) an Executive Officer, director, or control persons of the Company or any of its Subsidiaries or (ii) Yucaipa or any of its Affiliates (other than the Company and its Subsidiaries) or an executive officer, director or control person of Yucaipa; (r) incur out-of-pocket fees and expenses for investment banking, financial advisory services or due to Yucaipa and its Affiliates in connection with the transactions contemplated by this Agreement in excess of the amounts set forth in Section 6.1(r) of the Company Disclosure Letter; (s) materially adversely modify or amend or extend prior to the expiration date thereof any Contract set forth in Section 6.1(s) of the Company Disclosure Letter; (t) adopt, or propose to adopt, or maintain any shareholders’ rights plan, “poison pill” or other similar plan or agreement, unless Parent and Merger Sub are exempted from the provisions of such shareholders’ rights plan, “poison pill,” or other similar plan or agreement; or (pu) agree or commit by Contract or otherwise to do any of the foregoing. Nothing contained in this Section 6.1 or anywhere else in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or the Company’s Subsidiaries’ operations prior to the Effective Time.

Conduct of the Business by the Company. From and after the date hereof to the Effective Time or the date on which this Agreement is terminated pursuant to Section 8.1, except as (i) contemplated by this Agreement, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent in writing (which consent shall not be unreasonably withheld or delayed), the Company shall and shall cause each of its Subsidiaries to (A) conduct its business in the ordinary course of business generally consistent with past practice, (B) comply with all applicable Laws and all Company Contracts (which for purposes of this Section 6.1 shall include any Contract that would be a Company Contract if existing on the date of this Agreement), and (C) use its commercially reasonable efforts to preserve intact its current business organization and keep available the services of its current officers and key employees. Without limiting the generality of the foregoing, during the period specified in the preceding sentence, except as (i) otherwise contemplated by this Agreement, (ii) listed in Section 6.1 of the Company Disclosure Letter or (iii) consented to by Parent in 38 writing (which consent shall not be unreasonably withheld or delayed), the Company shall not, and shall cause each of its Subsidiaries not to, take any of the following actions: (a) amend or propose to amend its Certificate of Incorporation, By-Laws or other organizational documents other than as permitted by clause (b) below; (b) except as provided in Section 6.3, adopt a plan or agreement of liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization; (c) (i) issue, sell, pledge, transfer or otherwise dispose of or encumber any shares of its capital stock, or other voting securities or any securities convertible into or exchangeable for any of the foregoing; (ii) grant or issue any options, warrants, securities or rights that are linked to the value of the Company Common Stock, or other rights to purchase or obtain any shares of its capital stock or any of the foregoing or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; (iii) split, combine, subdivide or reclassify any shares of its capital stock; (iv) declare, set aside or pay any dividend or other distribution with respect to any shares of its capital stock; or (v) redeem, purchase or otherwise acquire any shares of its capital stock or any rights, warrants or options to acquire any such shares or effect any reduction in capital, except (with respect to clauses (i) through (v) above, but in all instances subject to the Aggregate Merger Consideration and the Aggregate Adjusted Options) for: (A) issuances of capital stock of the Company’s Subsidiaries to the Company or a wholly owned Subsidiary of the Company; (B) issuances of shares of Company Common Stock upon exercise of stock options, upon vesting of restricted stock or redemptions, purchases or other acquisitions of capital stock in connection with net exercises or withholding with respect to the foregoing; (C) in connection with or pursuant to Company Plans or the Company Stock Plan; (D) dividends or distributions by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company; (E) as contemplated by Section 3.3(a); or (F) as set forth in Section 6.1(c) of the Company Disclosure Letter; (d) (i) issue any note, bond or other debt security or right to acquire any debt security, repurchase, repay or incur or guarantee any Indebtedness other than (A) trade or standby letters of credit in the ordinary course of business; (B) in the ordinary course of business generally consistent with past practice; (C) pursuant to the Company Credit Agreement and other Contracts regarding other Indebtedness listed in the Company Disclosure Letter; (D) issuances, incurrences or guarantees by the Company to any wholly owned Subsidiary of the Company or by a Subsidiary to the Company or any other wholly owned Subsidiary of the Company; (E) commitments existing as of the date of this Agreement listed in the Company Disclosure Letter; (F) in connection with any equipment leases entered into in the ordinary course of business generally consistent with past practice; (G) guarantees of any Indebtedness permitted by the foregoing clauses (A) through (F) or (H) repayment of Indebtedness under the Company Credit Agreement or in accordance with the terms of Indebtedness outstanding on the date hereof or incurred after the date hereof in accordance with this Section 6.1(d); (e) (i) increase the benefits under any Company Plan; (ii) increase the compensation or benefits payable to, or enter into any employment agreements with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; (iii) grant any rights to severance, change in control or termination pay to, or enter into any severance or change in control agreement or arrangement with, any current or former director, officer, employee or consultant of the Company or its Subsidiaries; or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Plan, except (with respect to clauses (i) through (iv) above): (A) as required by applicable Law or under the terms of this Agreement or any Company Plan or employment Contract, including under any existing severance agreements or arrangements in existence as of the date of this Agreement; (B) in connection with renewals of broad-based plans on substantially equivalent terms and other changes in broad based plans that do not increase the cost thereof in any material respect; (C) with respect to clauses (i) and (ii) above, with respect to employees in connection with promotions in the ordinary course of business generally consistent with past practice; or (D) in connection with hiring of an individual to replace any existing executive officer the base salary of which is not in excess of 150% of the base salary of the executive officer whom such individual replaces; 39; (i) enter into or consummate any transaction involving the acquisition (including by merger, consolidation or acquisition of the business, equity or voting interest or all or substantially all of the assets or other business combination) of any other Person; (ii) make any loans, advances (other than loans or advances to employees of or consultants to the Company in the ordinary course of business generally consistent with past practice) or capital contributions to, or investments in, any other Person other than to the Company or any of its existing Subsidiaries; (g) acquire, sell, lease or otherwise dispose of assets, except (i) pursuant to existing Contracts; (ii) inventory, goods, personal property and fixed assets in the ordinary course of business generally consistent with past practice; (iii) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (iv) obsolete equipment and property no longer used in operation of Company’s business; (v) immaterial assets related to discontinued operations; (vi) with respect to the Company Owned Real Property; or (v) all acquisitions or dispositions of assets necessary with respect to the Company’s tenant in common programs, managed REIT’s, strategic funds or other similar programs managed or sponsored by the Company, which are entered into in the ordinary course of business consistent with past practice. (h) encumber any assets or property that are material to the Company and its Subsidiaries taken as a whole, except for Encumbrances (i) that would constitute a Permitted Encumbrance; (ii) related to any Indebtedness that may be incurred pursuant to Section 6.1(d); (iii) pursuant to existing Contracts; or (iv) pursuant to any Company Tenant Leases whether now existing or entered into after the date hereof in the ordinary course of business generally consistent with past practice; (i) other than in the ordinary course of business consistent with past practices make or commit to make any capital expenditures in excess of $1,000,000; (j) pay, discharge, satisfy or settle any Action or threatened Action involving a payment by the Company or any of its Subsidiaries other than any payment, discharge, satisfaction or settlement in the ordinary course of business consistent with past practice; (k) change any of its material accounting policies or practices, except as may be required by GAAP or by changes in GAAP; (l) (i) except as required by Law, make, change or revoke any material election in respect of Taxes, or (ii) adopt or change any material accounting method in respect of Taxes, if such action would have an adverse effect on the Company; (m) fail to maintain continuously in full force and effect any current material insurance policy or a commercially reasonable substitute for such a material insurance policy for a company engaged in business similar to those of the Company and it’s Subsidiaries; (n) enter into any interest rate or currency swaps, caps, floors or option Contracts of the Company or its Subsidiaries or any other interest rate or currency risk management arrangement or foreign exchange Contracts of the Company or its Subsidiaries other than in the ordinary course of business consistent with past practice; (o) enter into, modify, amend or terminate any Company Contract or waive, release, compromise or assign any material rights or claims thereunder, other than in the ordinary course of business; or (p) agree or commit by Contract or otherwise to do any of the foregoing. Nothing contained in this Section 6.1 or anywhere else in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or the Company’s Subsidiaries’ operations prior to the Effective Time.