Common use of Forbearances of Seller Clause in Contracts

Forbearances of Seller. Except as set forth on Schedule 4.02 or as ---------------------- otherwise contemplated by this Agreement, during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any of the Seller Subsidiaries to, without the prior written consent of Buyer: (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary of Seller to Seller or another Subsidiary of Seller), except that Seller may (i) declare and pay cash dividends on the Seller Common Stock in the aggregate of not more than $2.4 million per calendar quarterly period and (ii) distribute management fees in the aggregate of not more than $250,000 per calendar quarterly period; (b) enter into or amend any employment, severance or similar agreement or arrangement with any, director, officer or employee, or modify any of the Seller Employee Plans or grant any salary or wage increase including incentive or bonus payments), except normal individual increases in compensation to rank and file employees consistent with past practice, or as required by law or contract; provided, that Seller may (i) pay management performance bonuses at times and in amounts consistent with past practice, which shall be in amounts in the aggregate equal to bonuses granted with respect to services in 1996 and (ii) make severance and retention payments pursuant to all employment, severance or similar agreements or arrangements in effect as of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by such person, an excess parachute payment under Section 280G of the IRC; (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; or (d) propose or adopt any amendments to its Certificate of Incorporation or other charter document or Bylaws; or (e) issue, sell, grant, confer or award any of its Equity Securities or effect any split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or (f) purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or (i) without first consulting with Buyer, enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) $1,000,000 in respect of residential real estate transactions, or in an amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions or in an amount which, when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of $1,000,000 in respect of Commercial Transactions; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided that in the case of clauses (ii) and -------- (iii) Seller or any Seller Subsidiary may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyer or its designated representative a notice of its intention to make such loan and such information as Buyer or its designated representative may reasonably require in respect thereof and (B) Buyer or its designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $500,000; provided, however, that nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer or obtaining Buyer's prior written consent, to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed, be in excess of the lesser of 5% of such Pre-Existing Facility or $25,000; or; (h) directly or indirectly (including through its officers, directors, employees, other representatives or the partners of the Selling Stockholder (including any general or limited partner of the General Partner of the Selling Stockholder)) initiate, solicit or encourage any discussions, inquiries or proposals with any third party relating to the disposition of any significant portion of the business or assets of Seller or any Seller Subsidiary or the acquisition of Equity Securities of Seller or any Seller Subsidiary or the merger of Seller or any Seller Subsidiary with any person (other than Buyer, Seller or another Seller Subsidiary) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction and promptly confirm the same to Buyer in writing; or (i) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyer or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the IRC; or (j) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, partnership, corporation or other entity or pay without prior approval of Buyer, which shall not be unreasonably withheld, any Merger Fees in excess of the amount set forth on Schedule 2.23; or (k) materially restructure or materially change its investment securities portfolio, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or execute any individual investment transaction for its own account (i) in securities backed by the full faith and credit of the United States or an agency thereof in excess of $1,000,000 and (ii) in any other investment securities in excess of $500,000; or (l) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (m) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act.

Forbearances of Seller. Except as set forth on in Schedule 4.02 or as ---------------------- 4.2, without the prior written consent of Buyers (unless otherwise contemplated by specifically noted in this AgreementSection 4.2), during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any of the Seller Subsidiaries to, without the prior written consent of Buyer: (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary any of the Seller Subsidiaries to Seller or to another Subsidiary of Sellerthe Seller Subsidiaries), except that between the date of this Agreement and the Closing Date, Seller may (i) declare and pay regular cash dividends of not more than $0.17 per share on the Seller Common Stock in on each of January 28, 1999, April 22, 1999 and July 29, 1999 (but only if such dates occur before the aggregate of not more than $2.4 million per calendar quarterly period and (ii) distribute management fees in the aggregate of not more than $250,000 per calendar quarterly periodClosing Date); (b) enter into or amend any employment, severance or similar agreement or arrangement with any, any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to rank and file employees consistent with past practice, (ii) subject to the limitation of Section 5.8(b), discretionary contributions to the ESOP made solely for the purpose of retiring the ESOP loan to the Seller, or (iii) as required by law or contract; provided, that Seller may (i) pay management performance bonuses at times and in amounts consistent with past practice, which shall be in amounts in the aggregate equal to bonuses granted with respect to services in 1996 and (ii) make severance and retention payments pursuant to all employment, severance or similar agreements or arrangements in effect as of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by such person, an excess parachute payment under Section 280G of the IRC; (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; or; (d) propose or adopt any amendments to its Certificate or Articles of Incorporation or other charter document or Bylaws; orBy-Laws or to the Certificate or Articles of Incorporation or other charter document or By-Laws of any of the Seller Subsidiaries; (e) issue, sell, grant, confer or award any of its Equity Securities (except that the Seller may issue up to 7,635 shares of Seller Common Stock upon exercise of the Seller Stock Options outstanding on the date of this Agreement) or effect any stock split or stock dividend or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or; (f) purchase, redeem, retire, repurchase, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or; (ig) without first consulting with Buyer, enter into, renew make or increase any commit to make a loan or grant an extension of credit commitment to any borrower (including stand-by letters any renewals of credit) to, existing loans or invest additional advances on loans to existing borrowers of the Seller or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to"Seller Subsidiaries) in an amount in excess of (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) $1,000,000 in respect of residential real estate transactions, or in an amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions or in an amount which, when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of $1,000,000 in respect of Commercial Transactions; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided that which will result in the case of clauses (ii) and -------- (iii) principal balance owing to the Seller or any of the Seller Subsidiary may make any such loan Subsidiaries in the event (A) Seller aggregate to exceed $150,000 for any secured loan or any Seller Subsidiary has delivered to Buyer or its designated representative a notice of its intention to make such loan and such information as Buyer or its designated representative may reasonably require in respect thereof and (B) Buyer or its designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions extension of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $500,000; provided, however, that nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer or obtaining Buyer's prior written consent, to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed, be in excess of the lesser of 5% of such Pre-Existing Facility or $25,000; or25,000 for any unsecured loan or extension of credit; (h) directly or indirectly (including through its officers, directors, employees, other representatives or the partners of the Selling Stockholder (including any general or limited partner of the General Partner of the Selling Stockholder)) initiate, solicit or encourage any discussions, inquiries or proposals with any third party relating to the disposition of any significant portion of the business or assets of Seller or any Seller Subsidiary or the acquisition of Equity Securities of Seller or any Seller Subsidiary or the merger of Seller or any Seller Subsidiary with any person (other than Buyer, Seller or another Seller Subsidiary) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction and promptly confirm the same to Buyer in writing; or (i) take any action that would (A) has the reasonable and foreseeable likelihood of materially impede impeding or delay delaying the consummation of the transactions contemplated by this Agreement or the ability of Buyer Buyers or Seller to obtain any approval of any Regulatory Authority or Additional Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the IRC; orAgreement; (ji) obtain any advances from the FHLB of Chicago with maturities in excess of ninety (90) days or, other than in the ordinary course of business consistent with past practice, incur any other indebtedness for borrowed money, money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, partnership, corporation or other entity entity; (j) except as provided in Schedule 4.2(j) in connection with Seller's continuation of its practice of selling fixed rate loans that are generated by the Seller Subsidiaries, sell any portion or pay without prior approval all of Buyerthe Seller's or any of the Seller Subsidiaries' loan or investment portfolios, it being understood that there have been no sales of all or any portion of the loan or bond portfolios from September 30, 1998 to the date hereof; or invest any of the Seller's or any of the Seller Subsidiaries' assets in any marketable securities other than U.S. Treasury or U.S. Agency securities with a maturity of two years or less or GNMA adjustable rate mortgage securities purchased at a dollar price not to exceed 101% of par value; (k) make loans to "insiders," as that term is defined in Section 2.29, except for renewals of outstanding indebtedness in the ordinary course of business; (l) fail to recognize loan losses or fund any of the Seller Subsidiaries' loan loss reserve or allowance except (i) in the ordinary course of business, consistent with past practices and the policies of the Seller and the Seller Subsidiaries, (ii) in accordance with GAAP and (iii) in accordance with regulatory guidelines, policies and regulations or as required pursuant to any regulatory examination of any of the Seller Subsidiaries; (m) fail to accrue income and expenses on the Seller's and any of the Seller Subsidiaries' books in the ordinary course of business and in accordance with GAAP; (n) fail to disclose in writing to BFC any facts or circumstances which shall not be unreasonably withheld, cause the risk rating for any Merger Fees extension of credit or participation owned by the Seller or any of the Seller Subsidiaries with a principal balance outstanding in excess of $100,000 to be adversely affected; (o) make any capital expenditures or commitment for capital expenditures for the amount set forth on Schedule 2.23Seller and the Seller Subsidiaries, except in the ordinary course of business which individually exceed $20,000 or, in the aggregate, exceed $50,000; (p) enter into or amend any other contract, agreement, understanding, arrangement or commitment not already described or addressed in this Section 4.2 involving an obligation by Seller or any of the Seller Subsidiaries of more than $25,000, other than contracts entered into in respect of deposit agreements; or (k) materially restructure or materially change its investment securities portfolio, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or execute any individual investment transaction for its own account (i) in securities backed by the full faith and credit of the United States or an agency thereof in excess of $1,000,000 and (ii) in any other investment securities in excess of $500,000; or (l) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (mq) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act.

Forbearances of Seller. Except as Without limiting the covenants set forth on Schedule 4.02 or in Section 6.01 hereof, from the date of the Original Asset Purchase Agreement until the Second Closing Date (other than the covenants set forth in Sections 6.02(c), 6.02(d) and 6.02(e), which shall survive the Second Closing and shall continue to have effect with respect to the actions of the Sellers until the Continuing Employee Transfer Date), except (i) as ---------------------- otherwise contemplated by this Agreement, during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any (ii) as set forth in Section 6.02 of the Seller Subsidiaries toDisclosure Schedules, without the prior written consent of Buyer: (aiii) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary of Seller to Seller or another Subsidiary of Seller), except that Seller may (i) declare and pay cash dividends on the Seller Common Stock in the aggregate of not more than $2.4 million per calendar quarterly period and (ii) distribute management fees in the aggregate of not more than $250,000 per calendar quarterly period; (b) enter into or amend any employment, severance or similar agreement or arrangement with any, director, officer or employee, or modify any of the Seller Employee Plans or grant any salary or wage increase including incentive or bonus payments), except normal individual increases in compensation to rank and file employees consistent with past practice, or as required by law or contract; providedLaw, that Seller may (i) pay management performance bonuses at times and in amounts consistent with past practice, which shall be in amounts in the aggregate equal to bonuses granted with respect to services in 1996 and (ii) make severance and retention payments pursuant to all employment, severance or similar agreements or arrangements in effect as of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by such person, an excess parachute payment under Section 280G of the IRC; (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; or (d) propose or adopt any amendments to its Certificate of Incorporation or other charter document or Bylaws; or (e) issue, sell, grant, confer or award any of its Equity Securities or effect any split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or (f) purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or (i) without first consulting with Buyer, enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) $1,000,000 in respect of residential real estate transactions, or in an amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions or in an amount which, when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of $1,000,000 in respect of Commercial Transactions; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided that in the case of clauses (ii) and -------- (iii) Seller or any Seller Subsidiary may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyer or its designated representative a notice of its intention to make such loan and such information as Buyer or its designated representative may reasonably require in respect thereof and (B) Buyer or its designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $500,000; provided, however, that nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer or obtaining Buyer's extent Purchaser provides prior written consent, consent to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consentdo otherwise, which consent shall not be unreasonably withheld or delayed, each of the Sellers will not: (a) enter into any Contract that will be an Assumed Contract that is not terminable within sixty (60) days and involving payments or obligations by Sellers in excess of the lesser of 5% of such Pre-Existing Facility or $25,000; or250,000 individually; (h) directly or indirectly (including through its officers, directors, employees, other representatives or the partners of the Selling Stockholder (including any general or limited partner of the General Partner of the Selling Stockholder)) initiate, solicit or encourage any discussions, inquiries or proposals with any third party relating to the disposition of any significant portion of the business or assets of Seller or any Seller Subsidiary or the acquisition of Equity Securities of Seller or any Seller Subsidiary or the merger of Seller or any Seller Subsidiary with any person (other than Buyer, Seller or another Seller Subsidiary) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction and promptly confirm the same to Buyer in writing; or (i) take amend in any action material respect or terminate any Assumed Contract identified as a Tier 1 or Tier 2 Contract on Schedule 1.01(b), or waive or release any material rights or claims thereunder, provided, however, that the expiration of any such Contract by its terms prior to the Second Closing shall be deemed not to be a termination of such Contract under this clause, or (ii) enter into any Assumed Contract that would (A) materially impede have been identified as a Tier 1 or delay Tier 2 Contract had it been entered into prior to the consummation date of the transactions contemplated by this Agreement Original Asset Purchase Agreement; (c) grant or the ability award any change in any item of Buyer recurring or Seller to obtain any approval periodic cash compensation of any Regulatory Authority required Master Servicing Employee except for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the IRC; or (j) other than increases in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed moneyexcept as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any other individualobligation to indemnify any Purchaser Indemnified Party, partnershipwhether pursuant to Section 10.02 or otherwise, corporation for such failure or any consequence thereof; (d) enter into, materially modify or cause the termination of any employment agreement, pension, retirement, stock option, stock purchase, stock appreciation right, stock grant, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other entity employee benefit, incentive, welfare, employment, severance, retention, change in control or pay without prior approval similar Contract, plan, policy, program or arrangement, or any trust agreement related thereto, in respect of Buyerany Master Servicing Employee; or make any discretionary contributions to any defined contribution or defined benefit plan for the benefit of any Master Servicing Employee other than discretionary contributions in the ordinary course of business consistent with past practice, which except as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any obligation to indemnify any Purchaser Indemnified Party, whether pursuant to Section 10.02 or otherwise, for such failure or any consequence thereof; (e) take any action that would give rise to a right of payment to any Master Servicing Employee under any employment agreement (other than in connection with the hiring or promotion of an individual to replace a Master Servicing Employee, on terms substantially consistent with the terms of the employment agreement with the Master Servicing Employee being replaced), or that would accelerate a right to payment to any Master Servicing Employee under any employee compensation or benefit plan, except as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any obligation to indemnify any Purchaser Indemnified Party, whether pursuant to Section 10.02 or otherwise, for such failure or any consequence thereof; (f) sell, transfer, assign, lease, license, cancel, abandon, mortgage, surrender, subject to any Lien (other than a Permitted Lien) or otherwise dispose of or encumber any of the Purchased Assets in one transaction or a series of related transactions having a value, individually or in the aggregate, in excess of $250,000; provided, however, that Sellers shall not be unreasonably withheldentitled to sell, transfer, assign, lease, license, cancel, abandon, mortgage, surrender, subject to any Merger Fees Lien (other than a Permitted Lien) or otherwise dispose of or encumber (i) the Servicing Rights, Servicing Rights Agreements, Servicing Agreements, Subservicing Rights, Subservicing Rights Agreements, Servicing Compensation, Late Fees, Ancillary Income, Servicer Advance Receivables and Deferred Servicing Fees, (ii) any Purchased Assets related to the Master Servicing Business or (iii) any personal property located at the Indianapolis Leased Real Property; (g) create, incur, assume or guarantee any Indebtedness that will constitute an Assumed Liability as of the Applicable Closing Date or subject any Purchased Asset to any Lien that will not be released as of the Applicable Closing Date; (h) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any optional early adoption date) or any Bank Regulator responsible for regulating any Seller; provided, that if any such changes are required, the Sellers shall promptly provide written notice to Purchaser with respect thereto; (i) waive or forgive any claim or right of a Seller relating to the Purchased Assets in one transaction or a series of related transactions having a value in excess of $500,000; (j) with respect to the amount set forth on Schedule 2.23; orPurchased Assets, make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes or otherwise, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except as required by Law or GAAP; (k) materially restructure purchase new mortgage servicing rights or materially change its investment securities portfoliosell mortgage servicing rights relating to Serviced Mortgage Loans, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner except pursuant to contractual commitments (including co-issue commitments/agreements) that are set forth in which the portfolio is classified or reported, or execute any individual investment transaction for its own account (iSection 6.02(k) in securities backed by the full faith and credit of the United States Seller Disclosure Schedules; (l) acquire assets that are Purchased Assets having a value individually or an agency thereof in the aggregate in excess of $1,000,000 and 500,000; (iim) amend in any material respect or terminate any Servicing Agreement, Servicing Rights Agreement, Subservicing Agreement or Master Servicing Agreement; except as necessary to comply with the Applicable Servicing Requirements, provided, however, that the expiration of any such Contract by its terms prior to the Second Closing shall be deemed not to be a termination of such Contract under this clause; (n) change its servicing practices in any material respect, except as required by Applicable Servicing Requirements; provided, that, prior to making any such changes pursuant to clause (b) of the definition of Applicable Servicing Requirements, the Sellers shall in good faith consult with Purchaser with respect thereto; (o) make any capital expenditure other investment securities than expenditures necessary to maintain existing Purchased Assets in good repair; (p) settle any Action with any Person (other than a Governmental Entity) pursuant to terms which, individually, could reasonably be expected to result in a Loss Sharing Claim in excess of $500,000; or or (lq) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (m) agree in writing or otherwise to take do any of the foregoing actions or engage in any activity, enter into any transaction or take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other actforegoing.

Forbearances of Seller. Except as Without limiting the covenants set forth on Schedule 4.02 or in Section 6.01 hereof, from the date of the Original Asset Purchase Agreement until the Second Closing Date (other than the covenants set forth in Sections 6.02(c), 6.02(d) and 6.02(e), which shall survive the Second Closing and shall continue to have effect with respect to the actions of the Sellers until the Continuing Employee Transfer Date), except (i) as ---------------------- otherwise contemplated by this Agreement, during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any (ii) as set forth in Section 6.02 of the Seller Subsidiaries toDisclosure Schedules, without the prior written consent of Buyer: (aiii) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary of Seller to Seller or another Subsidiary of Seller), except that Seller may (i) declare and pay cash dividends on the Seller Common Stock in the aggregate of not more than $2.4 million per calendar quarterly period and (ii) distribute management fees in the aggregate of not more than $250,000 per calendar quarterly period; (b) enter into or amend any employment, severance or similar agreement or arrangement with any, director, officer or employee, or modify any of the Seller Employee Plans or grant any salary or wage increase including incentive or bonus payments), except normal individual increases in compensation to rank and file employees consistent with past practice, or as required by law or contract; providedLaw, that Seller may (i) pay management performance bonuses at times and in amounts consistent with past practice, which shall be in amounts in the aggregate equal to bonuses granted with respect to services in 1996 and (ii) make severance and retention payments pursuant to all employment, severance or similar agreements or arrangements in effect as of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by such person, an excess parachute payment under Section 280G of the IRC; (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; or (d) propose or adopt any amendments to its Certificate of Incorporation or other charter document or Bylaws; or (e) issue, sell, grant, confer or award any of its Equity Securities or effect any split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or (f) purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or (i) without first consulting with Buyer, enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) $1,000,000 in respect of residential real estate transactions, or in an amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions or in an amount which, when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of $1,000,000 in respect of Commercial Transactions; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided that in the case of clauses (ii) and -------- (iii) Seller or any Seller Subsidiary may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyer or its designated representative a notice of its intention to make such loan and such information as Buyer or its designated representative may reasonably require in respect thereof and (B) Buyer or its designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $500,000; provided, however, that nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer or obtaining Buyer's extent Purchaser provides prior written consent, consent to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consentdo otherwise, which consent shall not be unreasonably withheld or delayed, each of the Sellers will not: (a) enter into any Contract that will be an Assumed Contract that is not terminable within sixty (60) days and involving payments or obligations by Sellers in excess of the lesser of 5% of such Pre-Existing Facility or $25,000; or250,000 individually; (h) directly or indirectly (including through its officers, directors, employees, other representatives or the partners of the Selling Stockholder (including any general or limited partner of the General Partner of the Selling Stockholder)) initiate, solicit or encourage any discussions, inquiries or proposals with any third party relating to the disposition of any significant portion of the business or assets of Seller or any Seller Subsidiary or the acquisition of Equity Securities of Seller or any Seller Subsidiary or the merger of Seller or any Seller Subsidiary with any person (other than Buyer, Seller or another Seller Subsidiary) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction and promptly confirm the same to Buyer in writing; or (i) take amend in any action material respect or terminate any Assumed Contract identified as a Tier 1 or Tier 2 Contract on Schedule 1.01(b), or waive or release any material rights or claims thereunder, provided, however, that the expiration of any such Contract by its terms prior to the Second Closing shall be deemed not to be a termination of such Contract under this clause, or (ii) enter into any Assumed Contract that would (A) materially impede have been identified as a Tier 1 or delay Tier 2 Contract had it been entered into prior to the consummation date of the transactions contemplated by this Agreement Original Asset Purchase Agreement; (c) grant or the ability award any change in any item of Buyer recurring or Seller to obtain any approval periodic cash compensation of any Regulatory Authority required Master Servicing Employee except for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the IRC; or (j) other than increases in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed moneyexcept as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any other individualobligation to indemnify any Purchaser Indemnified Party, partnershipwhether pursuant to Section 10.02 or otherwise, corporation for such failure or any consequence thereof; (d) enter into, materially modify or cause the termination of any employment agreement, pension, retirement, stock option, stock purchase, stock appreciation right, stock grant, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other entity employee benefit, incentive, welfare, employment, severance, retention, change in control or pay without prior approval similar Contract, plan, policy, program or arrangement, or any trust agreement related thereto, in respect of Buyerany Master Servicing Employee; or make any discretionary contributions to any defined contribution or defined benefit plan for the benefit of any Master Servicing Employee other than discretionary contributions in the ordinary course of business consistent with past practice, which except as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any obligation to indemnify any Purchaser Indemnified Party, whether pursuant to Section 10.02 or otherwise, for such failure or any consequence thereof; (e) take any action that would give rise to a right of payment to any Master Servicing Employee under any employment agreement (other than in connection with the hiring or promotion of an individual to replace a Master Servicing Employee, on terms substantially consistent with the terms of the employment agreement with the Master Servicing Employee being replaced), or that would accelerate a right to payment to any Master Servicing Employee under any employee compensation or benefit plan, except as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any obligation to indemnify any Purchaser Indemnified Party, whether pursuant to Section 10.02 or otherwise, for such failure or any consequence thereof; (f) sell, transfer, assign, lease, license, cancel, abandon, mortgage, surrender, subject to any Lien (other than a Permitted Lien) or otherwise dispose of or encumber any of the Purchased Assets in one transaction or a series of related transactions having a value, individually or in the aggregate, in excess of $250,000; provided, however, that Sellers shall not be unreasonably withheldentitled to sell, transfer, assign, lease, license, cancel, abandon, mortgage, surrender, subject to any Merger Fees Lien (other than a Permitted Lien) or otherwise dispose of or encumber (i) the Servicing Rights, Servicing Rights Agreements, Servicing Agreements, Subservicing Rights, Subservicing Rights Agreements, Servicing Compensation, Late Fees, Ancillary Income, Servicer Advance Receivables and Deferred Servicing Fees, (ii) any Purchased Assets related to the Master Servicing Business or (iii) any personal property located at the Indianapolis Leased Real Property; (g) create, incur, assume or guarantee any Indebtedness that will constitute an Assumed Liability as of the Applicable Closing Date or subject any Purchased Asset to any Lien that will not be released as of the Applicable Closing Date; (h) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any optional early adoption date) or any Bank Regulator responsible for regulating any Seller; provided, that if any such changes are required, the Sellers shall promptly provide written notice to Purchaser with respect thereto; (i) waive or forgive any claim or right of a Seller relating to the Purchased Assets in one transaction or a series of related transactions having a value in excess of $500,000; (j) with respect to the amount set forth on Schedule 2.23; orPurchased Assets, make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes or otherwise, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except as required by Law or GAAP; (k) materially restructure purchase new mortgage servicing rights or materially change its investment securities portfoliosell mortgage servicing rights relating to Serviced Mortgage Loans, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner except pursuant to contractual commitments (including co-issue commitments/agreements) that are set forth in which the portfolio is classified or reported, or execute any individual investment transaction for its own account (iSection 6.02(k) in securities backed by the full faith and credit of the United States Seller Disclosure Schedules; (l) acquire assets that are Purchased Assets having a value individually or an agency thereof in the aggregate in excess of $1,000,000 and 500,000; (iim) amend in any material respect or terminate any Servicing Agreement, Servicing Rights Agreement, Subservicing Agreement or Master Servicing Agreement; except as necessary to comply with the Applicable Servicing Requirements, provided, however, that the expiration of any such Contract by its terms prior to the Second Closing shall be deemed not to be a termination of such Contract under this clause; (n) change its servicing practices in any material respect, except as required by Applicable Servicing Requirements; provided, that, prior to making any such changes pursuant to clause (b) of the definition of Applicable Servicing Requirements, the Sellers shall in good faith consult with Purchaser with respect thereto; (o) make any capital expenditure other investment securities than expenditures necessary to maintain existing Purchased Assets in good repair; (p) settle any Action with any Person (other than a Governmental Entity) pursuant to terms which, individually, could reasonably be expected to result in a Loss Sharing Claim in excess of $500,000; or (lq) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (m) agree in writing or otherwise to take do any of the foregoing actions or engage in any activity, enter into any transaction or take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other actforegoing.

Forbearances of Seller. Except as set forth on in ---------------------- Schedule 4.02 and except to the extent required by law, regulation ------------- or as ---------------------- any Regulatory Authority, or with the prior written consent of Buyer (which consent shall not be unreasonably withheld), or unless otherwise contemplated by specifically noted in this AgreementSection 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any of the Seller Subsidiaries to, without the prior written consent of Buyer: (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary any of the Seller Subsidiaries to Seller or to another Subsidiary of Sellerthe Seller Subsidiaries), except that Seller may (i) declare and pay regular quarterly cash dividends on the Seller Common Stock in the aggregate of not more than $2.4 million 0.15 per calendar share on the Seller Common Stock; provided, however, that Seller shall not declare or pay a quarterly period and (ii) distribute management fees dividend for any quarter in which Seller stockholders will be entitled to receive a regular quarterly dividend on the shares of Buyer Common Stock to be issued in the aggregate of not more than $250,000 per calendar quarterly periodMerger; (b) except as specifically contemplated or required by this Agreement, enter into or amend any employment, severance or similar agreement or arrangement with any, any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to rank and file employees consistent with past practice, or (ii) as required by law or contract; provided, that Seller may (i) pay management performance bonuses at times and in amounts consistent with past practice, which shall be in amounts in the aggregate equal to bonuses granted with respect to services in 1996 contract and (iiiii) make severance such increases of which Seller notifies Buyer in writing and retention payments pursuant to all employment, severance or similar agreements or arrangements which Buyer does not reasonably disapprove (in effect as writing) within 10 days of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by receipt of such person, an excess parachute payment under Section 280G of the IRCnotice; (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; orprovided however, that the foregoing shall not apply to the consideration of any inquiry, offer or proposal not solicited by Seller or any Seller Subsidiary, or any of their respective officers, directors, stockholders, agents or affiliates which relates to the possible sale or other disposition of Seller Common Stock or the common stock of any Seller Subsidiary or the possible sale or other disposition of substantially all of Seller's or any Seller Subsidiary's assets to, or merger or consolidation with, another corporation or association (an "Unsolicited Acquisition Proposal") if and to the extent that the Board of Directors of Seller reasonably determines in good faith, after consultation with its financial advisor and counsel to Seller, that failure to consider such Unsolicited Acquisition Proposal could reasonably be expected to constitute a breach of its fiduciary duties to the stockholders of Seller; provided, further, however, that Seller shall give Buyer prompt notice of any Unsolicited Acquisition Proposal and keep Buyer continually and promptly informed regarding the substance thereof and the response of the Board of Directors of Seller thereto; (d) propose or adopt any amendments to its Certificate or Articles of Incorporation or other charter document or Bylaws; or, other than as set forth in Section 4.04 hereof; (e) issue, sell, grant, confer or award any of its Equity Securities (except shares of Seller Common Stock issued upon exercise of Seller Employee Stock Options outstanding on the date of this Agreement) or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or; (f) purchase, redeem, retire, repurchase, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or; (i) without first consulting with Buyerand obtaining the written consent of Buyer (which consent shall not be unreasonably withheld), cause or permit RFSLA to enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) $1,000,000 in respect of residential real estate transactions, equal to or in an amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions 75,000 or in an any amount which, when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of $1,000,000 in respect of Commercial Transactions; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided that in the case of clauses (ii) and -------- (iii) Seller or any Seller Subsidiary may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyer or its designated representative a notice of its intention to make such loan and such information as Buyer or its designated representative may reasonably require in respect thereof and (B) Buyer or its designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $500,000; provided, however, that nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer or obtaining Buyer's prior written consent, to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed, be in excess of the lesser of 5% of such Pre-Existing Facility or $25,000; or;of (h) directly or indirectly (including through its officers, directors, employees, employees or other representatives or the partners of the Selling Stockholder representatives) (including any general or limited partner of the General Partner of the Selling Stockholder)i) initiate, solicit or encourage any discussions, inquiries or proposals with any third party (other than Buyer) relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiary Subsidiaries or the acquisition of Equity Securities of Seller or any of the Seller Subsidiary Subsidiaries or the merger of Seller or any of the Seller Subsidiary Subsidiaries with any person (other than Buyer, Seller or another Seller Subsidiary) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or (ii) provide any such person with non-public information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer orally of all the relevant details details, including, without limitation, the identities of inquiring parties, relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction Transaction; provided, however, the forbearances set forth in this subparagraph (h) shall not apply to the consideration of an Unsolicited Acquisition Proposal if and promptly confirm to the same extent that the Board of Directors of Seller reasonably determines in good faith, after consultation with its financial advisors and counsel to Buyer in writing; orSeller, that failure to consider such Unsolicited Acquisition Proposal could reasonably be expected to constitute a breach of its fiduciary duties to the stockholders of Seller; (i) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyer or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the IRCCode; orprovided, however, that the foregoing shall not apply to the consideration of an Unsolicited Acquisition Proposal if and to the extent that the Board of Directors of Seller reasonably determines in good faith, after consultation with its financial advisors and counsel to Seller, that failure to consider such Unsolicited Acquisition Proposal could reasonably be expected to constitute a breach of its fiduciary duties to the stockholders of Seller; (j) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money, money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, partnership, corporation or other entity or pay without prior approval of Buyer, which shall not be unreasonably withheld, any Merger Fees in excess of the amount set forth on Schedule 2.23; orentity; (k) materially restructure or materially change its investment securities portfolio, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or execute any individual investment transaction transactions of greater than $250,000 for its own account (i) in securities backed by the full faith U.S. Treasury or Federal Agency Securities and credit of the United States or an agency thereof in excess of $1,000,000 and (ii) in any 100,000 for all other investment securities in excess of $500,000; orinstruments; (l) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (m) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act; or (m) enter into, increase or renew any loan or credit commitment (including standby letters of credit) to any executive officer or director of Seller or any of the Seller Subsidiaries, any holder of 10% or more of the outstanding shares of Seller Common Stock, or any entity controlled, directly or indirectly, by any of the foregoing or engage in any transaction with any of the foregoing which is of the type or nature sought to be regulated in 12 U.S.C. Section 371c and 12 U.S.C. Section 371c-1, without first obtaining the prior written consent of Buyer, which consent shall not be unreasonably withheld. For purposes of this subsection (m), "control" shall have the meaning associated with that term under 12 U.S.C. Section 371c.

Forbearances of Seller. Except as set forth on Schedule 4.02 to the extent required ---------------------- by law, regulation or as ---------------------- Regulatory Authority, or with the prior written consent of Buyers (unless otherwise contemplated by specifically noted in this AgreementSection 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any of the Seller Subsidiaries to, without the prior written consent of Buyer: (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary any of the Seller Subsidiaries to Seller or to another Subsidiary of Seller), except that Seller may (i) declare and pay cash dividends on the Seller Common Stock in the aggregate of not more than $2.4 million per calendar quarterly period and (ii) distribute management fees in the aggregate of not more than $250,000 per calendar quarterly periodSubsidiaries); (b) enter into or amend any employment, severance or similar agreement or arrangement with any, any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to rank and file employees consistent with past practice, or (ii) as required by law or contract; provided, that Seller may (i) pay management performance bonuses at times and in amounts consistent with past practice, which shall be in amounts in the aggregate equal to bonuses granted with respect to services in 1996 contract and (iiiii) make severance such increases of which Seller notifies Buyers in writing and retention payments pursuant to all employment, severance or similar agreements or arrangements in effect as which Buyers do not disapprove within 10 days of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by receipt of such person, an excess parachute payment under Section 280G of the IRCnotice; (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation consolida- tion or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; or; (d) propose or adopt any amendments to its Certificate or Articles of Incorporation Incorporation, as the case may be, or other charter document or Bylaws; or; (e) issue, sell, grant, confer or award any of its Equity Securities (except shares of Seller Common Stock issued upon exercise of Seller Employee Stock Options outstanding on the date of this Agreement) or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or; (f) purchase, redeem, retire, repurchase, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or (i) without first consulting with Buyer, enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) $1,000,000 in respect of residential real estate transactions, or in an amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions or in an amount which, when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of $1,000,000 in respect of Commercial Transactions; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided that in the case of clauses (ii) and -------- (iii) Seller or any Seller Subsidiary may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyer or its designated representative a notice of its intention to make such loan and such information as Buyer or its designated representative may reasonably require in respect thereof and (B) Buyer or its designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $500,000; provided, however, that nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer or obtaining Buyer's prior written consent, to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed, be in excess of the lesser of 5% of such Pre-Existing Facility or $25,000; or; (hg) directly or indirectly (including through its officers, directors, employees, employees or other representatives or the partners of the Selling Stockholder representatives) (including any general or limited partner of the General Partner of the Selling Stockholder)i) initiate, solicit or encourage any discussions, inquiries or proposals with any third party (other than Buyers) relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiary Subsidiaries or the acquisition of Equity Securities of Seller or any of the Seller Subsidiary Subsidiaries or the merger of Seller or any of the Seller Subsidiary Subsidiaries with any person (other than Buyer, Seller or another Seller SubsidiaryBuyers) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or (ii) provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer Buyers orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction and promptly confirm the same to Buyer in writing; orTransaction; (ih) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyer Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the IRC; orCode; (ji) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money, money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, partnership, corporation or other entity or pay without prior approval of Buyer, which shall not be unreasonably withheld, any Merger Fees in excess of the amount set forth on Schedule 2.23; orentity; (k) materially restructure or materially change its investment securities portfolio, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or execute any individual investment transaction for its own account (i) in securities backed by the full faith and credit of the United States or an agency thereof in excess of $1,000,000 and (ii) in any other investment securities in excess of $500,000; or (l) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (mj) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act.

Forbearances of Seller. Except as set forth on in Schedule 4.02 ---------------------- ------------- and except to the extent required by law, regulation or as ---------------------- otherwise contemplated by this AgreementRegulatory Authority, or with the prior written consent of Buyers, during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any of the Seller Subsidiaries to, without the prior written consent of Buyer: (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary any of the Seller Subsidiaries to Seller or to another Subsidiary of Sellerthe Seller Subsidiaries), except that Seller may (i) declare and pay its regular annual cash dividends of not more than $6.00 per share on the Seller Common Stock. For any partial year after 1995, Seller shall be permitted to declare and pay dividends equal to $1.50 per share on the Seller Common Stock in for each full calendar quarter ending prior to the aggregate of not more than $2.4 million per calendar quarterly period and (ii) distribute management fees in the aggregate of not more than $250,000 per calendar quarterly periodEffective Time; (b) enter into or amend any employment, severance or similar agreement or arrangement with any, any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation (including bonus payments) to rank and file employees consistent with past practice, or (ii) as required by law or contract; provided, that Seller may (i) pay management performance bonuses at times and in amounts consistent with past practice, which shall be in amounts in the aggregate equal to bonuses granted with respect to services in 1996 contract and (iiiii) make severance such increases of which Seller notifies Buyers in writing and retention payments pursuant to all employment, severance or similar agreements or arrangements in effect as which Buyers do not disapprove within 10 days of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by receipt of such person, an excess parachute payment under Section 280G of the IRCnotice; (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger)combination, any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities (other than the Transaction) or any release or relinquishment of any material contract rights; or; (d) propose or adopt any amendments to its Certificate articles of Incorporation incorporation, association or other charter document or Bylaws; orbylaws; (e) issue, sell, grant, confer or award any of its Equity Securities or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or; (f) purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or; (i) without first consulting with BuyerBuyers, enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in in, any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of $400,000 with respect to commercial transactions (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) construction transactions), $1,000,000 in 350,000 with respect of to residential real estate transactions, or in any amount which, when aggregated with any and all loans or credit commitments of Seller and the Seller Subsidiaries to such person or entity, would be in excess of $350,000; (ii) without first obtaining the written consent of Buyers, Lend to any person or entity in an amount in excess of $500,000 or in any amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions Seller and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions or in an amount which, when aggregated with any and all loans or credit commitments Seller Subsidiaries to such person or entity, would be in excess of $1,000,000 in respect of Commercial Transactions750,000; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; , provided that -------- in the case of clauses (iii) and -------- (iii) Seller or any of the Seller Subsidiary Subsidiaries may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyer Buyers or its their designated representative a notice of its Seller's or Seller Subsidiaries' intention to make such loan and such information as Buyer Buyers or its their designated representative may reasonably require in respect thereof thereof, and (B) Buyer Buyers or its their designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer Buyers or their designated representative of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any of the Seller Subsidiary Subsidiaries (except those denoted "pass" thereon), in an amount in excess of $500,000100,000; provided, however, that -------- ------- nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this AgreementAgreement or, with respect to loans described in clause (i) above, making such loans after consulting with Buyers. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer Buyers or obtaining Buyer's Buyers' prior written consent, to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed, be in excess of the lesser of five percent (5% %) of such Pre-Existing Facility Facilities or $25,000; or; (h) directly or indirectly (including through its officers, directors, employees, employees or other representatives or the partners of the Selling Stockholder representatives) (including any general or limited partner of the General Partner of the Selling Stockholder)i) initiate, solicit or encourage any discussions, inquiries or proposals with any third party (other than Buyers) relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiary Subsidiaries or the acquisition of Equity Securities of Seller or any of the Seller Subsidiary Subsidiaries or the merger of Seller or any of the Seller Subsidiary Subsidiaries with any person (other than Buyer, Seller or another Seller SubsidiaryBuyers) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or (ii) provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer Buyers orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction and promptly confirm the same to Buyer in writing; orTransaction; (i) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyer Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the IRC; orCode; (j) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money, money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, partnership, corporation or other entity or pay without prior approval of Buyer, which shall not be unreasonably withheld, any Merger Fees in excess of the amount set forth on Schedule 2.23; orentity; (k) materially restructure or materially change its investment securities portfolio, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or execute any individual investment transaction for its own account (i) in securities backed by the full faith and credit of the United States or an agency thereof in excess of $1,000,000 and (ii) in any other investment securities in excess of $500,000; or; (l) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (m) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act; or (m) enter into, increase or renew any loan or credit commitment (including standby letters of credit) to any executive officer or director of Seller or any of the Seller Subsidiaries, any Seller shareholder, or any entity controlled, directly or indirectly, by any of the foregoing or engage in any transaction with any of the foregoing which is of the type or nature sought to be regulated in 12 U.S.C. Sec. 371c and 12 U.S.C. Sec. 371c-1, without first obtaining the prior written consent of Buyers, which consent shall not be unreasonably withheld. For purposes of this subsection (m), "control" shall have the meaning associated with that term under 12 U.S.C. Sec. 371c.

Forbearances of Seller. Except as set forth on Schedule 4.02 or as ---------------------- otherwise contemplated by this ---------------------- Agreement, and except to the extent required by law, regulation or Regulatory Authority, or with the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall not and shall not permit any of the Seller Subsidiaries to, without the prior written consent of Buyer: (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a Subsidiary any of the Seller Subsidiaries to Seller or to another Subsidiary of Seller), except that Seller may (i) declare and pay cash dividends on the Seller Common Stock in the aggregate of not more than $2.4 million per calendar quarterly period and (ii) distribute management fees in the aggregate of not more than $250,000 per calendar quarterly periodSubsidiaries); (b) enter into or amend any employment, severance or similar agreement or arrangement with any, any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to rank and file employees consistent with past practice, or (ii) as required by law or contract; provided, that (iii) such increases of which Seller may (i) pay management performance bonuses at times notifies Buyers in writing and in amounts consistent with past practice, which shall be in amounts in Buyers do not disapprove within 10 days of the aggregate equal to bonuses granted with respect to services in 1996 receipt of such notice and (iiiv) make severance and retention payments pursuant to all employment, severance or similar agreements or arrangements in effect as the provisions of the date hereof or subsequent to the date hereof (including, without limitation, all employment contracts) in an aggregate amount not to exceed $5.5 million, subject to cut-back in individual payments, if necessary, except as set forth on Schedule 4.02B to assure that no payment to any person will be, when aggregated with all other payments and benefits to be received by such person, an excess parachute payment under Section 280G of the IRC;5.10 hereof; ------------ (c) authorize, recommend, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; or; (d) propose or adopt any amendments to its Certificate of Incorporation or other charter document or Bylaws; orBy-Laws; (e) issue, sell, grant, confer or award any of its Equity Securities Securities, except that the Seller may issue shares of Seller Common Stock upon exercise of the Seller Stock Options outstanding on the date of this Agreement and pursuant to the option granted to Mercantile in connection with the transaction contemplated by this Agreement, or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; or; (f) purchase, redeem, retire, repurchase, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; or; (ig) without first consulting with Buyerand obtaining the written consent of Mercantile, cause or permit HomeBanc to enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of (A) $1,000,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transactions") and (B) $1,000,000 in respect of residential real estate transactions, equal to or in an amount which, or when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $1,000,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $1,000,000 in respect of Commercial Transactions 300,000 or in an any amount which, when aggregated with any and all loans or credit commitments of Seller and the Seller Subsidiaries to such person or entity, would be equal to or in excess of $1,000,000 in respect of Commercial Transactions500,000; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided provided, however, that in the case of clauses (ii) and -------- (iii) Seller or any of the Seller Subsidiary Subsidiaries may make any such loan or credit commitment in the event (A) Seller or any Seller Subsidiary has delivered to Buyer Buyers or its their designated representative a notice of its intention to make such loan and such information as Buyer Buyers or its their designated representative may reasonably require in respect thereof and (B) Buyer Buyers or its their designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two (2) business days following the delivery to Buyer Buyers or their designated representative of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $500,000; providedprovided further, however, that nothing in this -------- ------- paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyer Buyers or obtaining Buyer's Buyers' prior written consent, to cause or permit HomeBanc to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed, be in excess of the lesser of 510% of such Pre-Pre- Existing Facility Facilities or $25,000; or; (h) directly or indirectly (including through its officers, directors, employees, employees or other representatives or the partners of the Selling Stockholder representatives) (including any general or limited partner of the General Partner of the Selling Stockholder)i) initiate, solicit or encourage any discussions, inquiries or proposals with any third party (other than Buyers) relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiary Subsidiaries or the acquisition of Equity Securities of Seller or any of the Seller Subsidiary Subsidiaries or the merger of Seller or any of the Seller Subsidiary Subsidiaries with any person (other than Buyer, Seller or another Seller SubsidiaryBuyers) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or (ii) provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer Buyers orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction and promptly confirm the same to Buyer in writing; orTransaction; (i) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyer Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or Agreement, (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization reorganiza- tion within the meaning of Section 368 of the IRC; orCode or (C) prevent the Merger from qualifying for pooling-of-interests accounting treatment; (j) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money, money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, partnership, corporation or other entity or pay without prior approval of Buyer, which shall not be unreasonably withheld, any Merger Fees in excess of the amount set forth on Schedule 2.23; orentity; (k) materially restructure or materially change its investment securities portfolio, without prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or execute any individual investment transaction transactions of greater than $2,000,000 for its own account (i) in securities backed by the full faith U.S. Treasury or Federal Agency Securities and credit of the United States or an agency thereof in excess of $1,000,000 and (ii) in any 250,000 for all other investment securities in excess of $500,000; orinstruments; (l) make any awards or agree to make any awards under Seller Employee Plans which have not been previously disclosed to Buyer in Section 2.17A; or (m) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act; or (m) enter into, increase or renew any loan or credit commitment (including standby letters of credit) to any executive officer or director of Seller or any of the Seller Subsidiaries, any holder of 10% or more of the outstanding shares of Seller Common Stock, or any entity controlled, directly or indirectly, by any of the foregoing or engage in any transaction with any of the foregoing which is of the type or nature sought to be regulated in 12 U.S.C. (S) 371c and 12 U.S.C. (S) 371c-1, without first obtaining the prior written consent of Buyers, which consent shall not be unreasonably withheld. For purposes of this subsection (m), "control" shall have the meaning associated with that term under 12 U.S.C. (S) 371c.