Loans in Litigation. (a) (i) With respect to any Loan that is the subject of any type of pending litigation as of the Closing Date that consists solely of claims or actions based upon, arising out or involving Excluded Liabilities (“Excluded Liabilities Litigation”), the Company shall have no obligation to substitute its counsel to represent the Company’s interests in the Excluded Liabilities Litigation. In such case, the Initial Member shall retain all rights and obligations, and shall remain the real party-in-interest, with respect to and shall retain control over the Excluded Liabilities Litigation. With respect to any Loan that is the subject of any type of pending litigation that consists of both Excluded Liabilities Litigation and other claims or actions, that portion of any litigation that consists of Excluded Liabilities Litigation shall be bifurcated from such other claims or actions, with the Initial Member retaining all rights and obligations, and remaining the real party-in-interest, with respect to and shall retain control over the Excluded Liabilities Litigation and the Company substituting itself as the real party in interest and taking control of the remaining claims in the litigation as is provided otherwise in this Section 4.5. The Initial Member shall pay all of the costs and expenses incurred by it in connection with any such Excluded Liabilities Litigation, including all legal fees and expenses and court costs. The Initial Member’s determination whether or not pending litigation consists of Excluded Liabilities Litigation and the extent to which pending litigation consists of both Excluded Liabilities Litigation and other claims or actions shall be conclusive and binding for all purposes with respect to this Agreement.
Loans in Litigation. (a) With respect to any Loans that, at the Closing Date, are subject to any type of pending litigation that is listed on Schedule 2.01(c) or of which the Company has received written notice of from the Initial Member, the Company shall notify the FDIC’s Regional Counsel, 0000 Xxxxx Xxxxxx, Dallas, Texas 75201, within thirty (30) Business Days after the Closing Date, or within thirty (30) Business Days after receiving such written notice, as the case may be, of the name of the attorney selected by the Company to represent the Company’s interests in the litigation. The Company shall, within thirty (30) Business Days after the Closing Date, or within thirty (30) Business Days after receiving the written notice described above, as the case may be, notify the clerk of the court or other appropriate official and all counsel of record that ownership of the Loan was transferred from the Initial Member to the Company. Subject to the provisions of Section 4.04(c) and 4.04(d), the Company shall have its attorney file appropriate pleadings and other documents and instruments with the court or other appropriate body within thirty five (35) Business Days after the Closing Date, or within thirty (30) Business Days after receiving the written notice described above, as the case may be, substituting the Company’s attorney for the Initial Member’s attorney, removing the Initial Member and IndyMac Federal (or any predecessor-in-interest) as a party to the litigation and substituting the Company as the real party-in-interest. Nothing contained in this Agreement shall preclude the Company from retaining the same attorney retained by the Initial Member (or the Failed Thrift) to handle litigation with respect to the Loans, provided, that, with respect to litigation referred to in Section 4.04(c), the Company shall not retain the same counsel that represents the Initial Member in connection with such litigation unless the FDIC’s Regional Counsel (referred to above) agrees in writing to such dual representation. Except as otherwise provided in Section 4.04(b) (and the Company’s compliance with its obligations therein), in the event the Company fails to comply with this Section 4.04(a) within thirty five (35) Business Days after the Closing Date, or within thirty (30) Business Days after receiving the written notice described above, as the case may be, (1) the Initial Member may, but shall have no obligation to, continue to pursue or defend such litigation on behalf of the Company ...
Loans in Litigation. With respect to any Loan sold pursuant to this Agreement, which is the subject of any type of pending litigation, Buyer shall notify Seller's Regional Counsel, 1910 Pacific Avenue, Dallas, Texxx 00000, xxxxxx xxxxxxx (00) Xxxxxxxx Days of the Loan Sale Closing Date of the name of the attorney selected by Buyer to represent Buyer's interests in the litigation. Buyer shall, within fifteen (15) Business Days of the Loan Sale Closing Date, notify the clerk of the court or other appropriate official and all counsel of record that ownership of the Loan was transferred from Seller to Buyer. Buyer shall have its attorney file appropriate pleadings and other documents and instruments with the court or other appropriate body within twenty (20) Business Days of the Loan Sale Closing Date, substituting Buyer's attorney for Seller's attorney and also removing Seller as a party to the litigation and substituting Buyer as the real party-in-interest. Except as provided in the next succeeding sentence, should Buyer fail to comply with the provisions of this section within twenty (20) Business Days after the Loan Sale Closing Date, Seller may, at its option, dismiss with or without prejudice or withdraw from, any such pending litigation. In the event that Buyer shall be unable, as a matter of applicable law, to cause Seller to be replaced by Buyer as party-in-interest in any such litigation, Buyer shall provide to Seller's Regional Counsel at the address specified above within twenty (20) Business Days of the Loan Sale Closing Date a legal opinion of Buyer's legal counsel, qualified in the relevant Foreign Jurisdiction, to such effect and stating the reasons for such failure. In such event, (i) Buyer shall Federal Deposit Insurance Corporation Reliance Bank Loan Sale Agreement White Plains, NY Version 1.4 cause its attorney to conduct such litigation at Buyer's sole cost and expense; (ii) Buyer shall cause the removal of Seller and substitution of Buyer as party-in-interest in such litigation at the earliest time possible under applicable law; (iii) Buyer shall use its best efforts to cause such litigation to be resolved by judgment or settlement in as reasonably efficient a manner as practical; (iv) Seller shall cooperate with Buyer and Buyer's attorney as reasonably required in Seller's sole judgment to bring such litigation or any settlement relating thereto to a reasonable and prompt conclusion; (v) no settlement shall be agreed upon by Buyer or its agents or counsel wi...
