Opinion
Jointly Administered Under: No. 04-00757-W11, Related Docket No, Docket No. 2055 [Motion for Order];, Docket Nos. 2056 [Declaration of Lyons];, 2057 [Declaration of Bauer];, 2058 [Notice of Motion];, 2282 [Request for Entry of Order].
March 8, 2005
Barry W. Davidson, Robert S. Delaney, DAVIDSON MEDEIROS, Spokane, Washington, and Charles R. Ekberg, Susan Brye Jahnke, Mary Jo Heston, LANE POWELL PC, Seattle, Washington, Attorneys for Metropolitan Mortgage Securities Co., Inc.
THIS MATTER having came before the Court upon the Motion of Metropolitan Mortgage Securities Co., Inc. ("Metropolitan"), by and through its counsel of record, for an order: (1) pursuant to 11 U.S.C. §§ 105(a) and 363 and Fed.R.Bankr.P. 6004 and 9019 approving the Settlement and Deed in Lieu of Foreclosure Agreement (the "Settlement Agreement") with Western United Life Assurance Company ("WULA"), in receivership for purposes of rehabilitation, on the terms set forth therein; (2) pursuant to 11 U.S.C. § 105(a) and 363 and Fed.R.Bankr.P. 6004 authorizing the execution of non-merger Deed in Lieu of Foreclosure as to the Madsen Court Property; (3) pursuant to 11 U.S.C. § 365 and Fed.R.Bankr.P. 6006 authorizing assumption by Metropolitan of certain leases and executory contracts that relate to Madsen Court and/or its operation and assignment thereof to WULA; and (4) pursuant to 11 U.S.C. § 105(a), authorizing modification of exclusive sale listing agreement with Kiemle and Hagood Company (the "Motion"); having reviewed the Motion and the Declarations of Maggie Lyons (the "Lyons Declaration") and Todd Bauer filed in support thereof; having determined that notice of the Motion was proper and that good cause exists for the relief requested in the Motion, and having determined that no response or objection to the Motion was filed; NOW THEREFORE,
IT IS HEREBY ORDERED:
1. The Motion is GRANTED in its entirety;
2. The Settlement Agreement, a copy of which is attached as Exhibit "1" to the Lyons Declaration, is approved and Metropolitan is authorized to execute and deliver to WULA the Settlement Agreement;
3. Metropolitan is authorized to execute any and all documents and take any and all actions needed to effectuate the transactions contemplated by the Settlement Agreement including, without limitation: (a) executing and delivering to WULA a Quitclaim Deed in Lieu of Foreclosure in favor of WULA as to Madsen Court; (b) executing and delivering to WULA a Real Estate Tax Affidavit; (c) executing and delivering to WULA an acknowledged Bill of Sale conveying to WULA personal property at Madsen Court; (d) executing and delivering to WULA an acknowledged Assignment of Leases and Rents assigning to WULA all rights of Metropolitan under the leases set forth in Exhibit C to the Settlement Agreement and all associated rents and security deposits; and (e) executing and delivering to WULA an acknowledged Assignment of Contracts and Intangible Property conveying to WULA all rights of Metropolitan under the contracts set forth in Exhibit D to the Settlement Agreement and under and to certain general intangibles relating to the use and operation of Madsen Court.
4. Metropolitan is authorized to, and hereby does, assume the leases and executory contracts (collectively, the "Assigned Contracts") identified in the Motion and on Exhibits C and D to the Settlement Agreement and to assign the Assigned Contracts to WULA in accordance with the terms contained in the Settlement Agreement;
5. No cure payments are payable with respect to the Assigned Contracts as of February 21, 2005; and
6. Metropolitan is authorized to modify its Exclusive Sale Listing Agreement with Kiemle and Hagood in accordance with the terms of the Modification of Exclusive Sale Listing Modification, a copy of which is attached to the Lyons Declaration as Exhibit "4."