IN RE METROPOLITAN MORTGAGE SECURITIES CO., INC. (Bankr.E.D.Wash. 2004)

PATRICIA WILLIAMS, Chief Judge, Bankruptcy

THIS MATTER having come on for consideration before the Court upon the motion (the "BNYW Motion") of BNY Western Trust Company ("BNYW") for entry of an order to compel the above referenced debtors, Metropolitan Mortgage Securities Co., Inc. ("Metropolitan") and Summit Securities, Inc. ("Summit") (collectively Metropolitan and Summit will be referred to as "the Debtors") to assume or reject the pre-petition custody agreements that Metropolitan and Summit each executed with BNYW (respectively the "Metropolitan Custody Agreement" and the "Summit Custody Agreement" and collectively the "Custody Agreements") pursuant to which BNYW acts as a custodian and securities intermediary as to certain collateral (the "Pledged Collateral") pledged in favor of Bank of America, N.A. ("B of A"), the Debtors' pre-petition and post-petition depository bank, and the Court having reviewed the BNYW Motion, the Custody Agreements attached as Exhibits A B hereto, the Debtors' objection to the BNYW Motion, the stipulation (the "Stipulation") by and between BNYW, by and through its respective counsel AterWynne, LLP, Metropolitan by and through its respective counsel of record, Lane Powell Spears Lubersky LLP and Davidson and Medeiros, Summit by and through its counsel of record, Elsaesser Jarzabek Anderson Marks Elliot McHugh, Chartered and Kutak Rock, LLP, the Metropolitan Creditors' Committee, by and through its counsel of record, Randall Danskin and the Summit Creditors' Committee by and through its counsel of record, Southwell O'Rourke with respect to the rejection and termination of the Custody Agreements and the payment of fees associated therewith, the Motion of the Debtors for entry of this stipulated order and the Declaration of Mary Jo Heston in support thereof, and based on the foregoing, IT IS NOW, THEREFORE,

ORDERED that the Custody Agreements are rejected and terminated subject to the conditions precedent set forth in the Stipulation; and it is

FURTHER ORDERED that the Debtors may pay to BNYW its claims for outstanding attorneys fees and costs from Metropolitan in the amount of $10,860.53 and from Summit outstanding fees and costs in the amount of $5,812.54, plus additional fees and costs incurred subsequent to the execution of the stipulation not to exceed $750.00 for Metropolitan and $750.00 for Summit (collectively all such amounts for BNYW's attorneys fees and costs shall be referred to as the "Attorneys' Fees Claims"); and it is

FURTHER ORDERED that upon payment of BNYW's Attorneys Fees Claims, BNYW will use its best efforts to effectuate a transfer of the Pledged Assets to the New Custodian on September 1, 2004 or as soon thereafter as possible; and it is

FURTHER ORDERED that upon payment of the BNYW's Attorneys Fees Claims BNYW's Claims shall be deemed to be withdrawn and disallowed.