AMENDED ORDER FOR THE INTERLOCUTORY SALE OF THE M/V SHAMROCK
Before the Court is the Expedited Motion of Fortis Bank(Nederland) N.V. for Interlocutory Sale of the M/V Shamrock(Docket # 70). The Court received status reports from the partiesand held a hearing on this request for relief on September 13,2004.
Pursuant to Supplemental Rule E(9)(b) and for good cause shownin accordance with Supplemental Rule E(9)(b)(i)(B)&(C), the Courthereby ORDERS that the M/V Shamrock be sold by the United StatesMarshal at public auction and that the proceeds from the sale bedeposited in the registry of the Court to await further order ofthis Court.
The United States Marshal is hereby ORDERED to utilize thefollowing procedures in conducting the sale: Location of the Sale & Prior Notice
The sale shall be held by public auction to be conducted onFriday, November 12, 2004 at 2:00 p.m. The location of theauction shall be: the steps of the Edward T. Gignoux FederalCourthouse, located at 156 Federal Street, Portland, Maine, andin the case of inclement or cold weather the auction may re reconvened, at the Marshal's solediscretion, to a nearby indoor location where cell phonereception and use will allow for participants in the auction toremain in contract with their principals during the course of thebidding. The Marshal shall make provision for notice of thechanged location for any latecomers to the auction.
Prior to the public auction, a Notice of United StatesMarshal's Sale shall be published in the following publications: (1) The Portland Press Herald, (2) The Wall Street Journal, (3) The London Times, and (4) The New York Times.
All Notices shall be published within twenty-one (21) daysprior to the sale. As long as the publication schedule permits,the Notice shall run in each publication at least three (3) timesprior to sale. Such Legal Notice shall include all of theinformation contained in the Notice of United States Marshal'sSale attached to this Order.
Prior to the public auction, the United States Marshal may, incoordination with the substitute custodian, arrange for viewingof the ship by potential bidders over a set three (3) day "openhouse" period from October 26-28, 2004, which dates are subjectto minor modification for the convenience of the Marshal and thesubstitute custodian. At the discretion of the substitutecustodian, persons desiring to board the vessel for such viewingmay be required to execute documents that bar or limit theirright to recover for personal injury incurred in boarding and/orviewing the ship.
Conduct of the Sale
The sale shall be conducted by the Marshal with the assistanceof Thomas Saturley of Tranzon Auction Properties, Portland,Maine, as a public auction in United States Dollars (USD), with astarting bid of $5,000,000.00 and bid increments of $50,000.00.
In order to participate in the bidding, the bidder must tendera certified check for $200,000.00 payable to the United StatesMarshals Service to be held by the Marshal during the auction,with said check to be returned to the bidder at the end of theauction if the bidder is not the successful bidder. Within five(5) business days, the successful bidder shall increase theamount on deposit with the United States Marshals Service to tenpercent (10%) of the successful bid. The remaining balance shall be paid within ten(10) business days following the approval of the bid by the Courtor thirty (30) calendar days from the auction dated, whichever islater. All payments by the successful bidder shall be made bywire transfer, certified check or cashier's check.
Any credit bids by Fortis Bank will also be accepted, providedthat Fortis in addition shall pay or make provision for thoseclaims then on file in this litigation that are alleged to besuperior in priority to Fortis' preferred ship mortgage pursuantto 46 U.S.C. § 31326, such amounts to be paid either in cash orby deposit of security in the Court registry.
The successful bidder shall be required to pay the balancewithin three (3) days after the day on which the bid is acceptedand shall be responsible for costs of keeping the vessel from thedate that the bid is accepted.
If the successful bidder does not pay the balance of thepurchase price within the time allowed, the bidder will be deemedto be in default. In such a case, the Marshal may accept thesecond highest bid or arrange a new sale. The defaulting bidder'sdeposit shall be forfeited and applied to any additional costsincurred by the Marshal because of the default, the balance beingretained in the registry of the Court awaiting its order.
Objection to and Confirmation of Sale
Any interested person may object to the sale by filing awritten objection within three (3) days following the date ofauction and acceptance of the successful bid. Any objection shallbe served on all parties of record, the successful bidder and theUnited States Marshal. Anyone filing an objection is required todeposit with the United States Marshals Service a sum that issufficient to pay the expense of maintaining the ship for atleast seven (7) days. Payment to the Marshal shall be made bywire transfer, certified check or cashier's check.
The sale shall be confirmed by Order of this Court within five(5) business days but no sooner that three (3) business daysafter the sale unless an objection to the sale has been filed, inwhich case the Court shall hold a hearing on the confirmation ofthe sale. The United States Marshal shall transfer title to thepurchaser upon order of the Court and receipt of the entireamount due under the bid.
If an objection to the sale is sustained, sums deposited by thesuccessful bidder will be returned forthwith. The sum depositedby the objector will be applied to pay the fees and expenses incurred by the Marshal in keeping the property until itis resold, and any remaining balance shall be returned to theobjector. The objector will be reimbursed for the expense ofkeeping the vessel from the proceeds of the subsequent sale.
Deposit of Proceeds from the Sale
All proceeds from the sale shall be forthwith paid into theregistry of the Court and shall be disposed of by further orderof the Court upon resolution of the merits of this litigation andin accordance with the relevant law.