December 3, 2020 – The Court hearing the Bouchard Transportation Co. cases issued an order approving sale procedures for the proposed sale of a 2018 Gulfstream G650 aircraft and related equipment [Docket No. 282]. The Debtors had filed an emergency motion requesting authority to proceed with the sale, citing concerns that potential purchasers needed clarity that a sale could be closed by year end in order to meet tax planning requirements.

The order states, "The Debtors are authorized to sell the Aircraft, along with all of the furniture, fixtures and equipment therein, free and clear of all liens, encumbrances, pledges, mortgages, deeds of trust, security interests, claims, leases, charges, options, rights of first refusal, easements, servitudes, proxies, voting trusts or agreements, transfer restrictions under any agreement or other interests, in accordance with the following procedures:

• Both the Purchase Agreement and the Sale Order shall be filed and served upon at least five days’ notice, during which time all parties in interest will have an opportunity to review, comment on and, if necessary, formally object to the proposed sale transaction.
• If no party in interest objects to the proposed sale transaction, the Court may enter the proposed form of sale order without a hearing.
• If a party in interest timely objects to the proposed sale transaction, any hearing on such objection shall be scheduled, subject to the Court’s availability, on no more than one day advance notice from the filing of such objection."

Background

In pressing for an order that would allow a sale to close by year end, the Debtors noted in their requesting motion [Docket No. 263] that there has been concern expressed by potential bidders regarding the fact that the aircraft is being sold as part of a Chapter 11 process and that, as such, a sale by year end could not be assured. The Debtors note that several potential bidders have already withdrawn from the marketing process to pursue sales of other aircraft being sold by non-bankrupt entities, with those parties citing their tax planning as requiring a certain sale during 2020. 

The motion states, “By establishing the Sale Process in advance, potential purchasers will have certainty regarding the path forward for the benefit of all parties in interest….

[p]rior to the Petition Date the Debtors, with the assistance of their Aircraft broker Avpro, Inc., (‘Avpro’ or the ‘Broker’) commenced a process to market and sell the Aircraft. Those efforts continued into the postpetition period and led to multiple indications of interest in excess of the unpaid obligations in respect of the related Fortress Aircraft Loan with approximately $25 million of principal outstanding…. More recently, the Debtors and their advisors have advanced to definitive documents with certain potential purchasers. Such potential purchasers have made abundantly clear that, for tax planning and other legitimate business purposes, it is paramount for them to close a sale transaction in the 2020 calendar year.

Notwithstanding the Debtors’ efforts to inform these same potential purchasers of the expedited processes with which the Debtors can seek relief if the facts and circumstances so warrant, and the benefits associated with a ‘free and clear’ sale order, such potential purchasers have expressed substantial concerns regarding the chapter 11 process and the Debtors’ ability to close a transaction before year end. At least two potential purchasers have disengaged with the Debtors on such basis after submitting an otherwise competitive indication of interest. On information and belief, such potential purchasers are inclined to do so because there are alternative sellers — ones that are not operating as debtors-in-possession inside chapter 11 — of comparable aircraft actively marketing their assets.

The Debtors believe that establishing Court-approved marketing procedures will maximize the chances that they are able to monetize the value of the Aircraft at the best possible price for the benefit of their estates. Such a sale transaction would allow the Debtors to pay down their secured debt obligations, eliminate insurance, maintenance and storage costs associated with the Aircraft, and generate incremental liquidity for their estates. The proposed procedures will enable the Debtors to secure the best offer for the Aircraft and the value-maximizing outcome for the estates. As shown above, the marketing process to date has been robust. But coupled with the clarity of Court-approved procedures, that process is likely to yield even higher and better offers that are capable of closing. The Debtors submit the proposed procedures appropriately balance the Debtors’ interest in maximizing the value of their estate with other parties’ legitimate due process rights.”

About the Debtors

According to the Debtors: “Founded in 1918, the Company’s first cargo was a shipment of coal.  By 1931, Bouchard acquired its first oil barge. Over the past 100 years and five generations later, Bouchard has expanded its fleet, which now consists of 25 barges and 26 tugs of various sizes, capacities and capabilities, with services operating in the United States, Canada, and the Caribbean. Bouchard remains dedicated to continuing the rich heritage of barging expertise and family pride well into the future.”

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