California First National Bank and The Government of Jamaica filed with the U.S. Bankruptcy Court separate objections to Noranda Aluminum’s motion for (i) an order establishing bidding procedures for the sale of the upstream business and (ii) an order approving the sale of the upstream business.
The Government of Jamaica asserts, “Under Jamaican law, no transfer is effective unless such application is granted regardless of whether the contract is assumed or assigned. Paragraph 2.5 of the Form APA similarly provides that, even if assignment is allowed under sections 363 or 365, the Debtors make no attempt to transfer a contract if doing so without consent would constitute a violation of a legal requirement or a breach of contract. In addition, NBL has defaulted under at least three of the St. Ann Contracts (the Establishment Agreement, the Amendment to Establishment Agreement, and the Deed of Partnership), but has incorrectly listed the cure amounts under those agreements as $0.00.”
The objection continues, “The correct cure amount for all three is no less than $16,148,546.90….Moreover, it is doubtful whether the Debtors or the eventual assignee of the St. Ann Contracts can provide the GOJ with adequate assurance of future performance as is required for assumption after default under section 365(b)(1)(C) of the Bankruptcy Code and as a condition of assignment, with or without default, under section 365(f)(2)(B).”
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