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EXHIBIT 10.28
AGREEMENT OF ASSIGNMENT AND ASSUMPTION
THIS
AGREEMENT OF ASSIGNMENT AND ASSUMPTION (the "Assignment Agreement")
is
dated effective as of the 26th day of February, 2005, by and
between Ronald A.
Hirsch, an individual residing in the county of Orange, State of
California
("Hirsch") and Stephen D. Seymour, an individual residing in the
county of
Baltimore, State of Maryland ("Seymour", and collectively with
Hirsch, the
"Assignors"), on the one hand, and TMD Acquisition Corporation, a
Tennessee
corporation (the "Assignee") on the other hand.
RECITALS
WHEREAS, since May 20, 2004, Nord Resources Corporation ("Nord")
has been
pursuing an opportunity (the "Opportunity") to acquire certain
assets from
ASARCO Incorporated, a New Jersey corporation ("ASARCO"), which
assets comprise
the entire Tennessee Mines Division zinc business as conducted by
ASARCO and
consisting of the Young, Immel and Coy mines, the Young
Concentrator and the
Middle Tennessee exploration properties, including in all cases the
operations,
impoundments, processing and other facilities incidental and
ancillary to each
of the foregoing (collectively, the "TMD Assets");
WHEREAS, as a result of the development efforts of Nord, Nord has
been
selected by ASARCO as the primary candidate it will negotiate with
for the
acquisition of the TMD Assets, and as to which Nord has received
versions of a
draft Asset Purchase Agreement (the "Purchase Agreement") for
negotiation and
execution;
WHEREAS, Nord has entered into a bridge loan agreement with
Regiment
Capital III, L.P., a Delaware limited partnership (the "Lender"),
pursuant to
which Nord entered into, executed and delivered to Lender a
Promissory Note, a
Security Agreement, a Pledge and Security Agreement, and certain
other documents
(collectively, the "Loan Documents"), which Loan Documents contain
certain
affirmative and negative covenants which with Nord must abide
during the
pendency of the bridge loan, and which, among other things, will
restrict Nord
from using its capital resources to make an investment in, or
conduct any
business with respect to, the TMD Opportunity without its prior
written consent
(and, as to which, the Lender has advised this Board of Directors
of Nord that
it will not consent to Nord undertaking the TMD Opportunity at this
time or
within the foreseeable future);
WHEREAS, on October 14, 2004, the Assignors assumed from Nord all
of Nord's
rights and interests in the TMD Opportunity, including without
limitation under
the Purchase Agreement (collectively, the "TMD Rights"), to fund
such further
development expenses as are necessary to complete the acquisition
of and exploit
commercially the TMD Opportunity independent of Nord (the
"Post-Development
Expenses"), and to "reserve" the place of Nord with respect to such
TMD
Opportunity
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until such time as the Lender may consent to its re-acquisition of
the TMD
Rights from, and as further developed by, the Assignee;
WHEREAS, on October 14, 2004, in consideration for the assignment
of the
TMD Rights to the Assignors by Nord, the Assignors entered into an
Agreement of
Option and Right of First Refusal with Nord, attached hereto as
Exhibit A and
made an integral part hereof (the "Option Agreement"), and provided
to Nord a
right of first refusal and option to acquire (the "TMD Option
Rights") the TMD
Rights from the Assignors upon the payment to the Assignors of
the
Post-Development Expenses plus such premium for taking the risks of
development
of the TMD Opportunity as the parties may mutually agree (and as
established as
fair and reasonable to Nord by an independent person with
experience in the
valuation of business opportunities in the mining industry
generally)
("Premium");
WHEREAS, the Assignee has expressed its willingness to assume from
the
Assignors all of their rights and interests in the TMD Rights, to
fund the
Post-Development Expenses, and to "reserve" the place of Nord with
respect to
such TMD Opportunity until such time as the Lender may consent to
Nord's
re-acquisition of the TMD Rights from, and as further developed by,
the
Assignee; and
WHEREAS, in consideration for the assignment of the TMD Rights to
the
Assignee as contemplated herein, the Assignee shall assume all of
Assignors'
duties and obligations under the Option Agreement.
1. ASSIGNMENT OF RIGHTS AND ASSUMPTION OF OBLIGATIONS
(a)
ASSIGNMENT OF RIGHTS. Assignors hereby assign all of their right,
title
and interest in and to the TMD Rights to the Assignee. At such time
as Nord
exercises the TMD Option Rights, all of Assignee's right, title and
interest in
and to the TMD Rights shall be transferred to Nord, and, in such
event and at
such time, the Assignee agrees to execute such documents as shall
be necessary
and reasonably requested by Nord in confirmation of the foregoing
provisions of
this Section 1(a).
(b)
ASSUMPTION OF OBLIGATIONS. The Assignee hereby accepts the
assignment
of the TMD Rights and agrees to undertake and assume the
performance of the
duties and obligations of Assignors thereunder, accruing or arising
after the
date hereof (the "Obligations").
(c)
Each party hereto agrees that it shall execute or cause to be
executed
promptly after request by the other, such documents or instruments
as may be
reasonably required for the purpose of or in connection with the
assignment by
the Assignors of the TMD Rights or the assumption by the Assignee
of the
Obligations pursuant to this Assignment Agreement.
(d)
Notwithstanding anything contained herein, to the extent the
consent of
any third party is required as a condition to the assignment of the
TMD Rights,
the
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Assignment, insofar as it encompasses such TMD Rights, shall not be
effective
unless and until such consent shall have been obtained and
Assignors shall: (a)
until such time as such consent shall have been obtained, to the
extent possible
obtain for the Assignee the benefits of such TMD Rights as though
the Assignment
had been effective with respect to such TMD Rights; and (b) be
obligated to
obtain the consent of such third party. At such time as Assignors
shall obtain
the required consent to the assignment of any TMD Rights retained
by Assignors
pursuant to Section 1(a), the Assignment shall immediately b
