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EXHIBIT 10.24
AGREEMENT OF ASSIGNMENT AND ASSUMPTION
THIS
AGREEMENT OF ASSIGNMENT AND ASSUMPTION (the "Assignment Agreement")
is
dated effective as of the 14th day of October, 2004, by and between
Nord
Resources Corporation, a Delaware corporation (the "Assignor"), on
the one hand
and 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 "Assignees") on the other hand.
RECITALS
WHEREAS, since May 20, 2004, the Assignor 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 the Assignor, the
Assignor has been selected by ASARCO as the primary candidate it
will negotiate
with for the acquisition of the TMD Assets, and as to which the
Assignor has
received versions of a draft Asset Purchase Agreement (the
"Purchase Agreement")
for negotiation and execution;
WHEREAS, the Assignor has entered into a bridge loan agreement
with
Regiment Capital III, L.P., a Delaware limited partnership (the
"Lender"),
pursuant to which the Assignor 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 the
Assignor must abide during the pendency of the bridge loan, and
which, among
other things, will restrict the Assignor 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 the Assignor that it will not
consent to the
Assignor undertaking the TMD Opportunity at this time or within the
foreseeable
future);
WHEREAS, the Assignees have expressed their willingness to assume
from the
Assignor all of its 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
the Assignor (the "Post-Development Expenses"), and to "reserve"
the place of
the Assignor with respect to such
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TMD Opportunity until such time as the Lender may consent to its
re-acquisition
of the TMD Rights from, and as further developed by, the Assignees;
and
WHEREAS, in consideration for the assignment of the TMD Rights to
the
Assignees as contemplated herein, the Assignees shall provide to
the Assignor a
right of first refusal and option to acquire (the "TMD Option
Rights") the TMD
Rights from the Assignees upon the payment to the Assignees 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 the Assignor by an independent person with
experience in
the valuation of business opportunities in the mining industry
generally)
("Premium").
1. ASSIGNMENT OF RIGHTS AND ASSUMPTION OF OBLIGATIONS
(a)
ASSIGNMENT OF RIGHTS. Assignor hereby assigns all of its right,
title
and interest in and to the TMD Rights to the Assignees unless, and
until such
time as, the Assignor shall exercise the TMD Option Rights acquire
the TMD
Rights from the Assignees pursuant to the Agreement of Option and
Right of First
Refusal, attached hereto as Exhibit A, and made an integral part
hereof (the
"Option Agreement"). At such time as the Assignor exercises the TMD
Option
Rights, all of Assignees' right, title and interest in and to the
TMD Rights
shall revert back to the Assignor, and, in such event and at such
time, the
Assignees agree to execute such documents as shall be necessary and
reasonably
requested by the Assignor in confirmation of the foregoing
provisions of this
Section 1(a).
(b)
ASSUMPTION OF OBLIGATIONS. The Assignees hereby accept the
assignment
of the TMD Rights and agree to undertake and assume the performance
of the
duties and obligations of Assignor 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 Assignor of the TMD Rights or the assumption by the Assignees
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 Assignment, insofar as it encompasses such TMD Rights, shall
not be
effective unless and until such consent shall have been obtained
and Assignor
shall: (a) until such time as such consent shall have been
obtained, to the
extent possible obtain for the Assignees 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
Assignor shall obtain the required consent to the assignment of any
TMD Rights
retained by Assignor pursuant to Section 1(a), the Assignment shall
immediately
become effective in accordance with the terms of this Assignment
Agreement
without the need
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for further action or further documentation by either party hereto.
This Section
1(d) shall not apply to any transfer that does not r
