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EXHIBIT 4.30
ENVIRONMENTAL INDEMNITY AGREEMENT
(JOHNSON CAMP)
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "AGREEMENT") is made by
NORD
RESOURCES CORPORATION, a Delaware corporation and successor by
merger to NORD
COPPER CORPORATION whose address is P.O. Box 384, Dragoon, AZ 85609
("NORD") in
favor of NEDBANK LIMITED, a limited liability company organized
under the laws
of the Republic of South Africa (the "LENDER").
WHEREAS, Lender has made a loan in the principal amount of
$3,900,000 (as
amended, supplemented, refinanced, renewed, refunded or otherwise
modified from
time to time, the "Loan") to Nord represented by that certain
secured promissory
note, dated as of even date herewith (as amended, supplemented or
otherwise
modified from time to time, the "NOTE"), pursuant to which Nord has
agreed,
among other things, to make the full and punctual payment and
performance when
due of the obligations and liabilities of Nord, whether direct or
indirect,
absolute or contingent, due or to become due, or existing now or
prior to the
date hereof or hereafter incurred, which may arise under, out of,
or in
connection the Note and any other agreements relating to the Loan
(together with
any and all other obligations arising under the Loan, the
"OBLIGATIONS");
WHEREAS, contemporaneously herewith and as required by the Note,
and the
other transaction documents executed by the parties in connection
with the Note
(collectively with the Note, the "LOAN DOCUMENTS"), Nord is
delivering to Lender
a Deed of Trust, Assignment of Rents, Security Agreement and
Fixture Filing
(collectively, the "DEED OF TRUST"), for the purpose of, among
other things,
securing the Obligations by and through the grant to Lender of a
lien against
certain premises located in Cochise County, Arizona, commonly known
as the
Johnson Camp Mine, and which are more particularly described on
Exhibit "A"
attached hereto (the "JOHNSON CAMP MINE"); and
WHEREAS, the Loan Documents require Nord indemnify Lender as set
forth
herein.
NOW,
THEREFORE, FOR AND IN CONSIDERATION of valuable consideration,
the
receipt and sufficiency of which are acknowledged, and further in
consideration
of the mutual covenants and conditions contained in this Agreement,
Nord hereby
certifies, represents, and warrants to Lender, and agrees as
follows:
1. As used herein, the following terms shall have the meanings
specified below:
The
term "ENVIRONMENTAL LAWS" shall mean any federal, state or local
law,
whether by common law, statute, ordinance, or regulation,
pertaining to health,
industrial hygiene, or environmental conditions, including without
limitation,
the Comprehensive Environmental Response Compensation and Liability
Act of 1980,
42 U.S.C. Sections 9601, et seq. ("CERCLA"); the Resource
Conservation and
Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq. ("RCRA");
the Toxic
Substances Control Act of 1976, 15 U.S.C.
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$62501, et seq. ("TSCA"); the Superfund Amendments and
Reauthorization Act of
1986, Title III, 42 U.S.C. Sections 11001, et seq. ("SARA"); the
Clean Air Act,
42 U.S.C. Sections 7401, et seq.; the Federal Water Pollution
Control Act, 33
U.S.C. Sections 1251, et seq.; the Safe Drinking Water Act, 42
U.S.C. Sections
300f, et seq.; the Solid Waste Disposal Act, 42 U.S.C. Sections
3251, et seq.;
the Arizona Environmental Quality Act, Ariz. Rev. Stat. Ann.
49-101, et seq.;
and any other federal, state or local law, common law, statute,
ordinance, or
regulation now in effect or hereinafter enacted which pertains to
health,
industrial hygiene, or the regulation or protection of the
environment.
The
term "HAZARDOUS SUBSTANCE" shall include:
(a)
Those substances included within the definitions of "hazardous
materials," "toxic substances," or "solid waste" in CERCLA, RCRA,
TSCA, SARA,
and the Hazardous Materials Transportation Act, 49 U.S.C. Sections
1801, et
seq., and in the regulations promulgated pursuant thereto;
(b)
Those substances defined as "hazardous substances" in A.R.S. 49-201
and
in rules adopted or guidelines promulgated pursuant thereto;
(c)
Those substances listed in the United States Department of
Transportation Table (49 C.F.R. 172.1010 and amendments thereto) or
by the
Environmental Protection Agency as hazardous substances (40 C.F.R.
Part 302 and
amendments thereto); and
(d)
All other substances, materials and wastes that are, or that
become,
regulated under, or that are classified as hazardous or toxic under
any
Environmental Law.
The
term "RELEASE" shall mean any releasing, spilling, leaking,
pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching,
disposing, or dumping.
2. Nord shall neither use, generate, manufacture, produce, store,
or Release,
on, under or about the Johnson Camp Mine, or transfer to or from
the Johnson
Camp Mine, any Hazardous Substance nor permit any third party to do
so, except
in substantial compliance with all applicable Environmental Laws.
Nord shall not
permit any environmental liens to be placed on any portion of the
Johnson Camp
Mine.
3. Nord shall give prompt written notice to Lender at the address
set forth in
the Note of:
(a)
Any proceeding, including lawsuit, investigation or settlement by
or
with any federal, state or local governmental authority (including,
without
limitation, the Arizona Department of Health Services, Arizona
Department of
Environmental Quality or the U.S. Environmental Protection Agency)
with respect
to the presence of any Hazardous Substance on the Johnson Camp Mine
or the
migration thereof from or to any other property adjacent to, or in
the vicinity
of, the Johnson Camp Mine;
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(b)
Nord's discovery of a violation of Environmental Laws that Nord
is
legally required to report to any federal, state or local
governmental authority
or the discovery of a Release of a Hazardous Substance in
sufficient quantities
to be reportable under CERCLA or the Arizona Environmental Quality
Act to any
federal, state or local governmental authority.
(c)
All claims made or threatened by any third party against Nord or
the
Johnson Camp Mine relating to any loss or injury resulting from any
Hazardous
Substance; and
(d)
Nord's discovery of any occurrence or condition on any property
adjoining or in the vicinity of the Johnson Camp Mine that could
cause the
Johnson Camp Mine or any part thereof to be subject to any
restrictions on its
ownership, occupancy, transferability or use under any
Environmental Laws.
4. Nord shall conduct and complete all investigations, studies,
sampling,
testing and all remedial, removal, and other actions necessary to
clean up and
remove all Hazardous Substances in, from or affecting the Johnson
Camp Mine;
(a)
In compliance with all applicable Environmental Laws;
(b)
In accordance with the orders and directives of all
governmental
authorities.
5. If Lender shall ever have good reason to believe that there are
Hazardous
Substances (other than those disclosed in writing to Lender)
affecting any of
the Johnson Camp Mine, Lender (by their respective officers,
employees, and
agents) at any time and from time to time may contract for the
services of
persons (the "SITE REVIEWERS") to perform environmental site
assessments ("SITE
ASSESSMENTS") on the Johnson Camp Mine for the purpose of
determining whether
there exists on the Johnson Camp Mine any environmental condition
that could
result in any liability, cost, or expense to the owner, occupier,
or operator of
such Johnson Camp Mine arising under any Environmental Laws. The
Site
Assessments may be performed at any time or times, upon reasonable
notice, and
under reasonable conditions established by Nord that do not impede
the
performance of the Site Assessments and do not unreasonably
interfere with any
of Nord's activities or operations at the Johnson Camp Mine. The
Site Reviewers
are hereby authorized to enter upon the Johnson Camp Mine for such
purposes. The
Site Reviewers are further authorized to perform both above and
below the ground
testing for environmental damage or the presence of Hazardous
Substances on the
Johnson Camp Mine and such other tests on the Johnson Camp Mine as
may be
necessary to conduct the Site Assessments in the reasonable opinion
of the Site
Reviewers. Nord will supply to the Site Reviewers such historical
and
operational information regarding the Johnson Camp Mine as may be
reasonably
requested by the Site Reviewers to facilitate the Site Assessments
and will make
available for meetings with the Site Reviewers appropriate
personnel having
knowledge of such matters. On request, Lender shall make the
results of such
Site Assessments fully available to Nord, which (prior to an Event
of Default
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under the Loan Documents) may, at their election, participate under
reasonable
procedures in the direction of such Site Assessments and the
description of
tasks of the Site Reviewers. The cost of performing such Site
Assessments shall
be paid by Lender. Lender agrees to keep all data and information
pertaining to
the Site Assessments, and the Site Assessments themselves,
confidential, and not
to disclose any such data or information to any third party (other
than the
consultants preparing the Site Assessments; unless such disclosure
is required
by applicable law or court order).
6. Lender shall have the right, but not the obligation, without in
any way
limiting Lender's other rights and remedies under the Loan
Documents, to enter
onto the Johnson Camp Mine or to take such other actions as it
deems reasonably
necessary or advisable in good faith, to clean up, remove, resolve,
or minimize
the impact of, or otherwise deal with, any Hazardous Substances on
or affecting
the Johnson Camp Mine following receipt of any notice from any
person or entity
asserting the existence of any Hazardous Substances pertaining to
the Johnson
Camp Mine or any part thereof that, if true could result in an
order, notice,
suit, imposition of a lien on the Johnson Camp Mine, or other
action and/or
that, in Lender's reasonable and good faith opinion, could
jeopardize Lender's
security under the Loan Documents. All reasonable costs and
expenses paid or
incurred by Lender in the exercise of any such rights shall be paid
by Nord, and
all such reasonable costs and expenses paid or incurred by Lender
shall be
secured by the Loan Documents and shall be payable by Nord upon
demand. All such
actions taken by Lender pursuant to this Paragraph 7 shall be in a
manner so as
not to unreasonably interfere with any of Nord's activities or
operations at the
Johnson Camp Mine, and shall be taken in accordance with Nord's
reasonable
safety rules and regulations and any such rules and regulations
imposed by any
governmental agency.
7. Lender shall have the right at any time to appear in and to
participate in,
as a party if it so elects, and be represented by counsel of its
own choice in,
any action or proceeding initiated in connection with any
Environmental Law that
affects the Johnson Camp Mine.
8. Nord shall indemnify and hold harmless Lender, any successor to
Lender, any
purchaser of the Johnson Camp Mine upon foreclosure of Lender's
interest in the
Johnson Camp Mine, and all directors, officers, employees and
agents of all of
the foregoing, from and against all claims, costs, expenses,
actions, suits,
proceedings, losses, damages and liabilities of any kind
whatsoever, including
but not limited to attorneys' fees and expenses, directly or
indirectly arising
out of or attributable to (i) the use, generation, manufacture,
production,
storage, Release, threatened Release, or presence of a Hazardous
Substance on,
under or about the Johnson Camp Mine occurring from and after the
closing of the
sale of the Johnson Camp Mine to Nord and not substantially arising
out of or
substantially related to any material action or omission to act by
Lender; (ii)
any violation or claim of violation of any Environmental Law with
respect to the
Johnson Camp Mine, and not substantially arising out of or
substantially related
to any material action or omission to act by Lender; or (iii) any
material
breach of any of the warranties, representations and covenants
contained herein.
Lender shall give written notice to Nord promptly of any claim,
suit, action,
the commencement of any proceeding
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or demand of which Lender has received written notice from a third
party and as
to which Lender believes it may be entitled to indemnification
hereunder.
9. This Agreement shall be binding upon Nord and its successors and
assigns and
shall inure to the benefit of Lender, their respective successors
and assigns.
The indemnity contained herein shall continue in full force and
effect and shall
survive the payment and performance of the Note, the release of any
lien or
encumbrance securing the Note, any foreclosure (or action in lieu
of
foreclosure) of any lien or encumbrance securing the Note, the
exercise by
Lender of any other remedy under any documents securing the Note,
and any suit,
proceeding or judgment against Nord by Lender hereon.
10. If any material warranty, representation or statement contained
herein shall
be or shall prove to have been false when made or if Nord shall
fail or neglect
to perform or observe any of the terms, provisions or covenants
contained
herein, the same shall constitute an Event of Default under the
Note and under
all documents and instruments executed and delivered in connection
therewith
that shall entitle Lender to pursue any and all remedies provided
for such
default.
11. Any notice required or permitted in connection herewith shall
be given in
the manner provided in the Note or other documents executed and
delivered in
connection with the Note.
12. Nord acknowledges that Lender has and will rely upon the
representations,
warranties and agreements herein set forth in closing and funding
(or modifying
as the case may be) the Note and that the execution and delivery of
this
Agreement is an essential condition but for which Lender would not
have agreed
to loan Nord the funds as set forth in the Note.
13. Nord waives any right or claim of right to cause a marshaling
of the assets
of Nord or to cause Lender to proceed against any of the security
for the Note
before proceeding under this Agreement against Nord; Nord agrees
that any
payments required to be made hereunder shall become due on demand;
Nord
expressly waives and relinquishes all rights and remedies accorded
by applicable
law to Nord or guarantors (including, without limitation, A.R.S.
Sections
12-1641, et seq., and 44-142, and Rule 17f of the Arizona Revised
Statutes Rules
of Civil Procedure), except any rights of subrogation that Nord may
have,
provided that the indemnity provided for hereunder shall neither be
contingent
upon the existence of any such rights of subrogation nor subject to
any claims
or defenses whatsoever that may be asserted in connection with the
enforcement
or attempted enforcement of such subrogation rights, including,
without
limitation, any claim that such subrogation rights were abrogated
by any acts or
omissions of Lender.
14. This Agreement shall be governed by and construed according to
the laws of
the State of Arizona, without giving effect to conflict of laws
principles.
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IN
WITNESS WHEREOF, Nord has executed this Agreement on November 4th,
2005.
NORD RESOURCES CORPORATION, a
Delaware corporation and
successor by merger to NORD COPPER
CORPORATION
By: /s/ Erland A. Anderson
------------------------------------
Name: Erland A. Anderson
Title: President
STATE OF ARIZONA
)
) ss.
County of
)
The foregoing instrument was acknowledged before me this day of
November 4,
2005 by Erland A. Anderson, the President of NORD RESOURCES
CORPORATION, a
Delaware corporation and the successor by merger to NORD COPPER
CORPORATION, on
behalf of the corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Martha Bartlett
----------------------------------------
Notary Public
My commission expires:
Nov. 21, 2008
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EXHIBIT "A"
The following property located in Cochise County, Arizona, together
with all
extralateral rights, water rights, and appurtenances, and all
fixtures,
stockpiles, leach heaps, dumps, and tailings situated thereon:
Part 1 - Patented Mining Claims
PARCEL 1
Arizona, Blue Grass, Puzzle, Enough, and Canton patented lode
mining
claims, Mineral Survey No. 4340, embracing a portion of Section 23,
Township 15
South, Range 22 East, G&SRB&M, in the Cochise Mining
District, Cochise County,
Arizona, U.S. Patent No. 1143496, recorded in the records of
Cochise County at
Docket 100, Page 283,
EXCEPT all that portion of the ground within the boundaries of
Ross, Dewey,
and True Blue, Mineral Survey No. 1717, and North Star, Mineral
Survey No. 3242;
and further except all veins, lodes, and ledges, throughout their
entire depth,
the tops or apexes of which lie inside the said exc
