EXHIBIT 4.34
SUBORDINATION AGREEMENT
This Agreement, dated as of November 8, 2005, is made by XXXXXX X. XXXXXX,
a single man and resident of California, and XXXXXXX X. XXXXXXX, a married man
and resident of Maryland (collectively, the "SUBORDINATED CREDITOR"), for the
benefit of NEDBANK LIMITED, a limited liability company organized under the laws
of the Republic of South Africa (the "LENDER").
Nord Resources Corporation, a Delaware corporation (the "BORROWER"), is now
or hereafter may be indebted to the Lender on account of loans or the other
extensions of credit or financial accommodations from the Lender to the
Borrower, or to any other person under the guaranty or endorsement of the
Borrower.
The Subordinated Creditor has made or may make loans or grant other
financial accommodations to the Borrower.
As a condition to making any loan or extension of credit to the Borrower,
the Lender has required that the Subordinated Creditor subordinate the payment
of the Subordinated Creditor's loans and other financial accommodations to the
payment of any and all indebtedness of the Borrower to the Lender. Assisting the
Borrower in obtaining credit accommodations from the Lender and subordinating
their interests pursuant to the terms of this Agreement are in the Subordinated
Creditor's best interest.
ACCORDINGLY, in consideration of the loans and other financial
accommodations that have been made and may hereafter be made by the Lender for
the benefit of the Borrower, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Subordinated
Creditor hereby agrees as follows:
1. Definitions. As used herein, the following terms have the meanings set
forth below:
"BORROWER DEFAULT" means a Default or Event of Default as defined in
the Loan Documents.
"XXXXXXX CAMP MINE" shall have the same definition ascribed to this
term in the Deed of Trust, Assignment of Rents, and Security Agreement,
dated November __, 2005.
"LENDER INDEBTEDNESS" means each and every debt, liability and
obligation of every type and description which the Borrower may now or at
any time hereafter owe to the Lender in connection with the Loan Agreement
and any agreements of the
Lender and Borrower, whether such debt, liability or obligation now exists
or is hereafter created or incurred, and whether it is or may be direct or
indirect, due or to become due, absolute or contingent, primary or
secondary, liquidated or unliquidated, or joint, several or joint and
several, all interest thereon, all renewals, extensions and modifications
thereof and any notes issued in whole or partial substitution therefor.
"LOAN AGREEMENT" shall mean the Secured Promissory Note, dated
November ___, 2005, by and between the Borrower and the Lender, as the same
may hereafter be amended, supplemented or restated from time to time.
"LOAN DOCUMENTS" shall have the same definition ascribed to this term
in the Loan Agreement.
"SUBORDINATED INDEBTEDNESS" means all obligations arising under the
Subordinated Note and each and every other debt, liability and obligation
of every type and description which the Borrower may now or at any time
hereafter owe to the Subordinated Creditor, whether such debt, liability or
obligation now exists or is hereafter created or incurred, and whether it
is or may be direct or indirect, due or to become due, absolute or
contingent, primary or secondary, liquidated or unliquidated, or joint,
several or joint and several.
"SUBORDINATED NOTE" means the Borrower's Promissory Note, dated as of
July 1, 2005, payable to the order of the Subordinated Creditor in the
original principal amount of $600,000 together with all renewals,
extensions and modifications thereof and any note or notes issued in
substitution therefor.
2. Subordination. The payment of all of the Subordinated Indebtedness is
hereby expressly subordinated to the extent and in the manner hereinafter set
forth to the payment in full of the Lender Indebtedness; and regardless of any
priority otherwise available to the Subordinated Creditor by law or by
agreement, the Lender shall hold a first security interest in all collateral
securing payment of the Lender Indebtedness (the "COLLATERAL"), and any security
interest claimed therein (including any proceeds thereof) by the Subordinated
Creditor shall be and remain fully subordinate for all purposes to the security
interest of the Lender therein for all purposes whatsoever.
3. Payments. Until all of the Lender Indebtedness has been paid in full,
the Subordinated Creditor shall not, without the Lender's prior written consent,
demand, receive or accept any principal from the Borrower in respect of the
Subordinated Indebtedness, or exercise any right of or permit any setoff in
respect of the Subordinated Indebtedness; provided, however that Subordinated
Creditor may receive or accept only those principal payments from Borrower that
are made immediately after Lender is repaid in full,
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Subordinated Creditor hereby expressly agreeing to extend the maturity date of
the Subordinated Note accordingly, provided further, that Subordinated Creditor
may accept payment of reasonable salaries and bonuses to the extent that the
payment thereof does not cause a Borrower Default to occur, except that no
deferred salary or bonus shall be paid if a Borrower Default has occurred.
4. Interest Payments. The Subordinated Creditor may receive and accept
interest payments in accordance with the terms of the Subordinated Note, from
the Borrower in respect of the Subordinated Indebtedness so long as no Borrower
Default exists or will occur as a result of or immediately following such
interest payment.
5. Receipt of Prohibited Payments. If the Subordinated Creditor receives
any payment on the Subordinated Indebtedness that the Subordinated Creditor is
not entitled to receive under the provisions of this Agreement, the Subordinated
Creditor will hold the amount so received in trust for the Lender and will
forthwith turn over such payment to the Lender in the form received (except for
the endorsement of the Subordinated Creditor where necessary) for application to
then-existing Lender Indebtedness (whether or not due), in such manner of
application as the Lender may deem appropriate. If the Subordinated Creditor
exercises any right of setoff that the Subordinated Creditor is not permitted to
exercise under the provisions of this Agreement, the Subordinated Creditor will
promptly pay over to the Lender, in immediately available funds, an amount equal
to the amount of the claims or obligations offset. If the Subordinated Creditor
fails to make any endorsement required under this Agreement, the Lender, or any
of its officers or employees or agents on behalf of the Lender, is hereby
irrevocably appointed as the attorney-in-fact (which appointment is coupled with
an interest) for the Subordinated Creditor to make such endorsement in the
Subordinated Creditor's name.
6. Action on Subordinated Debt. The Subordinated Creditor will not commence
any action or proceeding against the Borrower to recover all or any part of the
Subordinated Indebtedness, or join with any creditor (unless the Lender shall so
join) in bringing any proceeding against the Borrower under any bankruptcy,
reorganization, readjustment of debt, arrangement of debt, receivership,
liquidation or insolvency law or statute of the federal or any state government,
or take possession of, sell, or dispose of any Collateral, or exercise or
enforce any right or remedy available to the Subordinated Creditor with respect
to any such Collateral, unless and until the Lender Indebtedness has been paid
in full.
7. Action Concerning Collateral.
(a) Notwithstanding any security interest now held or hereafter
acquired by the Subordinated Creditor, the Lender may take possession of,
sell, dispose of, and otherwise deal with all or any part of the
Collateral, and may enforce any right or
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remedy available to it with respect to the Collateral, all without notice
to or consent of the Subordinated Creditor except as specifically required
by applicable law.
(b) In addition, and without limiting the generality of the foregoing,
if a Borrower Default has occurred and is continuing and the Borrower
intends to sell any Collateral to an unrelated third party outside the
ordinary course of business, the Subordinated Creditor shall, upon the
Lender's request, execute and deliver to such purchaser such instruments as
may reasonably be necessary to terminate and release any security interest
or lien the Subordinated Creditor has in the Collateral to be sold.
(c) The Lender shall have no duty to preserve, protect, care for,
insure, take possession of, collect, dispose of, or otherwise realize upon
any of the Collateral, and in no event shall the Lender be deemed the
Subordinated Creditor's agent with respect to the Collateral. All proceeds
received by the Lender with respect to any Collateral may be applied,
first, to pay or reimburse the Lender for all costs and expenses (including
reasonable attorneys' fees) incurred by the Lender in connection with the
collection of such proceeds, and, second, to any indebtedness secured by
the Lender's security interest in that Collateral in any order that it may
choose.
8. Bankruptcy and Insolvency. In the event of any receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization or
arrangement with creditors, whether or not pursuant to bankruptcy law, the sale
of all or substantially all of the assets of the Borrower, dissolution,
liquidation or any other marshalling of the assets or liabilities of the
Borrower, the Subordinated Creditor will file all claims, proofs of claim or
other instruments of similar character necessary to enforce the obligations of
the Borrower in respect of the Subordinated Indebtedness and will hold in trust
for the Lender and promptly pay over to the Lender in the form received (except
for the endorsement of the Subordinated Creditor where necessary) for
application to the then-existing Lender Indebtedness, any and all moneys,
dividends or other assets received in any such proceedings on account of the
Subordinated Indebtedness, unless and until the Lender Indebtedness has been
paid in full. If the Subordinated Creditor shall fail to take any such action,
the Lender, as attorney-in-fact for the Subordinated Creditor, may take such
action on the Subordinated Creditor's behalf. The Subordinated Creditor hereby
irrevocably appoints the Lender, or any of its officers or employees on behalf
of the Lender, as the attorney-in-fact for the Subordinated Creditor (which
appointment is coupled with an interest) with the power but not the duty to
demand, xxx for, collect and receive any and all such moneys, dividends or other
assets and give acquittance therefor and to file any claim, proof of claim or
other instrument of similar character, to vote claims comprising Subordinated
Indebtedness to accept or reject any plan of partial or complete liquidation,
reorganization, arrangement, composition or extension and to take such other
action in the Lender's own name or in the name of the Subordinated Creditor as
the Lender may deem necessary or advisable for the enforcement of the
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agreements contained herein; and the Subordinated Creditor will execute and
deliver to the Lender such other and further powers-of-attorney or instruments
as the Lender may request in order to accomplish the foregoing.
9. Restrictive Legend; Transfer of Subordinated Indebtedness. The
Subordinated Creditor will cause the Subordinated Note and all other notes,
bonds, debentures or other instruments evidencing the Subordinated Indebtedness
or any part thereof to contain a specific statement thereon to the effect that
the indebtedness thereby evidenced is subject to the provisions of this
Agreement, and the Subordinated Creditor will xxxx its books conspicuously to
evidence the subordination effected hereby. Attached hereto is a true and
correct copy of the Subordinated Note bearing such legend. At the request of the
Lender, the Subordinated Creditor shall deposit with the Lender the Subordinated
Note and all of the other notes, bonds, debentures or other instruments
evidencing the Subordinated Indebtedness, which notes, bonds, debentures or
other instruments may be held by the Lender so long as any Lender Indebtedness
remains outstanding. The Subordinated Creditor is the lawful holder of the
Subordinated Note and has not transferred any interest therein to any other
person. Without the prior written consent of the Lender, the Subordinated
Creditor will not assign, transfer or pledge to any other person any of the
Subordinated Indebtedness or agree to a discharge or forgiveness of the same so
long as there remains outstanding any of the Lender Indebtedness.
10. Continuing Effect. For so long as there are any sums due and owing
under the Lender Indebtedness, this Agreement shall constitute a continuing
agreement of subordination, and the Lender may, without notice to or consent by
the Subordinated Creditor, modify any term of the Lender Indebtedness in
reliance upon this Agreement. Without limiting the generality of the foregoing,
the Lender may, at any time and from time to time, either before or after
receipt of any such notice of revocation, without the consent of or notice to
the Subordinated Creditor and without incurring responsibility to the
Subordinated Creditor or impairing or releasing any of the Lender's rights or
any of the Subordinated Creditor's obligations hereunder:
(a) change the interest rate or change the amount of payment or extend
the time for payment or renew or otherwise alter the terms of any Lender
Indebtedness or any instrument evidencing the same in any manner;
(b) sell, exchange, release or otherwise deal with any property at any
time securing payment of the Lender Indebtedness or any part thereof;
(c) release anyone liable in any manner for the payment or collection
of the Lender Indebtedness or any part thereof;
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(d) exercise or refrain from exercising any right against the Borrower
or any other person (including the Subordinated Creditor); and
(e) apply any sums received by the Lender, by whomsoever paid and
however realized, to the Lender Indebtedness in such manner as the Lender
shall deem appropriate.
11. No Commitment. None of the provisions of this Agreement shall be deemed
or construed to constitute or imply any commitment or obligation on the part of
the Lender to make any future loans or other extensions of credit or financial
accommodations to the Borrower.
12. Notice. All notices and other communications hereunder shall be in
writing and shall be (i) personally delivered, (ii) transmitted by registered
mail, postage prepaid, or (iii) transmitted by telecopy, in each case addressed
to the party to whom notice is being given at its address as set forth below:
If to the Lender:
Nedbank Limited
1st Floor, Old Mutual Place
0 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Attn: Xxxxx Xxxxx
Telecopier: 000-0000-0000
And a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxx, P.C.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
If to the Subordinated Creditor:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxxxxxx, #000
Xxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
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And
Xxxxxxx X. Xxxxxxx
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or at such other address as may hereafter be designated in writing by
that party. All such notices or other communications shall be deemed to
have been given on (i) the date received if delivered personally, (ii) the
date of posting if delivered by mail, or (iii) the date of transmission if
delivered by telecopy.
13. Conflict in Agreements. If the subordination provisions of any
instrument evidencing Subordinated Indebtedness conflict with the terms of this
Agreement, the terms of this Agreement shall govern the relationship between the
Lender and the Subordinated Creditor.
14. No Waiver. No waiver shall be deemed to be made by the Lender of any of
its rights hereunder unless the same shall be in writing signed on behalf of the
Lender, and each such waiver, if any, shall be a waiver only with respect to the
specific matter or matters to which the waiver relates and shall in no way
impair the rights of the Lender or the obligations of the Subordinated Creditor
to the Lender in any other respect at any time.
15. Binding Effect; Acceptance. This Agreement shall be binding upon the
Subordinated Creditor and the Subordinated Creditor's heirs, legal
representatives, successors and assigns and shall inure to the benefit of the
Lender and its participants, successors and assigns irrespective of whether this
or any similar agreement is executed by any other Subordinated Creditor of the
Borrower. Notice of acceptance by the Lender of this Agreement or of reliance by
the Lender upon this Agreement is hereby waived by the Subordinated Creditor.
16. Miscellaneous. The paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
17. Governing Law; Consent to Jurisdiction and Venue; Waiver of Jury Trial.
This Agreement shall be governed by and construed in accordance with the
substantive laws (other than conflict laws) of the State of Arizona. Each party
consents to the personal jurisdiction of the state and federal courts located in
the State of Arizona in connection with
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any controversy related to this Agreement, waives any argument that venue in any
such forum is not convenient, and agrees that any litigation initiated by any of
them in connection with this Agreement shall be venued in either the Superior
Court of Maricopa County, Arizona or the United States District Court, District
of Arizona. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR PERTAINING TO THIS ACKNOWLEDGMENT.
18. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties on different counterparts. This Agreement
shall be effective and binding once one or more counterparts hereof are executed
by each party hereto. All counterparts of this Agreement shall be deemed to
constitute one and the same Agreement.
IN WITNESS WHEREOF, the Subordinated Creditor has executed this Agreement
as of the date and year first above-written.
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
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Acknowledgment by Borrower
The undersigned, being the Borrower referred to in the foregoing Agreement,
hereby (i) acknowledges receipt of a copy thereof, (ii) agrees to all of the
terms and provisions thereof, (iii) agrees to and with the Lender that it shall
make no payment on the Subordinated Indebtedness that the Subordinated Creditor
would not be entitled to receive under the provisions of the Agreement, (iv)
agrees that any such payment will constitute a default under the Lender
Indebtedness, and (v) agrees to xxxx its books conspicuously to evidence the
subordination of the Subordinated Indebtedness effected hereby.
NORD RESOURCES CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Its: President
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EXHIBIT A
Attach copy of Subordinated Note with following legend
THIS INSTRUMENT IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT BY
XXXXXX X. HISRCH AND XXXXXXX X. XXXXXXX IN FAVOR OF NEDBANK LIMITED DATED AS OF
NOVEMBER 8, 2005.
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