AMENDED AND RESTATED ASSIGNMENT AGREEMENT
AMENDED AND RESTATED
ASSIGNMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made effective October 18, 2006
BETWEEN:
NORD RESOURCES CORPORATION, a Delaware corporation, with an office at 0 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxx, 00000
(“Nord”)
AND:
TMD ACQUISITION CORPORATION, a Tennessee corporation, with an address c/o 000 X. Xxxxx Xxx, #000 Xxxxxx Xxxxx, XX 00000
(“TMD Acquisition”)
WHEREAS:
| A. |
In May 2004, Nord commenced pursuing an opportunity (the “Opportunity”) to acquire assets comprising ASARCO Inc.’s (“ASARCO”) Tennessee Mines Division zinc business (the “Zinc Assets”); | |
| B. |
As a result of Nord’s development efforts, ASARCO subsequently selected Nord as the primary candidate with whom ASARCO would negotiate the sale and purchase of the Zinc Assets, and presented Nord with a draft Asset Purchase Agreement in respect of the Zinc Assets; | |
| C. |
In October, 2004, Nord entered into a secured bridge loan agreement with Regiment Capital III, L.P. (“Regiment Capital”), the terms of which prevented Nord from making an investment in, or undertaking any business with respect to, the Zinc Assets without the prior written consent of Regiment Capital. Regiment Capital informed Nord that it would not consent to the direct acquisition of the Zinc Assets by Nord; | |
| D. |
Pursuant to an Agreement of Assignment and Assumption dated Xxxxxxx 00, 0000, Xxxxxx and Seymour agreed to assist Nord in preserving the Opportunity and, in conjunction therewith Xxxxxx and Xxxxxxx entered into an Agreement of Option and Right of First Refusal dated October 14, 2004 with Nord; | |
| X. |
Xxxxxx and Seymour subsequently assigned their interest and right to acquire the zinc business to TMD Acquisition, a corporation formed by Xxxxxx and Xxxxxxx to facilitate an asset purchase agreement dated March 21, 2005 (the “Acquisition Agreement”) with ASARCO; |
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| F. |
On August 2, 2005, ASARCO purported to terminate the Acquisition Agreement and subsequently filed for relief under Chapter 11 of the United States Bankruptcy Code; | |
| G. |
TMD Acquisition has disputed ASARCO’s position that the Acquisition Agreement has been terminated, but was advised in May 2006 that the Zinc Assets have been sold at auction; | |
| X. |
Xxxx believes that the Zinc Assets were a property of potential merit, and is desirous of preserving Nord’s right of action against ASARCO and ASARCO’s trustee in bankruptcy; | |
| I. |
As there are no longer any restrictions imposed by Nord’s current lender in respect of the Zinc Assets, Nord and TMD Acquisition have agreed that Nord will take an assignment of the Acquisition Agreement and all other agreements, rights and obligations related thereto (the “TMD Agreement”); | |
|
J. |
TMD Acquisition and Nord executed an Assignment Agreement dated October 18, 2006 pursuant to which TMD Acquisition intended to assign all of its rights and obligations under the TMD Agreement to Nord, and Nord intended to assume all of TMD Acquisition’s rights and obligations under the TMD Agreement; and | |
| K. |
The operative language to effect the assignment was inadvertently omitted from section 1 of the Assignment Agreement, and the parties have agreed to execute this Amended and Restated Assignment Agreement to rectify such omission. |
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the premises and of the mutual covenants and agreements hereinafter contained, the parties hereto agree as follows:
1. Effective October 18, 2006 (the “Effective Date”) all of TMD Acquisition’s rights and obligations under the TMD Agreement, including, without limitation, any and all claims and causes of action which TMD has or may have against ASARCO, ASARCO’s bankruptcy estate, ASARCO’s parents, subsidiaries or affiliates and ASARCO’s directors and officers, are hereby assigned and transferred by TMD Acquisition to Nord.
2. Nord covenants and agrees that from and after the Effective Date it will perform all of the duties and obligations on the part of TMD Acquisition to be performed under the TMD Agreement.
3. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successor and assigns.
4. This Agreement constitutes the entire and final agreement and understanding between the parties with respect to the subject matter hereof and the transactions contemplated hereby; and, with the exception of that certain Settlement Agreement between the parties dated October 18, 2006, supersedes any and all prior oral or written agreements, statements, representations, warranties or understandings between the parties, all of which are merged herein and superseded hereby.
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5. The parties will execute all such further and other documents or assurances as may be required in order to carry out the terms of this Agreement.
6. This Agreement shall be governed by and in accordance with the laws of the State of Arizona.
7. This Agreement may be executed in counterparts, which together shall constitute one instrument. Delivery of an executed copy of this Agreement by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Agreement as of its effective date.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first above written.
| NORD RESOURCES CORPORATION | TMD ACQUISITION CORPORATION | |||
| Per: | /s/ Xxxx X. Xxxxx | Per: | /s/ Xxxxxx Xxxxxx | |
| Authorized Signatory | Authorized Signatory |
