nord resources corporation, a delaware corporation, with an office at 1 west wetmore road, suite 203, tucson, arizona, 85705 ( “ nord ” ) tmd acquisition corporation, a tennessee corporation, with an address c / o 668 n. coast hwy, # 171 laguna beach, ca 92561 ( “ tmd acquisition ” ) 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 october 14, 2004, hirsch and seymour agreed to assist nord in preserving the opportunity and, in conjunction therewith hirsch and seymour entered into an agreement of option and right of first refusal dated october 14, 2004 with nord ; e. hirsch and seymour subsequently assigned their interest and right to acquire the zinc business to tmd acquisition, a corporation formed by hirsch and seymour to facilitate an asset purchase agreement dated march 21, 2005 ( the “ acquisition agreement ” ) with asarco ; 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 ; h. nord 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