GUARANTEE AND INDEMNITY AGREEMENT
Exhibit
10.22
THIS
GUARANTEE AND INDEMNITY AGREEMENT made the 26th day of February, 2008.
BETWEEN:
POSCO
CANADA LTD.,
a
company duly incorporated in British Columbia, Canada, and having an office
at
Suite 2350 — ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
(“POSCAN”)
AND:
GENERAL
MOLY, INC.,
a
Delaware corporation and successor-by-merger to Idaho General Mines, Inc.,
and
NEVADA
MOLY, LLC,
a
Delaware limited liability company
(collectively,
the “GMO Parties”)
WHEREAS:
A. POSCAN
is
the parent corporation of Pos-Minerals Corporation
(“POS-Minerals”);
B. In
accordance with Section 2.3(a) of the Contribution Agreement dated as of
February 26, 2008 (the “Contribution Agreement”), POS-Minerals desires to
make the POS-Minerals Initial Contribution (as defined in the Contribution
Agreement) to Eureka Moly, LLC (the “Company”); and
C. POSCAN
is
required to enter into this Agreement in favour of the GMO Parties pursuant
to
the terms of the Contribution Agreement.
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the sum of TEN ($10) DOLLARS (as defined in the Contribution
Agreement) and other good and valuable consideration now paid by the GMO
Parties
to POSCAN (the receipt and sufficiency of which is hereby acknowledged) and
of
the other premises and covenants and agreements hereinafter contained, POSCAN
hereby covenants and agrees with the GMO Parties as follows:
1. Guarantee
POSCAN
hereby unconditionally guarantees the payment of, and the performance of
the
obligations of POS-Minerals to contribute to the Company, the POS-Minerals
Initial Contribution in accordance with Section 2.3(a) of the Contribution
Agreement (the “Obligations”).
2. Covenant
and Indemnity
POSCAN
shall perform the Obligations upon written demand given by the GMO Parties
to
POSCAN upon a failure by POS-Minerals to perform any of the
Obligations.
3. Indemnity
Absolute
The
liability of POSCAN hereunder shall be absolute and unconditional irrespective
of, and shall not be released, discharged, limited, or otherwise affected
by
anything done, suffered, or permitted by the GMO
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Parties
in connection with the Obligations except to the extent such thing done,
suffered, or permitted excuses of POS-Mineral’s performance of the Obligations
and then only to the extent POS-Mineral’s performance is excused. Without
limiting the generality of the foregoing, the obligations and liabilities
of
POSCAN hereunder shall be absolute and unconditional and shall not be released,
discharged, limited or otherwise affected by:
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(a)
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any
amendment or waiver of or any consent to or departure from, any
agreement
between POS-Minerals and the GMO Parties relating to the
Obligations;
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(b)
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POS-Minerals
becoming insolvent or bankrupt or subject to the provisions of
any
insolvency legislation; or
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(c)
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any
other circumstances which might otherwise constitute a legal or
equitable
defence available to POS-Minerals, or complete or partial discharge
of
POS-Minerals, in respect of the Obligations or of POSCAN in respect
of its
guarantee hereunder.
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4. Governing
Law
This
Guarantee shall be governed by and construed in accordance with the laws
of the
Province of British Columbia and the laws of Canada applicable therein. POSCAN
and the CMG Parties hereby irrevocably attorn and submit to the jurisdiction
of
the courts of the Province of British Columbia, Canada. Any controversy,
claim,
or dispute between POSCAN and the GMO Parties arising out of, relating to,
or in
connection with this Guarantee shall be exclusively and finally settled pursuant
to and in accordance with Article XV of the LLC Agreement (as defined in
the
Contribution Agreement), mutatis mutandis.
5. Notice
Any
notice, demand, direction or other communication required or permitted to
be
given under this Guarantee shall be effectually made or given if delivered
by
prepaid registered mail or by facsimile transmission to the address of each
party set out below:
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(a)
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If
to POSCAN, to it at:
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POSCO
CANADA LTD.
▇.▇.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇ - ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇
▇▇▇
▇▇▇
Attention:
▇▇▇▇▇▇ Kyun ▇▇▇
Telecopier:
▇-(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
Holland &
▇▇▇▇
555
17th
Street, Suite 3200
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ of America
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier.
▇-(▇▇▇) ▇▇▇-▇▇▇▇
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(b)
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If
to the GMO Parties, to them at:
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▇▇▇▇
▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ of America
Attention:
Chief Executive Officer
Telecopier.
▇▇ (▇▇▇)-▇▇▇-▇▇▇▇
with
a
copy to:
Holme
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ of America
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopier:
▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
or
to
such other address or facsimile number as either parry may designate in the
manner set out above. Any notice, demand, direction or other communication
shall
be deemed to have been given and received on the day of prepaid private courier
delivery or facsimile transmission.
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement on the day and year first above
written.
POSCO
CANADA LTD.
Per:
/s/
▇▇▇▇▇▇ Kyun ▇▇▇
Authorized
Signatory
Per:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized
Signatory
NEVADA
MOLY, LLC
Per:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized
Signatory
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