Undertaking Oil Search Limited and DRD (Isle of Man) Limited Freehills
Exhibit 4.58
Oil Search Limited
and
DRD (Isle of Man) Limited
Freehills
This Undertaking
is made on 14 October 2003 between the following parties:
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Oil Search Limited |
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(ARBN 055 079 868), a company incorporated under the laws of the Independent State of Papua New Guinea having its registered office at Level 5, MMI Pacific Insurance Building, Champion Parade, Port Moresby, National Capital District (OSL) |
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DRD (Isle of Man) Limited |
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(company number 94445C), a company incorporated under the laws of the Isle of Man, having its registered office at Xxxxxxxxx Xxxxx, 00/00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx xx Xxx |
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(DRD (IoM)) |
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Recitals
A. Under a Deed of Amalgamation entered into between OSL, Orogen Minerals Limited (OML), Orogen Minerals (Porgera) Limited (OMP), Mineral Resources Porgera Limited (MRP), Durban Roodepoort Deep, Limited, DRD (IoM) and Dome Resources (PNG) Limited (Dome) dated 14 October 2003 (Deed of Amalgamation), the parties to that deed agreed (amongst other things) to the amalgamation of Durban Roodepoort Deep, Limited’s subsidiary, Dome, with OSL’s subsidiaries, MRP and OMP.
B. Under the terms of the Deed of Amalgamation, OML was required to provide, and OSL was to guarantee OML’s obligation to provide, various documents to DRD (IoM).
C. At Completion, OML is required to provide the documents specified in clauses 8.3(j), (k) and (n) of the Deed of Amalgamation. Certain of those documents have not been provided (Outstanding Documents).
D. DRD (IoM) agreed to complete under the Deed of Amalgamation on the Completion Date notwithstanding that the Outstanding Documents were not provided, on the condition that OSL enter into this Undertaking.
The parties agree
in consideration of, among other things, the mutual promises contained in this agreement and the parties proceeding to Completion under the Deed of Amalgamation:
Definitions
Unless the context or subject matter require otherwise:
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Amalgamated Company means the company formed on the amalgamation of OMP, MRP and Dome on Completion;
Undertaking means this undertaking as amended, varied or supplemented from time to time.
Unless otherwise provided in this clause 1, all defined terms have the meaning given to them under the Deed of Amalgamation.
Acknowledgement
Each of DRD (IoM) and OSL acknowledge and agree that:
for the purposes of clause 8.8 of the Deed of Amalgamation, this Undertaking removes the rights of all parties to the Deed of Amalgamation to claim that Completion has not occurred and invoke the rights under clause 8.8(b) of the Deed of Amalgamation in relation to any failure to comply with clauses 8.3(j), (k) and (n) of the Deed of Amalgamation; and
Completion does not:
terminate the obligations of OML to provide the documentation referred to in clauses 8.3(j), (k) and (n) of the Deed of Amalgamation and the Deed of Amalgamation shall be construed as between OML and OSL on the one hand, and DRD (IoM) and the Amalgamated Company on the other, as if the obligations under those clauses continue after Completion and survive Completion of the Deed of Amalgamation to the extent those obligations have not been performed at Completion; and
constitute an acknowledgement by DRD (IoM) that all of the documents required to be produced at Completion under clauses 8.3(j), (k) and (n) of the Deed of Amalgamation have been produced.
OSL undertakes to do all acts, matters and things, and to procure that OML and each of its related corporations do all acts, matters and things, that are necessary to provide the Outstanding Documents to DRD (IoM) unless otherwise specified, within 14 days after the Completion Date (where time is to be of the essence) or such later time as DRD (IoM) agrees in writing.
Costs and Stamp Duty
All costs incurred in relation to the execution and stamping of this Undertaking will be paid by OSL.
Notice
The notice provisions contained in clause 23 of the Deed of Amalgamation apply to this Undertaking.
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Governing law
This Undertaking is governed by and to be interpreted in accordance with the laws of New South Wales and, if applicable, the Commonwealth of Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and, if applicable the Commonwealth of Australia.
Further assurances
Each party must do anything (including execute any document), and must ensure that its employees and agents and related corporations do anything (including execute any document), that the other party may reasonably require to give full effect to this Undertaking.
Attorneys/Authorised Officers
Each person who executes this Undertaking on behalf of a party under a power of attorney or as an authorised officer of that party declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so.
Counterparts
(a) This agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute 1 instrument.
(c) A party may execute this agreement by signing any counterpart.
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Executed as an agreement:
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Signed for |
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Oil Search Limited |
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by its duly authorised |
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officer in |
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the presence of: |
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/s/ X. Xxxxxx |
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/s/ X.X. Xxxxxxxx |
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Witness |
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Authorised Officer |
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X. Xxxxxx |
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X.X. Xxxxxxxx |
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Name (please print) |
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Name (please print) |
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Signed for |
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DRD (Isle of Man) Limited |
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by its attorney in the |
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presence of: |
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/s/ X.X. Xxxxxxxxx |
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/s/ Xxx Xxxxxx |
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Witness |
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Attorney |
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X.X. Xxxxxxxxx |
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Xxx Xxxxxx |
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Name (please print) |
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Name (please print) |
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5
Exhibit 4.59
Loan Assignment Agreement
Orogen Minerals Limited
DRD (Isle of Man) Limited
and
Orogen Minerals (Porgera) Limited
Freehills [Logo]
QV.1 Building 000 Xx Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx
Telephone x00 0 0000 0000 Facsimile x00 0 0000 0000
xxx.xxxxxxxxx.xxx DX 000 Xxxxx
XXXXXX XXXXXXXXX PERTH BRISBANE HANOI HO CHI MINH CITY SINGAPORE
Correspondent Offices JAKARTA KUALA LUMPUR
Liability limited by the Solicitors’ Limitation of Liability Scheme, approved under the Professional Standards Xxx 0000 (NSW)
Reference
Table of Contents
Clause
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i
This loan assignment agreement
is made on 14 October 2003 between the following parties:
1. Orogen Minerals Limited
a company incorporated under the laws of the Independent State of Papua New Guinea with company number 2-25619
of Level 5, MMI Pacific Insurance Building, Champion Parade, Port Moresby, National Capital District
(OML)
2. DRD (Isle of Man) Limited
a company incorporated under the laws of the Isle of Man with company number 94445C
of Xxxxxxxxx Xxxxx, 00/00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx xx Xxx
(DRD (IoM))
3. Orogen Minerals (Porgera) Limited
a company incorporated under the laws of the Independent State of Papua New Guinea with company number 1-25740
of Level 5, MMI Pacific Insurance Building, Champion Parade, Port Moresby, National Capital District
(OMP)
Recitals
A. OML has provided the Loan to OMP.
B. OML, DRD (IoM) and OMP are (among others) parties to the deed of amalgamation between OML, DRD (IoM), Mineral Resources Porgera Limited, OMP, Oil Search Limited, Dome Resources (PNG) Limited and Durban Roodepoort Deep, Limited, dated 14 October 2003 (Deed of Amalgamation) whereby OML has agreed, amongst other things, to assign the benefit of the Loan to DRD (IoM) and DRD (IoM) has agreed to accept the assignment.
The parties agree
in consideration of, among other things, the mutual promises contained in this agreement:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement:
Dollars or “$” means the lawful currency of the United States of America; and
Loan means the loan for the amount of the Loan Balance, held in Dollars, owed by OMP to OML, on the terms set out in the schedule.
1.2 Interpretation
A word or phrase (other than one defined in clause 1.1) defined in the Deed of Amalgamation has the same meaning in this agreement.
Specifying anything in this agreement after the word “includes” or “for example” or similar expressions does not limit what else is included unless there is express wording to the contrary.
2. ACKNOWLEDGMENT AND ASSIGNMENT
(a) OMP acknowledges the existence of the Loan.
(b) In consideration of the payment to be made by DRD (IoM) to OML at Completion under clause 8.5 of the Deed of Amalgamation, OML absolutely and unconditionally assigns the benefit of the Loan to DRD (IoM) with effect on and from Completion.
(c) DRD (IoM) accepts the assignment.
(a) In consideration of the payment to be made by DRD (IoM) to OML at Completion under clause 8.5 of the Deed of Amalgamation, OMP consents to the assignment in clause 2.
(b) OMP acknowledges receipt of notice of the assignment in clause 2.
(c) The parties agree and acknowledge that on and from Completion:
(1) OMP will be indebted to DRD (IoM) for the amount of the Loan Balance; and
(2) OMP will be released from, and have no liability under or in respect of, the Loan to OML.
4. REPRESENTATIONS AND WARRANTIES
4.1 General representations and warranties by OML
(a) OML represents and warrants to DRD (IoM) that:
(1) authority: it has full power and authority to enter into and perform its obligations under this agreement;
(2) binding obligations: this agreement constitutes a legal, valid and binding obligation of each of OML and OMP and is enforceable in accordance with its terms subject to
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any necessary stamping and registration and to equitable principles and laws generally affecting creditors rights;
(3) transaction permitted: the execution, delivery and performance of this agreement by each of OML and OMP does not and will not violate:
(A) any law, regulation, authorisation, ruling, consent, judgment, order or decree of any Government Agency;
(B) the relevant constitution or other constituent documents of each of OML and OMP; or
(C) any Encumbrance, undertaking or document which is binding on either of OML or OMP or on any of their assets,
and do not and will not result in:
(D) the creation or imposition of any Encumbrance or restriction of any nature on any of the assets of either of OML or OMP; or
(E) the acceleration of the date of payment of any obligation existing under any Encumbrance, undertaking or document which is binding upon either of OML or OMP or on any of its assets;
(4) no trusts: neither OML nor OMP enters into this agreement as trustee of any trust or settlement;
(5) Loan valid: the Loan constitutes a legal, valid and binding obligation of OMP to repay all moneys owing by OMP on demand, such Loan being enforceable against OMP in accordance with its terms; and
(6) terms: OML has disclosed, or caused to be disclosed, to DRD (IoM) all material terms of the Loan.
(b) The representations and warranties given in clause 4.1 survive the execution of this agreement and the occurrence of Completion.
(c) OML acknowledges that DRD (IoM) has entered into this agreement in reliance on the representations and warranties given by OML in this clause 4.1 and in the Deed of Amalgamation.
4.2 General representations and warranties by DRD (IoM)
(a) DRD (IoM) represents and warrants to OML that:
(1) authority: it has full power and authority to enter into and perform its obligations under this agreement;
(2) binding obligations: this agreement constitutes a legal, valid and binding obligation of DRD (IoM) and is enforceable in accordance with its terms subject to any necessary stamping and registration and to equitable principles and laws generally affecting creditors rights;
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(3) transaction permitted: the execution, delivery and performance of this agreement by DRD (IoM) does not and will not violate:
(A) any law, regulation, authorisation, ruling, consent, judgment, order or decree of any Government Agency;
(B) the relevant constitution or other constituent documents of each of DRD (IoM); or
(C) any Encumbrance, undertaking or document which is binding on either of DRD (IoM) or on any of their assets,
and do not and will not result in:
(D) the creation or imposition of any Encumbrance or restriction of any nature on any of the assets of DRD (IoM); or
(E) the acceleration of the date of payment of any obligation existing under any Encumbrance, undertaking or document which is binding upon DRD (IoM) or on any of its assets;
(4) no trusts: DRD (IoM) does not enter into this agreement as trustee of any trust or settlement;
(b) The representations and warranties given in clause 4.2 survive the execution of this agreement and the occurrence of Completion.
(c) DRD (IoM) acknowledges that OML has entered into this agreement in reliance on the representations and warranties given by DRD (IoM) in this clause 4.2 and in the Deed of Amalgamation.
This agreement is governed by the law of New South Wales and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales.
(a) OML must pay any Stamp Duty payable in relation to the acknowledgement of the debt, representing the Loan, contained in this agreement.
(b) OML must indemnify DRD (IoM) against any claim made against DRD (IoM) or any of DRD (IoM)’s related corporations in relation to the failure by OML to pay any Stamp Duty that is payable on or in relation to this agreement in accordance with clause 6(a) and any fines or penalties in relation to the payment of Stamp Duty.
(c) Each party must pay its own legal costs in respect of this agreement.
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Schedule
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Amount of Loan: |
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Loan Balance (as defined in the Deed of Amalgamation). |
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Currency: |
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All amounts advanced under the Loan and all repayments are to be made in Dollars |
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Further advances: |
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Further drawdowns permitted at the absolute and uncontrolled discretion of OML |
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Repayment: |
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Within 5 business days of a written demand by OML |
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Interest rate: |
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90 day LIBOR for Dollars plus 2.5% per annum |
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Security: |
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Unsecured |
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Governing Law: |
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The laws of New South Wales. |
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Executed as an agreement:
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Signed
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/s/ X. Xxxxxx |
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/s/ X.X. Xxxxxxxx |
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Witness |
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Authorised Officer |
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X. Xxxxxx |
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X.X. Xxxxxxxx |
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Name (please print) |
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Name (please print) |
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Signed
for |
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/s/ X.X. Xxxxxxxxx |
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/s/ Xxx Xxxxxx |
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Witness |
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Authorised Officer |
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X.X. Xxxxxxxxx |
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Xxx Xxxxxx |
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Name (please print) |
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Name (please print) |
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Signed
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/s/ X. Xxxxxx |
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/s/ X.X. Xxxxxxxx |
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Witness |
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Authorised Officer |
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X. Xxxxxx |
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X.X. Xxxxxxxx |
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Name (please print) |
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Name (please print) |
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6
