Joint Venture Interest Sale Deed – Procurement Deed
Exhibit 4.116
Joint Venture Interest Sale Deed –
Procurement Deed
Procurement Deed
Xxxxxxx Gold Corporation
Xxxxxxx
Xxxxxxx Mines Limited
ACN 007 508 787
Emperor
Table of Contents
1.
............
Definitions and interpretation
..................................................................................1
2.
............
Sale and purchase of Assets......................................................................................3
3.
............
Bank of Papua New Guinea approval
......................................................................4
4.
............
Advance.....................................................................................................................5
5.
............
General
.....................................................................................................................6
Annexure A – Joint Venture Interest Sale Deed
Joint Venture Interest Sale Deed– Procurement Deed made at
on
on
Parties
Emperor Mines Limited ACN 007 508 787 incorporated in Queensland and
having its registered office at Level 1 WBM Building 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxx Xxxxxxxxxx 0000 ("Emperor")
having its registered office at Level 1 WBM Building 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxx Xxxxxxxxxx 0000 ("Emperor")
Xxxxxxx Gold Corporation incorporated in Ontario and having its registered
office at BCE Place, Canada Tower Trust, 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx X0X 0X0("Barrick")
office at BCE Place, Canada Tower Trust, 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx X0X 0X0("Barrick")
Recitals
A.
The Porgera Joint Venture owns and operates a gold mine known as the Porgera Mine in the
Enga province of Papua New Guinea, approximately 600 kilometres northwest of Port
Moresby.
Enga province of Papua New Guinea, approximately 600 kilometres northwest of Port
Moresby.
B.
The participants in the Porgera Joint Venture are Barrick (Niugini) Limited and Barrick
(Goldfields PNG Holdings) Limited (being affiliates of Barrick), DRD (Porgera) Limited
(being a wholly-owned subsidiary of Emperor) and MRE (being an entity owned and
controlled by the Porgera landowners and the Enga provincial government).
(Goldfields PNG Holdings) Limited (being affiliates of Barrick), DRD (Porgera) Limited
(being a wholly-owned subsidiary of Emperor) and MRE (being an entity owned and
controlled by the Porgera landowners and the Enga provincial government).
C.
DRD (Porgera) Limited holds a 20% Participating Interest in the Porgera Joint Venture, that
interest being more particularly defined as the Assets.
interest being more particularly defined as the Assets.
D.
Emperor has agreed to procure that DRD (Porgera) Limited sells the Assets to Barrick
(Niugini) Limited, and Barrick has agreed to procure that Barrick (Niugini) Limited buys the
Assets, on the terms and conditions contained in the Joint Venture Interest Sale Deed subject
to the terms of this Procurement Deed.
(Niugini) Limited, and Barrick has agreed to procure that Barrick (Niugini) Limited buys the
Assets, on the terms and conditions contained in the Joint Venture Interest Sale Deed subject
to the terms of this Procurement Deed.
Operative Provisions
1.
Definitions and interpretation
(a)
In this Procurement Deed, unless the context otherwise requires:
"Advance" means the amount of $37,671.23 per day in respect of the period on
and from the Effective Date until Completion and to be paid by Barrick to Emperor
in accordance with clause 4.
and from the Effective Date until Completion and to be paid by Barrick to Emperor
in accordance with clause 4.
“ANZ Bank Condition” means the condition precedent set out in clause 3(b)(.
“Barrick (Niugini)” means Barrick (Niugini) Limited, a company incorporated in
Papua New Guinea and having its registered office at Level 4, Mogoru Moto
Building, Champion Parade, Port Moresby, National Capital District, Independent
State of Papua New Guinea, which company is referred to as the “Buyer” under the
Joint Venture Interest Sale Deed.
Papua New Guinea and having its registered office at Level 4, Mogoru Moto
Building, Champion Parade, Port Moresby, National Capital District, Independent
State of Papua New Guinea, which company is referred to as the “Buyer” under the
Joint Venture Interest Sale Deed.
“DRD Porgera” means DRD (Porgera) Limited, a company incorporated in Papua
New Guinea and having its registered office at Level 5, Defens Haus, Cnr
Champion Parade & Hunter Street, Port Moresby, National Capital District,
Independent State of Papua New Guinea, which company is referred to as the
“Seller” under the Joint Venture Interest Sale Deed.
New Guinea and having its registered office at Level 5, Defens Haus, Cnr
Champion Parade & Hunter Street, Port Moresby, National Capital District,
Independent State of Papua New Guinea, which company is referred to as the
“Seller” under the Joint Venture Interest Sale Deed.
“Insolvency Event” means:
(i)
any present or future, or actual, prospective or contingent, indebtedness
of Emperor in respect of any financial accommodation including moneys
payable under a guarantee:
payable under a guarantee:
A.
is or becomes due and payable or is or becomes capable
of being declared due and payable before the due date for
payment; or
of being declared due and payable before the due date for
payment; or
B.
is not paid when due,
and remains due and payable for 21 days after that amount first becomes
due or payable;
due or payable;
(ii)
any Encumbrance is or becomes enforceable against any asset of
Emperor;
Emperor;
(iii)
a receiver, receiver and manager, official manager, trustee, administrator,
other controller or similar official is appointed, or steps are taken for
such appointment, over any of the assets or undertakings of Emperor;
other controller or similar official is appointed, or steps are taken for
such appointment, over any of the assets or undertakings of Emperor;
(iv)
Emperor suspends payment of its debts generally;
(v)
Emperor is or becomes unable to pay its debts when they are due or is or
becomes unable to pay its debts or is presumed to be insolvent or
commits an act of insolvency in terms of the securities laws applicable in
its place of incorporation;
becomes unable to pay its debts or is presumed to be insolvent or
commits an act of insolvency in terms of the securities laws applicable in
its place of incorporation;
(vi)
Emperor enters into or resolves to enter into any arrangement,
composition or compromise with, or assignment for the benefit of, its
creditors or any class of them;
composition or compromise with, or assignment for the benefit of, its
creditors or any class of them;
(vii)
an administrator is appointed or a resolution is passed or any steps are
taken to appoint, or to pass a resolution to appoint, an administrator to
Emperor;
taken to appoint, or to pass a resolution to appoint, an administrator to
Emperor;
(viii)
an application or order is made for the winding-up or dissolution of
Emperor or a resolution is passed or any steps are taken to pass a
resolution for the winding-up otherwise than for the purpose of an
amalgamation or reconstruction which has the prior written consent of
Barrick;
Emperor or a resolution is passed or any steps are taken to pass a
resolution for the winding-up otherwise than for the purpose of an
amalgamation or reconstruction which has the prior written consent of
Barrick;
(ix)
anything analogous to the events described in the paragraphs above
occurs in relation to any Related Body Corporate of Emperor under the
laws of the jurisdiction of incorporation of that Related Body Corporate,
occurs in relation to any Related Body Corporate of Emperor under the
laws of the jurisdiction of incorporation of that Related Body Corporate,
but does not include any rights which ANZ Bank has under existing financial
accommodations in place between ANZ Bank and Emperor, which are the subject
of approval, consent or other authorisation required to be obtained as a Condition
Precedent under the Joint Venture Interest Sale Deed.
accommodations in place between ANZ Bank and Emperor, which are the subject
of approval, consent or other authorisation required to be obtained as a Condition
Precedent under the Joint Venture Interest Sale Deed.
“Joint Venture Interest Sale Deed” means a deed in the form set out in Annexure
A.
A.
“PNG Central Bank” means the Bank of Papua New Guinea.
“PNG Central Bank Condition” means the condition precedent set out in
clause 3(a).
clause 3(a).
“Subscription Agreement” means the agreement between the parties on or about
the date of this Procurement Deed, under which Barrick has the option of
subscribing for ordinary fully paid shares in Emperor.
subscribing for ordinary fully paid shares in Emperor.
“US Dollars” means the lawful currency of the United States of America.
(b)
A reference to "$" or to "dollars" is a reference to US Dollars.
(c)
Unless the context requires otherwise, other capitalised words and phrases used in
this Procurement Deed (including the Recitals) have the same meaning as given to
them in the Joint Venture Interest Sale Deed.
this Procurement Deed (including the Recitals) have the same meaning as given to
them in the Joint Venture Interest Sale Deed.
(d)
Unless the context requires otherwise, the principles of interpretation set out in
clause 1.1 of the Joint Venture Interest Sale Deed shall apply to this Procurement
Deed.
clause 1.1 of the Joint Venture Interest Sale Deed shall apply to this Procurement
Deed.
2.
Sale and purchase of Assets
(a)
Xxxxxxx agrees to procure DRD Xxxxxxx to sell and transfer the Assets to Barrick
(Niugini), and Barrick agrees to procure Barrick (Niugini) to purchase and take a
transfer of the Assets, on and subject to the terms and conditions contained in the
Joint Venture Interest Sale Deed.
(Niugini), and Barrick agrees to procure Barrick (Niugini) to purchase and take a
transfer of the Assets, on and subject to the terms and conditions contained in the
Joint Venture Interest Sale Deed.
(b)
Subject only to satisfaction of the PNG Central Bank Condition:
(i)
Xxxxxxx agrees to procure that DRD Xxxxxxx executes the Joint Venture
Interest Sale Deed; and
Interest Sale Deed; and
(ii)
Barrick agrees to procure that Barrick (Niugini) executes the Joint
Venture Interest Sale Deed,
Venture Interest Sale Deed,
as soon as reasonably practicable after being notified of satisfaction of that
condition, and in any event not later than 7 days after being so notified.
condition, and in any event not later than 7 days after being so notified.
(c)
As between the parties, Emperor and Barrick agree to be bound by the terms of the
Joint Venture Interest Sale Deed as if that document had been executed by all
parties to that deed on the date of this Procurement Deed and as if:
Joint Venture Interest Sale Deed as if that document had been executed by all
parties to that deed on the date of this Procurement Deed and as if:
(i)
a reference in the Joint Venture Interest Sale Deed to “the date of this
Deed” is read as a reference to the date of this Procurement Deed;
Deed” is read as a reference to the date of this Procurement Deed;
(ii)
until such time as DRD Porgera executes the Joint Venture Interest Sale
Deed, any covenants, warranties, representations or undertakings given
by DRD Porgera under the Joint Venture Interest Sale Deed are to be
read as if Emperor gives those covenants, warranties, representations or
undertakings on behalf of DRD Porgera; and
Deed, any covenants, warranties, representations or undertakings given
by DRD Porgera under the Joint Venture Interest Sale Deed are to be
read as if Emperor gives those covenants, warranties, representations or
undertakings on behalf of DRD Porgera; and
(iii)
until such time as Barrick (Niugini) executes the Joint Venture Interest
Sale Deed, any covenants, warranties, representations or undertakings
given by Barrick (Niugini) under the Joint Venture Interest Sale Deed
are to be read as if Barrick gives those covenants, warranties,
representations or undertakings on behalf of Barrick (Niugini).
Sale Deed, any covenants, warranties, representations or undertakings
given by Barrick (Niugini) under the Joint Venture Interest Sale Deed
are to be read as if Barrick gives those covenants, warranties,
representations or undertakings on behalf of Barrick (Niugini).
(d)
Nothing in clause 2(c) requires a party to do anything which could only be lawfully
done pursuant to an authority granted by the Bank of Papua New Guinea pursuant
to the Central Banking (Foreign Exchange and Gold) Regulation of Papua New
Guinea.
done pursuant to an authority granted by the Bank of Papua New Guinea pursuant
to the Central Banking (Foreign Exchange and Gold) Regulation of Papua New
Guinea.
(e)
Either party may terminate this Procurement Deed if their subsidiary (being DRD
Xxxxxxx in the case of Emperor, and Barrick (Niugini) in the case of Barrick) would
have had a right to terminate or rescind the Joint Venture Interest Sale Deed if that
document had been executed on the same date as this Procurement Deed.
Xxxxxxx in the case of Emperor, and Barrick (Niugini) in the case of Barrick) would
have had a right to terminate or rescind the Joint Venture Interest Sale Deed if that
document had been executed on the same date as this Procurement Deed.
3.
Bank of Papua New Guinea approval
(a)
The obligations of the parties under clause 2(a) and 2(b) of this Procurement Deed
are conditional on obtaining any necessary authorities, permissions, consents or
approvals from the Bank of Papua New Guinea to:
are conditional on obtaining any necessary authorities, permissions, consents or
approvals from the Bank of Papua New Guinea to:
(i)
permit the parties to the Joint Venture Interest Sale Deed to enter into it;
(ii)
carry out the transactions contemplated by the Joint Venture Interest Sale
Deed on terms reasonably satisfactory to both Barrick and Emperor;
Deed on terms reasonably satisfactory to both Barrick and Emperor;
(iii)
capitalise Barrick (Niugini) for an amount totalling the Purchase Price on
terms reasonably satisfactory to Barrick;
terms reasonably satisfactory to Barrick;
(iv)
de-capitalise DRD Xxxxxxx, and to permit DRD Porgera to remit from
the Independent State of Papua New Guinea an amount totalling the
Purchase Price in US Dollars, on terms reasonably satisfactory to
Emperor; and
the Independent State of Papua New Guinea an amount totalling the
Purchase Price in US Dollars, on terms reasonably satisfactory to
Emperor; and
(v)
transact the payment of the Purchase Price in US Dollars (or on any
other terms reasonably satisfactory to both Barrick and Emperor)
between Barrick (Niugini) and DRD Porgera.
other terms reasonably satisfactory to both Barrick and Emperor)
between Barrick (Niugini) and DRD Porgera.
(b)
The obligations of the parties under clauses 2(a) and (c) of this Procurement Deed
are conditional on obtaining any necessary authorities, permissions, consents or
approvals from the ANZ Bank, being the necessary consents or approvals the
subject of the condition in clause 4.1(d) of the Joint Venture Interest Sale Deed.
are conditional on obtaining any necessary authorities, permissions, consents or
approvals from the ANZ Bank, being the necessary consents or approvals the
subject of the condition in clause 4.1(d) of the Joint Venture Interest Sale Deed.
(c)
Emperor and Barrick must:
(i)
each use their reasonable endeavours to obtain the fulfilment of the PNG
Central Bank Condition as soon as reasonably practicable after the date
of this Procurement Deed, and in any event no later than the date
stipulated in clause 3(e);
Central Bank Condition as soon as reasonably practicable after the date
of this Procurement Deed, and in any event no later than the date
stipulated in clause 3(e);
(ii)
cooperate with each other in approaching the PNG Central Bank for the
purposes of satisfying the PNG Central Bank Condition, and to this end,
must jointly file all notices and applications for approval necessary to
satisfy that condition as soon as reasonably practicable after the date of
this Procurement Deed.
purposes of satisfying the PNG Central Bank Condition, and to this end,
must jointly file all notices and applications for approval necessary to
satisfy that condition as soon as reasonably practicable after the date of
this Procurement Deed.
(d)
If, at any time prior to Completion, a party becomes aware of the occurrence of any
event which, in the opinion of the party acting reasonably in all the circumstances
does, or is likely to, result in the PNG Central Bank Condition being unable to be
satisfied prior to the date set out in clause 3(e), that party must immediately give
written notice to the other party of that event.
event which, in the opinion of the party acting reasonably in all the circumstances
does, or is likely to, result in the PNG Central Bank Condition being unable to be
satisfied prior to the date set out in clause 3(e), that party must immediately give
written notice to the other party of that event.
(e)
If the PNG Central Bank Condition has not been satisfied or waived within 6
months of the date of execution of the Procurement Deed, or such other date as
agreed in writing between the parties, either Emperor or Barrick may, provided that
they have satisfied their respective obligations under clause 3(c), terminate this
Procurement Deed by giving the other party written notice to that effect.
months of the date of execution of the Procurement Deed, or such other date as
agreed in writing between the parties, either Emperor or Barrick may, provided that
they have satisfied their respective obligations under clause 3(c), terminate this
Procurement Deed by giving the other party written notice to that effect.
4.
Advance
(a)
The parties acknowledge and agree that the consideration for the sale of the Assets
is the Purchase Price.
is the Purchase Price.
(b)
The Advance does not become payable under this Deed until the satisfaction (in
accordance with the requirements of clause 4.1(d) of the Joint Venture Interest Sale
Deed) of the ANZ Bank Condition.
accordance with the requirements of clause 4.1(d) of the Joint Venture Interest Sale
Deed) of the ANZ Bank Condition.
(c)
The Advance will be paid by Barrick to Emperor in Immediately Available Funds
for the period on and from the Effective Date up to Completion (provided that at all
times during that period Buyer has the economic benefit of the Assets in accordance
with clause 5 of the Joint Venture Interest Sale Deed), within 7 days of the end of
each month as follows:
for the period on and from the Effective Date up to Completion (provided that at all
times during that period Buyer has the economic benefit of the Assets in accordance
with clause 5 of the Joint Venture Interest Sale Deed), within 7 days of the end of
each month as follows:
(i)
for each calendar month up to Completion, an amount equal to the
Advance multiplied by the number of days in that calander month,
monthly in arrears within 7 days of the end of each calendar month; and
Advance multiplied by the number of days in that calander month,
monthly in arrears within 7 days of the end of each calendar month; and
(ii)
for the calendar month or part thereof in which Completion occurs, an
amount equal to the Advance multiplied by the number of days that have
passed in that month up to Completion, on the day of Completion.
amount equal to the Advance multiplied by the number of days that have
passed in that month up to Completion, on the day of Completion.
(d)
The first Advance to be paid will be set off against any amounts due from DRD
Porgera in respect of the period up to the Effective Date in accordance with its
obligation under clause 5(b) of the Porgera Joint Venture Agreement to contribute
in proportion to its Percentage Interest to all Porgera Joint Venture expenditures and
in the amounts required by the Manager pursuant to the Operating Agreement (net
of any amounts due to DRD Porgera in respect of production not taken by it in
respect of the period up to the Effective Date).
Porgera in respect of the period up to the Effective Date in accordance with its
obligation under clause 5(b) of the Porgera Joint Venture Agreement to contribute
in proportion to its Percentage Interest to all Porgera Joint Venture expenditures and
in the amounts required by the Manager pursuant to the Operating Agreement (net
of any amounts due to DRD Porgera in respect of production not taken by it in
respect of the period up to the Effective Date).
(e)
Barrick must pay subsequent Advances, without set off or deduction, to Emperor
(or as Emperor may otherwise direct).
(or as Emperor may otherwise direct).
(f)
The parties acknowledge and agree that there are no restrictions on Emperor
accessing, using or otherwise applying the Advance in its absolute discretion on and
from the date of its payment in accordance with this clause 4 and that the Advance
is not to be treated as a “deposit” under the Joint Venture Interest Sale Deed in the
usual sense.
accessing, using or otherwise applying the Advance in its absolute discretion on and
from the date of its payment in accordance with this clause 4 and that the Advance
is not to be treated as a “deposit” under the Joint Venture Interest Sale Deed in the
usual sense.
(g)
Emperor hereby directs Barrick to pay all Advances to DRD (Isle of Man) Limited
or as it otherwise directs from time to time.
or as it otherwise directs from time to time.
(h)
On Completion, Emperor will refund to Barrick the total amount of all Advances
paid.
paid.
(i)
If the Joint Venture Interest Sale Deed is terminated or rescinded prior to
Completion (such that Completion does not occur) or there is an Insolvency Event,
Barrick shall have no further obligations under this Procurement Deed to pay any
further Advances to Emperor and the total amount of all Advances paid under this
Procurement Deed are, at Xxxxxxx’x election, to be:
Completion (such that Completion does not occur) or there is an Insolvency Event,
Barrick shall have no further obligations under this Procurement Deed to pay any
further Advances to Emperor and the total amount of all Advances paid under this
Procurement Deed are, at Xxxxxxx’x election, to be:
(i)
repaid by Emperor in Immediately Available Funds on or before the date
determined in accordance with clause 5.2(a) of the Joint Venture Interest
Sale Deed (or immediately repayable if an Insolvency Event occurs). For
the avoidance of doubt, any such amounts may be set off or deducted
against any amounts which Barrick (Nuigini) is required to repay to
determined in accordance with clause 5.2(a) of the Joint Venture Interest
Sale Deed (or immediately repayable if an Insolvency Event occurs). For
the avoidance of doubt, any such amounts may be set off or deducted
against any amounts which Barrick (Nuigini) is required to repay to
DRD Porgera under clause 5.2 of the Joint Venture Interest Sale Deed;
or
or
(ii)
set-off and deducted against any amounts payable by Barrick or its
affiliates under the Subscription Agreement (in which case Barrick will
provide any covenants reasonably requested by Emperor from its
affiliates acknowledging and agreeing to such set-off arrangements).
affiliates under the Subscription Agreement (in which case Barrick will
provide any covenants reasonably requested by Emperor from its
affiliates acknowledging and agreeing to such set-off arrangements).
5.
General
Clause 10 of the Joint Venture Interest Sale Deed will apply as if the provisions of that clause
were expressly set out in this clause 5.
were expressly set out in this clause 5.
Executed as a Deed
SIGNED, SEALED and DELIVERED for
Emperor Mines Limited under power of
attorney in the presence of:
Emperor Mines Limited under power of
attorney in the presence of:
/s/ V Chadrawi
Signature of attorney (who declares that he or she
has no notice of revocation of the power of attorney)
has no notice of revocation of the power of attorney)
Signature of witness
Name
Name
Date of power of attorney
Xxxxxxx Gold Corporation, by its duly authorised
officers
officers
/s/ XX Xxxxx
Signature of authorised officer
Signature of authorised officer
Name
Name
