Exhibit
4.58


 


 


Undertaking


 


 


Oil Search Limited


 


 


and


 


 


DRD (Isle of Man) Limited


 


 


Freehills


 

















 


This Undertaking


 


is made on 14 October 2003 between the following parties:


 


	
  1.

  	
   

  	
  Oil
  Search Limited

  
	
   

  	
   

  	
  (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)

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  DRD
  (Isle of Man) Limited

  
	
   

  	
   

  	
  (company number 94445C), a company incorporated under the laws of the
  Isle of Man, having its registered office at  Grosvenor House, 66/67
  Athol Street, Douglas, Isle of Man

  
	
  (DRD (IoM))

  	
   

  	
   

  



 


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:


 


2

















 


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.


 


Undertaking


 


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.


 


3

















 


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.


 


4

















 


Executed
as an agreement:


 


 


	
  Signed for

  	
   

  
	
  Oil Search Limited

  	
   

  
	
  by its duly authorised

  	
   

  
	
  officer in

  	
   

  
	
  the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/ T. Wilson

  	
   

  	
  /s/ M.G. Sullivan

  	
   

  
	
  Witness

  	
   

  	
  Authorised Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  T. Wilson

  	
   

  	
  M.G. Sullivan

  	
   

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed for

  	
   

  	
   

  	
   

  
	
  DRD (Isle of Man) Limited

  	
   

  	
   

  	
   

  
	
  by its attorney in the

  	
   

  	
   

  	
   

  
	
  presence of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ D.J. Pretorius

  	
   

  	
  /s/ Ian Murray

  	
   

  
	
  Witness

  	
   

  	
  Attorney

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  D.J. Pretorius

  	
   

  	
  Ian Murray

  	
   

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  	
   

  



 


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 250 St
Georges Terrace Perth Western Australia 6000 Australia


Telephone +61 8 9211 7777
Facsimile +61 8 9211 7878


www.freehills.com  DX
104  Perth


 


SYDNEY MELBOURNE 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 Act 1994 (NSW)


 


Reference


 

















 


Table of Contents


 


Clause


 


	
  1.

  	
  Definitions and
  Interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
   

  
	
   

  	
  1.2

  	
  Interpretation

  	
   

  
	
   

  	
  1.3

  	
  Inclusive
  expressions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Acknowledgment and
  assignment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Consent and
  notice

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Representations and
  warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  General
  representations and warranties by OML

  	
   

  
	
   

  	
  4.2

  	
  General representations and warranties
  by DRD (IoM)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Governing law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Stamp
  duty and costs

  	
   

  



 


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 Grosvenor House, 66/67
Athol Street, Douglas, Isle of Man 


(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.


 


1.3                               Inclusive expressions


 


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.


 


3.                                      CONSENT AND NOTICE


 


(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


 


2

















 


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;


 


3

















 


(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.


 


5.                                      GOVERNING LAW


 


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.


 


6.                                      STAMP DUTY AND
COSTS


 


(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.


 


4

















 


Schedule


 


	
  Amount
  of Loan:

  	
   

  	
  Loan Balance (as defined in the Deed of
  Amalgamation).

  
	
   

  	
   

  	
   

  
	
  Currency:

  	
   

  	
  All amounts advanced under the Loan and all
  repayments are to be made in Dollars

  
	
   

  	
   

  	
   

  
	
  Further
  advances:

  	
   

  	
  Further drawdowns permitted at the absolute and
  uncontrolled discretion of OML

  
	
   

  	
   

  	
   

  
	
  Repayment:

  	
   

  	
  Within 5 business days of a written demand by OML

  
	
   

  	
   

  	
   

  
	
  Interest
  rate:

  	
   

  	
  90 day LIBOR for Dollars plus 2.5% per annum

  
	
   

  	
   

  	
   

  
	
  Security:

  	
   

  	
  Unsecured

  
	
   

  	
   

  	
   

  
	
  Governing
  Law:

  	
   

  	
  The laws of New South Wales.

  



 


5

















 


Executed
as an agreement:


 


 


	
  Signed
  by

  Orogen Minerals Limited

  by:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ T. Wilson

  	
   

  	
  /s/ M.G. Sullivan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
  Authorised Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  T. Wilson

  	
   

  	
  M.G. Sullivan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed
  for

  DRD
  (Isle of Man) Limited

  by its attorney in

  the presence of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ D.J. Pretorius

  	
   

  	
  /s/ Ian Murray

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
  Authorised Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  D.J. Pretorius

  	
   

  	
  Ian Murray

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed
  by

  Orogen
  Minerals (Porgera) Limited

  by:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ T. Wilson

  	
   

  	
  /s/ M.G. Sullivan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
  Authorised Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  T. Wilson

  	
   

  	
  M.G. Sullivan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  	
   

  



 


6