Exhibit 49
THIS AMENDED AND RESTATED DEBENTURE is made the 3rd day of October, 1997 to have
effect as of and from the 15th day of May, 1997
BETWEEN:
(1) GLOBAL GOLD ARMENIA LIMITED, a company incorporated and existing under the
laws of the Cayman Islands (the "Company") which expression shall include
the permitted successors in title transferees and assigns of the Company
OF THE ONE PART
AND:
(2) FIRST DYNASTY MINES (USA) LLC, a Delaware limited liability company having
its registered office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx (the
"Lender") which expression shall include the successors in title
transferees and assigns of the Lender
OF THE OTHER PART
W H E R E A S:
(A) the Company executed and delivered to First Dynasty Mines Ltd. ("FDM") a
debenture dated January 3, 1997 in the principal sum of U.S.$5,480,000 (the
"Original Debenture");
(B) the Company, FDM and Global Gold Corporation ("Global Gold") are parties to
an agreement dated May 13, 1997 (the "Definitive Agreement") pursuant to
which FDM was granted the right to earn an equity interest in the Company
by making convertible loans to the Company;
(C) pursuant to the terms of the Definitive Agreement, FDM has assigned its
rights under the Definitive Agreement and the Original Debenture to the
Lender, a wholly-owned subsidiary of FDM; and
(D) the Definitive Agreement provides for amendments to be made to the terms of
the Original Debenture and this Amended and Restated Debenture is being
entered into to amend and replace the Original Debenture.
NOW THIS AMENDED AND RESTATED DEBENTURE WITNESSETH as follows:
1. (a) Words importing the masculine gender shall include the feminine and
neuter genders and vice versa and words importing the singular number
only shall include the plural number and vice versa and words
importing persons and all reference to persons shall include
corporations and firms;
-2-
(b) "the Principal Sum" shall mean the aggregate sum of all advances made,
from time to time, by the Lender to the Company pursuant to the
Definitive Agreement (including advances made by FDM under the
Original Debenture) which have not been repaid or converted into
ordinary shares of the Company pursuant to Clause 3 hereof, up to an
aggregate maximum of U.S.$15,000,000; and
(c) all terms denoted with initial capital letters and not otherwise
defined herein have the meanings assigned to them in the Definitive
Agreement.
2. The Principal Sum, from time to time outstanding, will bear simple interest
at the rate of ten per cent (10%) per annum calculated on a 360 day year.
Any part of the Principal Sum that has not been converted into ordinary
shares of the Company pursuant to Clause 3 by the earlier of:
(a) the date that the Lender's rights under the Definitive Agreement cease
to be exclusive pursuant to Section 2.6 of the Definitive Agreement
but not prior to March 31, 1998; or
(b) December 31, 1999,
will then become repayable, with interest as aforesaid, in twelve quarterly
instalments, each consisting of one-twelfth of the Principal Sum plus
interest. Each advance of the Principal Sum (including advances made under
the Original Debenture prior to date hereof) and each conversion thereof
into ordinary shares of the Company or repayment will be noted on the grid
attached hereto as Schedule "A".
3. The Principal Sum of this Amended and Restated Debenture outstanding from
time to time will be converted into ordinary shares of the Company on the
following basis:
(a) as of the first date after the date of this Amended and Restated
Debenture that the Principal Sum equals U.S.$6,490,000, such Principal
Sum and all accrued interest will be deemed converted into that number
of ordinary shares of the Company (the "First Instalment Shares")
which, upon issuance, represent twenty-five per cent (25%) of the
issued and outstanding ordinary shares of the Company;
(b) as of the first date after the date of issuance of the First
Instalment Shares that the Principal Sum equals U.S.$3,520,000, such
Principal Sum and all accrued interest will be deemed converted into
that number of ordinary shares of the Company (the "Second Instalment
Shares") which, upon issuance, represent, together with the First
Instalment Shares, fifty-one per cent (51%) of the
-3-
issued and outstanding ordinary shares of the Company provided that
the Lender may, at any time and from time to time after the date of
issuance of the First Instalment Shares until the earlier of,
(i) the first date thereafter that the Principal Sum equals
$3,520,000, or
(ii) the date upon which the last of the Second Instalment Shares is
issued
elect, by notice in writing to the Company, to convert the Principal
Sum and all accrued interest then outstanding into that number of the
Second Instalment Shares which is equal to the product obtained by
multiplying the total number of Second Instalment Shares by a fraction
the numerator of which is the Principal Sum then outstanding and the
denominator of which is $3,520,000.
(c) as of the first date after the date of issuance of the last of the
Second Instalment Shares that the Principal Sum equals
U.S.$14,500,000, such Principal Sum and all accrued interest will be
deemed converted into that number of ordinary shares of the Company
(the "Third Instalment Shares") which, upon issuance, represent,
together with the First Instalment Shares and the Second Instalment
Shares, eighty per cent (80%) of the issued and outstanding ordinary
shares of the Company provided that the Lender may, at any time and
from time to time after the date of issuance of the last of the Second
Instalment Shares until the earlier of,
(i) the first date thereafter that the Principal Sum equals
$14,500,000, or
(ii) the date upon which the last of the Third Instalment Shares is
issued
elect, by notice in writing to the Company, to convert the Principal
Sum and all accrued interest then outstanding into that number of the
Third Instalment Shares which is equal to the product obtained by
multiplying the total number of Third Instalment Shares by a fraction
the numerator of which is the Principal Sum then outstanding and the
denominator of which is $14,500,000.
(d) The shares issued on conversion shall carry the right to participate
in full in all dividends and other distributions declared after the
date of conversion; in all other respects such share capital will rank
pari passu and form one class with the ordinary shares of the Company
in issue on the date of conversion.
(e) If any offer or invitation to subscribe for or purchase ordinary
shares is made to the shareholders of the Company, the Company shall
at the same time make, or so far as it is able, procure to be made,
the same offer or invitation
-4-
to the Lender as if immediately before the record date of such offer
or invitation the Principal Sum had been converted into ordinary
shares at the conversion rates provided in subparagraphs (a), (b), (c)
and (d) above.
(f) The Company hereby covenants with the Lender that at all times until
the Principal Sum is converted or repaid in full it will maintain
sufficient ordinary shares in its authorized but unissued share
capital to allow it to immediately give effect to the conversion
rights hereby conferred.
(g) All amounts of principal and interest which are, from time to time,
converted or deemed converted into shares hereunder will, upon such
conversion, be deemed to be fully paid and satisfied.
4. Notwithstanding any other provisions of this Amended and Restated Debenture
any sums owing hereunder shall become payable immediately and all unpaid
interest and any other monies owing hereunder shall become immediately
owing and payable as follows:
(a) If the Company shall default in the payment of any monies due and
owing hereunder; or
(b) If any representation or warranty made in or in connection with this
Amended and Restated Debenture or the execution and delivery thereof
or in any document or certificate furnished pursuant hereto shall
prove at any time to have been incorrect in any material respect; or
(c) If the Company shall default in the performance or observance of any
agreement covenant stipulation or obligation contained or implied in
this Amended and Restated Debenture whether negative or otherwise
(other than obligations in respect of the payment of any monies
hereunder); or
(d) If by or under the authority of any Government the management of the
Company or its authority to conduct its business is curtailed to the
point of making it effectively inoperative by any seizure or
intervention or proceedings of any nature; or
(e) If a distress or execution shall be levied or enforced upon or against
any of the chattels or property of the Company and shall not be
satisfied within seven (7) days of the levy or enforcement of such
distress or execution or within any grace period to which the Company
is entitled in respect of such distress or execution whichever is
later; or
-5-
(f) If the Company makes or attempts to make any alteration to the
provisions of its Memorandum or Articles of Association which might in
the opinion of the Lender affect its interests hereunder or shall fail
or neglect to comply with any or all of the provisions of the
Companies Law Cap. 22 or any statutory modification or re-enactment
thereof or any other of the laws of the Cayman Islands in so far as
the same way relate to it; or
(g) If an order is made or an effective resolution is passed for the
winding up of the Company except for the purpose of a reconstruction
or amalgamation the terms of which have been previously approved in
writing by the Lender; or
(h) If an encumbrancer takes possession or a receiver is appointed of any
part of the assets of the Company; or
(i) If the Company ceases or threatens to cease to carry on its business
or substantially the whole of its business; or
(j) If the Company shall have sold or agreed to sell the whole of its
undertaking or any substantial part thereof otherwise than with the
previous written consent of the Lender; or
(k) If the Company is unable to pay its debts within the meaning of
Section 92 of the Companies Law Cap. 22 or any statutory modification
or re-enactment thereof; or
5. The Company hereby represents and warrants to the Lender that it is a
corporation duly organized, validly existing and in good standing under the
Laws of the Cayman Islands and that it is duly qualified to do business
wherever necessary to carry on its present operations and that the making
and performance of this Amended and Restated Debenture is within its powers
having been duly authorized by all necessary governmental and corporate
approvals and does not contravene any law or any contractual restriction
binding on the Company and that this Amended and Restated Debenture is a
legal valid and binding obligation of the Company enforceable against the
Company in accordance with its terms and that there are no pending or
threatened actions or proceedings before any court or administrative agency
which may materially adversely affect the Company or its financial
conditions and operations.
6. The Company hereby further covenants with the Lender at all times during
the continuance of this Amended and Restated Debenture as follows:
-6-
(a) At all times during the continuance of this Amended and Restated
Debenture to keep up and maintain and preserve all the property of the
Company in good and merchantable order and condition;
(b) To pay to the Lender on demand all costs, charges and expenses
incurred or to be incurred by the Lender in relation to these presents
or any default hereunder or the protection or enforcement of any of
the rights of the Lender hereunder together with the stamp duty and
recording fees hereon;
(c) To carry on its business in a proper and efficient manner; and
(d) To observe and perform all the covenants, agreements and provisions
contained in or implied hereby.
7. It shall be lawful for but not obligatory on the Lender to advance and pay
all sums of money necessary for the purpose of remedying any breach or
breaches of covenants or obligations whether imposed on the Company under
the provisions of this Amended and Restated Debenture or implied by law and
all monies so paid and shall bear interest at the applicable interest rate
computed from the time or respective times of paying or advancing the same.
8. No neglect omission or forbearance on the part of the Lender to take
advantage of or enforce any right or remedy arising out of any breach or
non-observance of any covenant or condition herein contained or implied
shall be deemed to be or operate as a general waiver of such covenant or
condition or the right to enforce or take advantage of the same in respect
of any breach or non-observance thereof either original or recurring.
9. All notices which may or are required to be given pursuant to any
provisions of this Amended and Restated Debenture shall be in writing and
shall be delivered personally or by telecopy, and in the case of the Lender
addressed to:
Xx. 0 Xxxxxxx Xxxxxx
00xx Xxxxx, Xxxxxxxx Xxxxx
Xxxxxxxxx
000000
Fax No: 000-00-000-0000
Attention: Manager
-7-
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxxxxxx
1900 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Fax No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
in the case of the Company addressed to:
000 Xxxx 00xx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx
00000
Fax No: (000) 000-0000
Attention: President
with a copy to:
Patterson, Belknap, Xxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Fax No: (000) 000-0000
Attention: Xxx Xxxxxxxxx
or such other address or telecopier number of which a party may, from time
to time, advise the other parties hereto by notice in writing given in
accordance with the foregoing. Date of receipt of any such notice shall be
deemed to be the date of delivery thereof, if delivered, and on the day of
telecopying, if telecopied, provided such day is a Business Day and, if
not, on the first Business Day thereafter.
10. Concurrent with the execution and delivery of this Amended and Restated
Debenture, the Original Debenture and the Guarantee, dated February 3, 1997
by Global Gold Corporation have been marked "cancelled" and delivered to
the Company as fully satisfied by way of the substitution therefor of this
Amended and Restated Debenture and the Guarantee, dated as of the date
hereof, by Global Gold Corporation.
-8-
11. Each of the Company and the Lender acknowledge and agree to the amendments
to the Charge over Shares described in the Guarantee of Global Gold
Corporation appended to this Amended and Restated Debenture.
12. This Amended and Restated Debenture shall be governed and construed solely
according to the Laws of the Cayman Islands.
IN WITNESS WHEREOF each of the Company and the Lender has executed this Amended
and Restated Debenture as a Deed by its duly authorized persons the day and year
first above written.
Signed for and on behalf of )
GLOBAL GOLD ARMENIA LIMITED )
by: /s/ Xxxxxx X. Xxxxxxxx )
)
, Director ) Per:__________________________
) Director
in the presence of: )
)
)
)
----------------------------- )
witness, and thereby executed )
by GLOBAL GOLD ARMENIA LIMITED
as its Deed )
Signed for and on behalf of )
FIRST DYNASTY MINES (USA) LLC )
by: /s/ Xxxxxx Xxxxxxxx )
)
, Manager ) Per:___________________________
) Manager
in the presence of: )
)
)
----------------------------- )
witness, and thereby executed
by FIRST DYNASTY MINES (USA) LLC
as its Deed
-9-
GUARANTEE
Payment by, and performance of the obligations of the Company, a wholly-owned
subsidiary of Global Gold Corporation ("Global Gold") under the foregoing
Amended and Restated Debenture is hereby unconditionally and irrevocably
guaranteed by Global Gold in favour of the Lender. Global Gold acknowledges and
agrees to the assignment by FDM to the Lender of all of FDM's rights under the
Original Debenture, as amended by the Amended and Restated Debenture, and the
Deed of Charge over Shares dated February 3, 1997 and made by Global Gold in
favour of FDM (the "Charge over Shares"). Global Gold further agrees that the
covenants of Global Gold made in the Charge over Shares are made by Global Gold
in favour of the Lender and that references in the Charge over Shares to the
"Debenture" will be construed as references to the Amended and Restated
Debenture. This guarantee and the Charge over Shares will be released as of the
date that the Lender has acquired not less than eighty per cent (80%) of the
ordinary shares of the Company pursuant to the conversion from time to time of
the Principal Sum in accordance with paragraph 3.
IN WITNESS WHEREOF Global Gold Corporation has executed this Guarantee as a Deed
on the 13th day of May, 1997.
Signed for and on behalf of )
GLOBAL GOLD CORPORATION )
by: /s/ Xxxxx X. Xxxxxxxxx )
)
, Director ) Per:________________________
) Director
in the presence of: )
)
)
----------------------------------- )
witness, and thereby executed
by GLOBAL GOLD CORPORATION
as its Deed
SCHEDULE "A"
LOANS ADVANCED BY FIRST DYNASTY MINES (USA) LLC TO
GLOBAL GOLD ARMENIA LIMITED
NOTE: ALL AMOUNTS ARE STATED IN UNITED STATES DOLLARS
AMOUNT OF
AMOUNT OF PRINCIPAL UNPAID
DATE LOAN CONVERTED OR PRINCIPAL NOTATION
(D/M/Y) ADVANCED REPAID BALANCE MADE BY
31/12/97 $17,510,000 $0 $17,510,000
-------------- -------------- -------------- -------------- --------------
31/12/97 $0 $17,510,000 $0
-------------- -------------- -------------- -------------- --------------
$ $ $
-------------- -------------- -------------- -------------- --------------
$ $ $
-------------- -------------- -------------- -------------- --------------
$ $ $
-------------- -------------- -------------- -------------- --------------
$ $ $
-------------- -------------- -------------- -------------- --------------
$ $ $
-------------- -------------- -------------- -------------- --------------
