PART A
The following are the documents referred to in Clause 8.1(a).
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A duly executed original of each Finance Document (and of each document required to be delivered by each Finance Document) other than those referred to in Part B of this Schedule 2.
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2
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Copies of the certificate of incorporation and constitutional documents of each Borrower and the Guarantor.
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3
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Copies of resolutions of the shareholders and directors of each Borrower authorising the execution of the Finance Documents to which that Borrower is a party and authorising named signatories to give the Drawdown Notices and other notices under this Agreement.
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4
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Copies of the resolutions of the executive committee of the Guarantor authorising the execution of the Finance Documents to which it is party.
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5
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The original of any power of attorney under which any Finance Document is to be executed on behalf of each Borrower or the Guarantor.
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6
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The originals of any mandates or other documents required in connection with the opening or operation of the Earnings Accounts.
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7
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Such evidence as the Lender may require as to the ultimate legal and beneficial shareholders in respect of the Borrowers and the Guarantor.
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8
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Documentary evidence that the agent for service of process named in Clause 30 has accepted its appointment.
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10
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A favourable legal opinion from lawyers appointed by the Lender on such matters concerning the laws of the Marshall Islands and such other relevant jurisdictions as the Lender may require.
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11
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Any documents as the Lender may require in respect of the Borrowers and any Security Party to satisfy the Lender's "know your customer" requirements and its other customary money laundering checks.
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12
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The Financial Statements of the Guarantor as described in clause 10.7 of the Loan Agreement.
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13
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Any other documents that the Lender may reasonably require in respect of the Borrowers and any Security Party.
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PART B
The following are the documents referred to in Clause 8.1(b).
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A duly executed original of each Account Pledge, the Mortgage and the General Assignment each in respect of the Ship to be financed by the relevant Tranche (the "Relevant Ship").
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2
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Documentary evidence that:
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(a)
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the Relevant Ship is definitively and permanently registered in the name of the relevant Borrower under an Approved Flag;
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(b)
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the Relevant Ship is in the absolute and unencumbered ownership of the relevant Borrower save as contemplated by the Finance Documents;
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(c)
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the Relevant Ship maintains the highest available class with such first class classification society which is a member of the IACS as the Lender may approve free of all recommendations and conditions of such classification society;
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(d)
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a Mortgage has been duly registered against the Relevant Ship in accordance with the laws and requirements of the relevant Approved Flag State; and
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(e)
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the Relevant Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with.
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3
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Documents establishing that the Relevant Ship will, as from the relevant Drawdown Date, be managed by the Approved Manager on terms acceptable to the Lender, together with:
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(a)
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a letter of undertaking executed by the Approved Manager in favour of the Lender in the terms required by the Lender agreeing certain matters in relation to the management of the Relevant Ship and subordinating the rights of the Approved Manager against the Relevant Ship and the relevant Borrower to the rights of the Lender under the Finance Documents; and
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(b)
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copies of the Approved Manager's Document of Compliance and of the Relevant Ship's SMC and ISSC (together with any other details of the applicable safety management system which the Lender requires).
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4
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Favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws of the Marshall Islands, the applicable Approved Flag State and such other relevant jurisdictions as the Lender may require.
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5
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A favourable opinion from an independent insurance consultant acceptable to the Lender on such matters relating to the insurances for the Relevant Ship as the Lender may require.
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6
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Two desktop valuations of the Relevant Ship, each addressed to the Lender, stated to be for the purposes of this Agreement and dated not earlier than 14 days before the relevant Drawdown Date, each issued in accordance with Clause 14.3, which show a value for the relevant Ship satisfactory to the Lender.
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7
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The financial statements of the Guarantor referred to in clause 10.6 of the Loan Agreement.
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8
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The certificates in respect of International Ship and Port Facility Security Code (ISPS) and the International Safety Management Code (including the guidelines on its implementation) (ISM), adopted by the International Maritime Organisation.
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9
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Documentary evidence that the agent for service of process named in Clause 30 has accepted its appointment.
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10
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Any other documents as the Lender may reasonably require in respect of the Borrowers and any Security Party.
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11
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If the Lender so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Lender.
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Each of the documents specified in paragraphs 2, 3 and 6 of Part A and every other copy document delivered under this Schedule shall be certified as a true and up to date copy by a director or the secretary (or equivalent officer) of the Borrowers or a lawyer.
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EXECUTION PAGE
BORROWERS
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SIGNED by Andreas Nikolaos Michalopoulos
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) /s/ Andreas Nikolaos Michalopoulos
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for and on behalf of
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)
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TAKA SHIPPING COMPANY INC.
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)
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SIGNED by Anastasios Margaronis
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) /s/ Anastasios Margaronis
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for and on behalf of
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)
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FAYO SHIPPING COMPANY INC.
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)
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)
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)
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)
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)
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LENDER
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SIGNED by
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)
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for and on behalf of
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)
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COMMONWEALTH BANK OF AUSTRALIA
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)
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such execution being witnessed by:
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Witness to all
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)
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the above signatures (other than the Lender)
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Name:
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VASSILIKI GEORGOPOULOS
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/s/ Vassiliki Georgopoulos
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SOLICITOR
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Address:
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WATSON, FARLEY & WILLIAMS
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346 SYNGROU AVENUE
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17674 KALLITHEA
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ATHENS-GREECE
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Exhibit 4.20
Date May 20, 2013
DIANA SHIPPING INC.
as Lender
- and-
ELUK SHIPPING COMPANY INC.
as Borrower
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DIANA CONTAINERSHIPS INC.
as Guarantor
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relating to an unsecured term loan facility
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of up to US$50,000,000 to be used for
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general corporate purposes and working
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capital requirements
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THIS AGREEMENT is made on May 20, 2013
BETWEEN
(1)
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DIANA SHIPPING INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the "Lender"), as lender;
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(2)
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ELUK SHIPPING COMPANY INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 and any wholly-owned subsidiary of the Guarantor that becomes an Additional Borrower pursuant to Section 12 hereof (each a "Borrower", collectively the "Borrowers"), as borrowers; and
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(3)
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DIANA CONTAINERSHIPS INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the "Guarantor"), as guarantor.
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BACKGROUND
The Lender has agreed to make available to the Borrowers an unsecured term loan facility of up to Fifty million United States Dollars (US$50,000,000) in up to five (5) advances for general corporate purposes and working capital requirements.
IT IS AGREED as follows:
"Additional Borrower" means any wholly-owned subsidiary of the Guarantor who becomes a party to this Loan Agreement pursuant to Section 12 by executing an Accession Agreement in substantially the form attached hereto as Schedule Il and an amended Note.
"Advance(s)" means any amount advanced to the Borrower with respect to the Loan pursuant to Section 2 or (as the context may require) the aggregate amount of all Advances for the time being outstanding;
"Agreement" means this unsecured term loan facility agreement, as the same shall be amended, modified or supplemented from time to time;
"Availability Period" means the period commencing on the date of this Agreement and ending on the date falling six (6) months after such date;
"Back End Fee" shall have the meaning ascribed thereto in Clause 10;
"Banking Day(s)" means day(s) on which banks are open for the transaction of business in Athens and New York;
"Borrower(s)" shall have the meaning ascribed thereto in the preamble and as the context may require shall include any Additional Borrowers;
"Dollars" and the sign "$" means the legal currency at any relevant time hereunder, of the United States of America;
"Drawdown Date" means in relation to an Advance, the date, being a Banking Day, upon which the Borrower requested that an Advance be made available to the Borrower, and such Advance is made, as provided in Section 2;
"Drawdown Notice" means a notice by which an Advance is requested to be made by the Borrower substantially in the form of Schedule 1 hereto;
"Events of Default" means any of the events or circumstances described in Clause 7;
"Indebtedness" means, as to the Borrower, without duplication, (i) all indebtedness of the Borrower for borrowed money or for the deferred purchase price of property or services, (ii) the maximum amount available to be drawn under all letters of credit, bankers' acceptances and similar obligations issued for the account of the Borrower and all unpaid drawings in respect of such letters of credit, bankers' acceptances and similar obligations, (iii) all indebtedness of the types described in clause (i), (ii), (iv), or (v) of this definition secured by any lien on any property owned by the Borrower, whether or not such indebtedness has been assumed by the Borrower (provided that, if the Borrower has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the fair market value of the property to which such lien relates as determined in good faith by the Borrower, (iv) all contingent obligations of the Borrower, and (v) all obligations under any hedging agreement or under any similar type of agreement;
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