Exhibit 10.1


 


FORM OF MANAGEMENT AGREEMENT


 


THIS
MANAGEMENT AGREEMENT (as the same may be amended or modified from time to time,
this “Agreement”) is dated as of
                        ,
2010 and is by and between Baltic Trading Limited, a Marshall Islands
corporation (the “Company”), and
Genco Shipping & Trading Limited, a Marshall Islands corporation (“Genco” or the “Manager”).


 


RECITALS


 


A. Genco
recently formed the Company in anticipation of the Company’s initial public
offering (the “Public Offering”)
of shares of its Common Stock, par value $0.01 per share (“Common Shares”).


 


B. In
order to provide the Company with commercial, technical, administrative and
strategic services with respect to Vessels it may acquire and its business, the
Company desires to engage the Manager to provide, directly or indirectly, such
services to the Company, and the Manager desires to provide such services to
the Company, on the terms and subject to the conditions set forth in this
Agreement.


 


NOW,
THEREFORE, in consideration of the mutual covenants and premises of the Parties
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:


 


1. DEFINITIONS AND INTERPRETATION


 


1.1 Certain Definitions.  In this
Agreement, including the recitals hereto, unless the context requires
otherwise, the following terms shall have the respective meanings set forth
below:


 


“Accounting Referee” has the meaning
ascribed to such term in Section 8.3.


 


“Administrative Services” has the meaning
ascribed to such term in Section 4.


 


“Affiliates” means, with respect to any
Person as at any particular date, any other Persons that directly or
indirectly, through one or more intermediaries, are Controlled by, Control or
are under common Control with the Person in question, and “Affiliate” means any one of them.


 


“Applicable Laws” means, in respect of any
Person, property, transaction or event, all laws, statutes, ordinances,
regulations, municipal by-laws, treaties, judgments and decrees applicable to
that Person, property, transaction or event, all applicable official
directives, rules, consents, approvals, authorizations, guidelines, orders,
codes of practice and policies of any Governmental Authority having authority
over that Person, property, transaction or event and having the force of law,
and all general principles of common law and equity.


 


“Approved Budget” has the meaning ascribed
to such term in Section 4.4(c).


 


“Board of Directors” means the board of
directors of the Company, as the same may be constituted from time to time.


 


“Books and Records” means all books of
accounts and records, including tax records, sales and purchase records, Vessel
records, computer software, formulae, business reports, plans and projections
and all other documents, files, correspondence and other information of the
Company with respect to the Vessels or the Business (whether or not in written,
printed, electronic or computer printout form).


 

















 


“Business” means the Company’s business of
owning, operating and/or chartering or re-chartering Drybulk Carriers to other
Persons and any other lawful act or activity customarily conducted in
conjunction therewith.


 


“Business Day” means a day other than a
Saturday, Sunday or statutory holiday on which the banks in New York, New York
are required to close.


 


“Cash Available for Distribution” means net
income less cash expenditures for capital items related to the Company’s fleet
of Vessels, other than Vessel acquisitions.


 


“Change of Control” has the meaning ascribed
to such term in Section 10.4.


 


“Charter” means a charter party agreement
between a Company Group Member and any Person that relates to any of the
Vessels (including any voyage or spot charters), and “Charters” means all such charter party
agreements.


 


“Charterer” means any Person that has
entered or enter into, or assumed or assume the obligations under, by novation
or otherwise, a Charter with a Company Group Member.


 


“Chief Financial Officer” means the chief
financial officer of the Company.


 


“Common Shares” has the meaning ascribed to
such term in the recitals to this Agreement.


 


“Class B Shares” means shares of the
Company’s Class B Stock, par value $0.01 per share.


 


“Commercial Management Services” has the
meaning ascribed to such term in Section 3.2.


 


“Commercial Management Services Fee” has the
meaning ascribed to such term in Section 8.1.


 


“Company Breach” has the meaning ascribed to
such term in Section 10.4(b).


 


“Company Group” means the Company and its
Subsidiaries.


 


“Company Group Member” means any member of
the Company Group.


 


“Company Indemnified Persons” has the
meaning ascribed to such term in Section 9.4.


 


“Confidential Information” means all nonpublic or proprietary
information or data (including all oral and visual information or data recorded
in writing or in any other medium or by any other method) relating to a
Disclosing Party that is obtained from the Disclosing Party or any third party
on the Disclosing Party’s behalf, at any time before, simultaneously with, or
after the execution of this Agreement; and, without prejudice to the general
nature of the foregoing definition, the term Confidential Information shall
include, but not by way of limitation, (i) information regarding the
Disclosing Party’s existing or proposed operations, business plans, market
opportunities, and business affairs and (ii) any information ascertainable
by inspection of Confidential Information disclosed to the Receiving Party or
by the analysis of any materials supplied to the Receiving.  Notwithstanding the foregoing, Confidential
Information shall not include any information which (x) is public
knowledge at the time of disclosure or which subsequently becomes public
knowledge other than as a result of a breach of this Agreement; (y) the
Receiving Party can show was made available to it by some other Person who had
a right to do so and who was not subject to any obligation of confidentiality
or restricted use regarding such information; or (z) was developed by the
Receiving Party independently without use of any confidential information
provided hereunder or by a third party in breach of its confidentiality
obligations.


 


2

















 


“Continuing Directors” means, as of any date
of determination, any member of the Board of Directors who was (a) a
member of the Board of Directors immediately after the completion of the Public
Offering or (b) nominated for election or elected to the Board of
Directors with the approval of a majority of the directors then in office who
were either directors immediately after the completion of the Public Offering
or whose nomination or election was previously so approved.


 


“Control” or “Controlled” means, with respect to any Person, the right to
elect or appoint, directly or indirectly, a majority of the directors of such
Person or a majority of the Persons who have the right, including any
contractual right, to manage and direct the business, affairs and operations of
such Person, or the possession of the power to direct or cause the direction of
the management and policies of a Person, whether through ownership of Voting
Securities, by contract, or otherwise.


 


“Costs and Expenses” has the meaning
ascribed to such term in Section 8.1.


 


“Consumer Price Index” means the Consumer Price Index for All
Urban Consumers published by the Bureau of Labor Statistics of the United
States Department of Labor, New York, N.Y. — Northeastern N.J. Area, All Items
(1982-1984 = 100), or any successor index thereto, appropriately adjusted. In
the event that the Consumer Price Index is converted to a different standard
reference base or otherwise revised, the determination of amounts provided for
in this Agreement shall be made with the use of such conversion factor, formula
or table for converting the Consumer Price Index as may be published by the
Bureau of Labor Statistics or, if said Bureau shall not publish the same, then
with the use of such conversion factor, formula or table as may be published by
Prentice-Hall, Inc., or any other nationally recognized publisher of
similar statistical information. If the Consumer Price Index ceases to be
published, and there is no successor thereto, such other index as the Manager
may reasonably select shall be substituted for the Consumer Price Index.


 


“Credit Facility” means any credit facility
agreement to which any Company Group Member may be a party from time to time.


 


“Crew” means the master, officers, employees
and other crew members of a Vessel.


 


“Crew Employment and Support Expenses” means
all Employment Expenses of the Crew and all expenses of a general nature that
are not particularly connected to any individual member of the Crew or any
individual Vessel that are incurred for the purpose of providing Crew
Management Services and, without prejudice to the generality of the foregoing,
shall include the cost of crew standby pay, training schemes for officers and
ratings, cadet training schemes, study pay, recruitment and interviews.


 


“Crew Insurances” means insurances against
crew risks, including death, sickness, repatriation, injury, shipwreck,
unemployment indemnity and loss of personal effects.


 


“Crew Management Services” has the meaning
ascribed to such term in Section 3.3.


 


“Designated Representative” and “Designated Representatives” each have the
meaning ascribed to such terms in Section 11.1.


 


“Disclosing Party” means a Party who has disclosed
Confidential Information hereunder to the other Party or on whose behalf
Confidential Information has been disclosed to the other Party.


 


“Dispute” has the meaning ascribed to such
term in Section 11.1.


 


“Dividend” means any cash dividend paid by
the Company on all outstanding Common Stock or Class B Stock, other than
any Liquidating Dividends.


 


3

















 


“Draft Budget” has the meaning ascribed to
such term in Section 4.4(a).


 


“Drybulk Carrier” means a vessel designed to carry bulk cargo, such as coal, iron
ore and grain, that is loaded in bulk and not in bags, packages or containers.


 


“Drybulk Carrier Assets”
means Drybulk Carriers and any assets that are customarily owned or operated in
conjunction with Drybulk Carriers, in each case that are encompassed within the
definition of the Business.


 


“Employment Expenses” means all costs,
expenses, liabilities and obligations related to or incurred in respect of
employment, including salaries, fees, wages, incentive pay, gratuities,
bonuses, vacation pay, holiday pay, other paid leave, overtime, standby pay,
sick pay, workers’ compensation contributions or costs, benefits and related
costs, statutory contributions and remittances, pension plan contributions and
costs, recruitment costs, Severance Costs, payroll and accounting costs,
training and education costs, discounts, meals, accommodation, administrative
costs, travel costs, perquisites, relocation expenses and uniform expenses.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


 


“Existing Ownership Group” means Genco and
all Affiliates thereof.


 


“Fiscal Quarter” means a fiscal quarter for
the Company or, in the case of the fiscal quarter ending March 31, 2010,
the portion of such fiscal quarter between the date of this Agreement and the
commencement of the next fiscal quarter.


 


“Fiscal Year” means the fiscal year of the
Company, being the twelve-month period ending December 31.


 


“Force Majeure Event” has the meaning
ascribed to such term in Section 12.3.


 


“GAAP” means generally accepted accounting
principles consistently applied in the United States.


 


“Governmental Authority” means any domestic
or foreign government, including any federal, provincial, state, territorial or
municipal government, any multinational or supranational organization, any
government agency (including the SEC), any tribunal, labor relations board,
commission or stock exchange (including the New York Stock Exchange), and any
other authority or organization exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, government.


 


“Initial
Expiration Date” means the last day of the Fiscal Quarter that
contains the fifteenth anniversary of the Initiation Date.


 


“Initial Term” has the meaning ascribed to
such term in Section 10.1.


 


“Initiation
Date” means the date on which the Company takes delivery of its
first Vessel.


 


“Insurances” has the meaning ascribed to
such term in Section 3.4.


 


“ISM Code” means the International Safety
Management Code for the Safe Operation of Ships and for Pollution Prevention as
adopted by the International Maritime Organization by resolution A.741(18), as
the same may have been or may be amended or supplemented from time to time.


 


“ISPS Code” means the International Ship and
Port Facility Security Code adopted by the International Maritime Organization,
as the same may have been or may be amended or supplemented from time to time.


 


“Legal Action” means any action, claim,
complaint, demand, suit, judgment, investigation or proceeding, pending or
threatened, by any Person or before any Governmental Authority.


 


4

















 


“Lenders” means the lenders, facility agent,
security trustee, swap banks, swap agent or other financial institution
contemplated by any Credit Facility.


 


“License” and “Licenses” each have the meaning ascribed to such terms in Section 3.1(p).


 


“Liquidating Dividend” means any dividend or
other distribution in respect of any Common Stock or Class B Stock paid in
connection with the liquidation, dissolution, bankruptcy or winding up of the
Company, any merger of the Company or any sale or other conveyance of all or
substantially all the assets of the Company.


 


“Losses” means losses, expenses, costs,
liabilities and damages, excluding lost profits and consequential damages, but
including interest charges, penalties, fines and monetary sanctions.


 


“Management Services” means, collectively,
the Technical Services, the Administrative Services and the Strategic Services.


 


“Management Fees” has the meaning ascribed
to such term in Section 8.1.


 


“Manager Breach” has the meaning ascribed to
such term in Section 10.3(a).


 


“Manager Indemnified Persons” has the
meaning ascribed to such term in Section 9.3.


 


“Manager Misconduct” has the meaning
ascribed to such term in Section 9.1(a).


 


“Manager’s Personnel” means all individuals
who are employed by or have entered into consulting arrangements with the
Manager or any subcontractor under Section 2.3, other than the Crew.


 


“Mediator’s Report” has the meaning ascribed
to such term in Section 11.2(c).


 


“Omnibus Agreement” means the Omnibus
Agreement, dated as of
                          ,
2010, between Genco and the Company, as the same may be amended or modified
from time to time.


 


“Other Financing Agreements” has the meaning
ascribed to such term in Section 4.2(c).


 


“Parties” means the Company and the Manager.


 


“Person” means an individual, corporation,
limited liability company, partnership, joint venture, trust or trustee,
unincorporated organization, association, Governmental Authority or other
entity.


 


“Pre-delivery Purchases and Expenses” has
the meaning ascribed to such term in Section 5.3.


 


“Pre-delivery Services” has the meaning
ascribed to such term in Section 5.2.


 


“Public Offering” has the meaning ascribed
to such term in the recitals to this Agreement.


 


“President” means the chief executive
officer of the Company.


 


“Questioned Items” has the meaning ascribed
to such term in Section 4.4(b).


 


“Receiving Party” means a Party to whom Confidential
Information of a Disclosing Party has been disclosed hereunder.


 


“Renewal Term” has the meaning ascribed to
such term in Section 10.2.


 


5

















 


“SEC” means the United States Securities and
Exchange Commission.


 


“Severance Costs” means the termination or
severance liabilities, costs and expenses that employers are legally obliged to
provide or pay to or in respect of their employees, or the compensation or
damages owed in lieu of such liabilities, costs and expenses, as a result of
the termination of any employment.


 


“STCW 95” means the International Convention
on Standards of Training, Certification and Watchkeeping to Seafarers, 1978, as
amended in 1995 or any subsequent amendment thereto.


 


“Stores and Equipment” means the stores,
spares, lubricating oil, supplies and equipment that customarily are considered
part of a Drybulk Carrier for which a buyer would ordinarily reimburse a seller
on the sale of such Drybulk Carrier, and does not include consumables that are
not of incremental value to the Drybulk Carrier.


 


“Strategic Opportunity” has the meaning
ascribed to such term in Section 5.1.


 


“Strategic Services” has the meaning
ascribed to such term in Section 5.


 


“Subsidiary” means, with respect to any
Person, (a) a corporation of which more than 50% of the voting power of
shares entitled (without regard to the occurrence of any contingency) to vote
in the election of directors or other governing body of such corporation is
owned, directly or indirectly, at the date of determination, by such Person, by
one or more Persons Controlled by such Person or a combination thereof, (b) a
partnership (whether general or limited) in which such Person or a Person
Controlled by such Person is, at the date of determination, a general or
limited partner of such partnership, but only if more than 50% of the
partnership interests of such partnership (considering all of the partnership
interests of the partnership as a single class) is owned, directly or
indirectly, at the date of determination, by such Person, one or more Persons
Controlled by such Person, or a combination thereof, or (c) any other
Person (other than a corporation or a partnership) in which such Person, one or
more Persons Controlled by such Person, or a combination thereof, directly or
indirectly, at the date of determination, has (i) at least a majority
ownership interest or (ii) the power to elect or direct the election of a
majority of the directors or other governing body of such Person.


 


“Technical Services” has the meaning
ascribed to such term in Section 3.


 


“Term” means the Initial Term and any
Renewal Term, in each case subject to any early termination of this Agreement
as permitted herein.


 


“Termination Payment” means an amount of
cash equal to five times (a) aggregate Management Fees for the past five
completed years of the Term as of the date of termination or such lesser number
of completed years as has transpired divided by (b) five or such lesser
number of completed years as has transpired; except that if this Agreement
terminates in the first year of the Term, the Termination Payment shall equal
five times $1,916,250, or $9,581,240.


 


“Vessels” means
the Drybulk Carriers owned by the Company or any of its Subsidiaries from time
to time as set out in Schedule A, as the same may be amended from
time to time in accordance with Section 2.8.


 


“Voting Securities” means securities of all
classes of a Person entitling the holders thereof to vote on a regular basis in
the election of members of the board of directors or other governing body of
such Person.


 


1.2 Construction.  In this
Agreement, unless the context requires otherwise:


 


6

















 


(a) references
to laws and regulations refer to such laws and regulations as they may be
amended from time to time, and references to particular provisions of a law or
regulation include any corresponding provisions of any succeeding law or
regulation;


 


(b) references
to money refer to legal currency of the United States;


 


(c) “including”
means “including, without limitation,” whether or not so expressed;


 


(d) words
importing the singular include the plural and vice versa, and words importing
gender include all genders; and


 


(e) a
reference to an “approval,” “authorization,” “consent,” “notice” or “agreement”
means an approval, authorization, consent, notice or agreement, as the case may
be, in writing.


 


1.3 Headings.  All article or
section headings in this Agreement are for convenience only and shall not be
deemed to control or affect the meaning or construction of any of the
provisions hereof.


 


2. ENGAGEMENT OF MANAGER


 


2.1 Engagement.  The Company
hereby engages the Manager to provide, upon the Company’s request, the
Management Services specified herein and, subject to the terms hereof, to
manage each Vessel for and on behalf of the relevant Company Group Member, and
the Manager hereby accepts such engagement, all in accordance with the terms of
this Agreement. The Company and the Manager each acknowledge that to the extent
set out in this Agreement, the Manager is acting solely on behalf of, as agent
of and for the account of, the relevant Company Group Member. The Manager shall
advise Persons with whom it deals on behalf of the relevant Company Group
Member that it is conducting such business for and on behalf of such Company
Group Member.


 


2.2 Powers and Duties of the Manager.  The
Manager has the power and authority to take such actions on its own behalf or
on behalf of the relevant Company Group Member as it from time to time
considers necessary or appropriate to enable it to perform its obligations
under this Agreement, subject to customary oversight and supervision of the Company,
its Board of Directors and its executive officers. The Manager shall use its
reasonable best efforts to provide the Management Services hereunder in a
commercially reasonable manner and in accordance with customary ship management
practice and with the care, diligence and skill that a prudent manager of
Vessels such as the Vessels would possess and exercise, except that the Manager
in the performance of its management responsibilities under this Agreement may
have regard to its overall responsibility in relation to all Vessels as may
from time to time be entrusted to its management and in particular, but without
prejudice to the generality of the foregoing, the Manager may allocate
available supplies, manpower and services in such manner as in the prevailing
circumstances the Manager, acting reasonably, considers to be fair and
reasonable.


 


2.3 Ability to Subcontract.  The
Manager may subcontract any of its duties and obligations hereunder to provide
Management Services to any of its Affiliates without the consent of the Company
and may subcontract its duties and obligations hereunder to provide Management
Services to Persons that are not Affiliates with the prior written consent of
the Company, not to be unreasonably withheld; provided,
however, that the Manager may subcontract with any independent
technical manager that the Manager has previously engaged for management of its
own Vessels without the further consent of the Company.  In the event of any subcontract by the
Manager, the Manager shall promptly notify the Company thereof and shall remain
fully liable for the due performance of its obligations under this
Agreement.  To the extent the Manager
subcontracts any Management Services hereunder, the Company shall directly pay
the relevant subcontractor all fees, costs, reimbursements, and other expenses
payable to such subcontractor as the Manager may direct.


 


7

















 


2.4 Outside Activities.  The Company
acknowledges that the Manager and its Affiliates may have business interests
and engage in business activities in addition to those relating to the Company
Group, for their own respective accounts and for the accounts of other Persons.
The Manager and its Affiliates may undertake activities that compete with the
activities of the Company Group.


 


2.5 Exclusive Appointment.  The
Company acknowledges that the appointment of the Manager hereunder is an
exclusive appointment for the Term. The Company shall not appoint other
managers with respect to the Vessels or the Business during the Term, except in
circumstances in which it is necessary to do so in order to comply with
Applicable Law or as otherwise agreed by the Manager in writing.
Notwithstanding the foregoing, this Section 2.5 shall not prohibit the
Company from having its own employees perform Management Services.


 


2.6 Authority of the Parties.  Each
Party represents to the other that it is duly authorized with full power and
authority to execute, deliver and perform its obligations under this Agreement.
The Company represents that the engagement of the Manager has been duly
authorized by the Company and is in accordance with all governing documents of
the Company.


 


2.7 Inspection of Books and Records.  At
all reasonable times and on reasonable notice, any Person authorized by the
Company may inspect, examine, copy and audit the Books and Records of the
Company kept by the Manager pursuant to this Agreement.


 


2.8 Changes to Vessels Subject to this Agreement.  A
list of Vessels subject to this Agreement as of the date hereof is set forth on
Schedule A attached hereto. Unless otherwise agreed to by the
Parties, all Drybulk Carriers that the Company may add to its fleet after the
date hereof shall become subject to the engagement under this Agreement.  The Company, with reasonable notice to the
Manager, may remove any Vessel from the engagement under this Agreement,
provided that the Manager is being engaged to manage such Vessel under a
separate agreement with the Company or the Manager otherwise consents to such
removal. Notwithstanding the provisions of this Section 2.8, a Vessel
shall automatically be removed from engagement under this Agreement upon a sale
or, unless otherwise agreed to by the Parties, a total loss of such Vessel, and
the Company may sell any Vessel subject to the engagement under this Agreement
at any time in its sole discretion. Upon any addition of a Vessel to this
engagement or any removal of a Vessel from this engagement, the Parties shall
amend Schedule A to reflect such change.


 


3. TECHNICAL SERVICES


 


Subject
to Section 9.2, the Manager shall, at its own expense, provide to the
Company the services described in this Section 3 (collectively, the “Technical Services”).


 


3.1 Technical Vessel Management Services.  Commencing
with the acquisition of each Vessel by any Company Group Member, the Manager
shall provide all usual and customary Vessel technical management services with
respect to the operation of such Vessel, including the following:


 


(a) supervising
the day-to-day operation, maintenance, safety and general efficiency of the
Vessel to ensure the seaworthiness and maintenance condition of the Vessel;


 


(b) arranging
for and supervising general and routine repairs, alterations and maintenance of
the Vessel;


 


(c) purchasing
the necessary stores, spares, lubricating oil, supplies and equipment (other
than such equipment as is covered by Section 9.2) for the operation of
such Vessel;


 


8

















 


(d) appointing
such surveyors, supervisors, technical consultants and other support for the
Vessel on behalf of the relevant Company Group Member as the Manager may
consider from time to time to be necessary;


 


(e) providing
technical and shore-side support for the Vessel and attending to all other
technical matters necessary for the operation of the Vessel;


 


(f) handling
of the Vessel while in ports or transiting canals, either directly or by use of
Vessel agents, unless otherwise handled by the Charterer;


 


(g) procuring
and arranging for port entrance and clearance, pilots, Vessel agents, consular
approvals, and other services necessary or desirable for the management and
safe operation of the Vessel, unless otherwise procured or arranged by the
Charterer;


 


(h) preparing,
issuing (or causing to be issued) to shippers customary freight contracts,
cargo receipts and bills of lading, unless prepared, issued or arranged for by
the Charterer;


 


(i) performing
all usual and customary duties relating to the loading and discharging of
cargoes at all ports, unless performed by the Charterer;


 


(j) arranging
for the prompt dispatch of the Vessel from loading and discharging ports in
accordance with the instructions of the Charterer and for transit through
canals;


 


(k) subject
to Section 4.5(b), arranging for employment of counsel and the
investigation, follow-up and negotiation of the settlement of all claims
arising in connection with the operation of the Vessel;


 


(l) coordinating
the Company’s payment of all ordinary charges incurred in connection with the
management of the Vessel, including canal tolls, port charges, any amounts due
to any Governmental Authority with respect to the Crew and all duties and taxes
in respect of cargo or freight (whether levied against the Vessel or the
Company), unless otherwise paid by the Charterer;


 


(m) promptly
upon the Company’s request, reporting to the Company the Vessel’s movement,
position at sea, arrival and departure dates, and major casualties and damages
received or caused by the Vessel;


 


(n) informing
the Company promptly of any release or discharge of oil or other hazardous
material not in compliance with Applicable Laws;


 


(o) upon
the Company’s request, providing the Company with a copy of any Vessel
inspection reports, valuations, surveys, insurance claims and other similar
reports prepared by ship brokers, valuators, surveyors, classification
societies or insurers; and


 


(p) arranging
for any and all licenses, permits, franchises, registrations and similar
authorizations of any Governmental Authority that are necessary and used in the
operation of the Vessel, the cost of which shall be paid directly by the
Company (each a “License” and,
collectively, the “Licenses”).


 


3.2 Commercial Management Services.  Commencing
with the acquisition of each Vessel by any Company Group Member and subject to Section 2.5,
the Manager shall provide all usual and customary commercial management
services with respect to such Vessel, including the following (collectively,
the “Commercial Management Services”):


 


(a) marketing
and promoting the Vessel;


 


9

















 


(b) identifying,
negotiating and securing Charterers and Charters and other employment for the
Vessels for and on behalf of the relevant Company Group Member;


 


(c) monitoring
proper payment to any Company Group Member or its nominee of all hire and
freight revenues or other moneys of whatsoever nature arising out of the
employment of the Vessel or otherwise in connection with the Vessel to which
the Company or any Company Group Member may be entitled;


 


(d) providing
voyage estimates and accounts and calculating and invoicing of hire, freights,
demurrage and dispatch moneys due from or due to the Charterers of the Vessel;


 


(e) administering
the Charters; and


 


(f) taking
all other actions relating to commercial management of the Vessel as the
Manager deems necessary to fulfill its obligations under this Agreement.


 


3.3 Crew Management Services.  Commencing
with or, to the extent reasonably necessary for the provision of the Crew
Management Services in an efficient manner, prior to the acquisition of each
Vessel by a Company Group Member, the Manager shall provide all usual and
customary crew management services in respect of such Vessel and shall manage
all aspects of the employment of the Crew, including the following
(collectively, the “Crew Management Services”):


 


(a) procuring,
supervising and managing suitably qualified Crew, which in the opinion of the
Manager is required for the Vessel in accordance with the STCW 95 requirements;


 


(b) recruiting,
selecting, hiring and engaging the Vessel’s Crew, and arranging and paying, at
its own expense, all compensation and administering payroll arrangements,
pensions and other benefits and insurance for the Crew (including processing
all claims);


 


(c) ensuring
that the Applicable Laws of the flag of the Vessel and all places where the
Vessel trades are satisfied in respect of manning levels, rank, qualification
and certification of the Crew and employment regulations, including any
statutory withholding tax requirements and social insurance requirements;


 


(d) ensuring
that all members of the Crew have passed a medical examination with a qualified
doctor certifying that they are fit for the duties for which they are engaged
and are in possession of valid medical certificates issued in accordance with
appropriate flag state requirements and, in the absence of applicable flag
state requirements, the medical certificate shall be dated not more than three
months prior to the respective Crew members leaving their country of domicile and
shall be maintained for the duration of their service on board the Vessel;


 


(e) ensuring
that the Crew have command of the English language at a sufficient standard to
enable them to perform their duties effectively and safely;


 


(f) arranging
for all transportation (including repatriation), board and lodging for the Crew
as and when required at rates and types of accommodations as are customary in
the industry;


 


(g) attending
to and supervising the training, discipline, discharge and other terms and conditions
of employment of the Crew;


 


(h) conducting
all union negotiations for and on behalf of the Company pursuant to Section 4.5(c);


 


(i) administering
the Company’s and the Manager’s drug and alcohol policies in respect of the
Crew;


 


10














 


(j) ensuring
that any concerns of the Charterer with respect to the master or any of the
officers or other members of the Crew are appropriately investigated in a
timely manner, communicating the results of such investigations to the
Charterer and the Company and, if such concerns are well-founded, ensuring that
any appropriate remedial actions are promptly taken;


 


(k) keeping
and maintaining full and complete records of any labor agreements that may be
entered into with the Crew and reporting to the Company reasonably promptly
after notice or knowledge thereof is received of any change or proposed change
in labor agreements or other regulations relating to the Crew;


 


(l) negotiating
the settlement of all wages with the Crew during the course of and upon termination
of their employment;


 


(m) handling
all details and negotiating the settlement of any and all claims of the Crew
including those arising out of accidents, sickness, death, loss of personal
effects, disputes under articles or contracts of enlistment, policies of
insurance and fines;


 


(n) keeping
and maintaining all administrative and financial records relating to the Crew
as required by Applicable Law and any applicable labor or collective agreements
of the Company or the Manager, and promptly rendering to the Company any and
all reports when, as and in such form as reasonably requested by the Company;
and


 


(o) performing
any other function in connection with the Crew as may be reasonably requested
by the Company from time to time.


 


3.4 Insurance. The Manager shall
arrange for insurance for each Vessel for and on behalf of the relevant Company
Group Member against physical damage, total loss, third party liability and
other risks normally insured against in accordance with industry practice,
including the following (collectively with any additional insurances required
under any Credit Facility, the “Insurances”):


 


(a) usual
hull and machinery marine risks (including crew negligence) and excess
liabilities;


 


(b) protection
and indemnity risks (including pollution risks and Crew Insurances); and


 


(c) war
risks (including protection and indemnity and crew risks);


 


each
in accordance with the customary practice of prudent owners of Vessels of a
similar type to each Vessel, with insurance companies, underwriters or
associations in amounts and on terms that are in accordance with industry
practice, and in any event, are no less than the market value of the Vessel
(and in the case of protection and indemnity coverage, entered for the Vessel’s
full gross tonnage). Notwithstanding the foregoing, the Manager shall not
arrange for off-hire insurance for the Vessels unless requested by the Company.


 


The
Manager shall arrange for and on behalf of the Company any such additional
insurance required under any Credit Facility, including, as applicable,
arranging for any of the Lenders thereto being named as “loss payee” or “additional
insured” in accordance with the terms of any Credit Facility.


 


The
relevant Company Group Member shall directly pay the relevant insurer all
premiums and calls on the Insurances promptly and in any event by their due
date. The Manager shall cooperate with the Company’s insurers and underwriters
with respect to the investigation or settlement of claims by the relevant
Company Group Member or any third party under the Insurances, including taking
necessary


 


11

















 


steps
to have repairs contemplated in Section 9.2(a) covered by the
applicable insurance policy or policies.


 


3.5 Drydocking, Repairs and Improvements.  Subject
to Section 9.2, the Manager shall arrange for and supervise the
drydockings, repairs, alterations and maintenance of each Vessel to the
standards required to ensure that such Vessel will comply, in all material
respects, with the laws of the flag of such Vessel and of the jurisdictions
where such Vessel trades and all requirements and recommendations of the
applicable classification society.  The
Company shall directly pay the relevant third party providing drydocking ,
repair, alteration or maintenance services all fees and costs for the same.


 


3.6 Regulatory Compliance Services.  The
Manager shall operate and maintain the Vessels, and take all actions necessary
to ensure that each Vessel is, in compliance with all Applicable Laws, including
the laws of the applicable flag each Vessel may bear, the Applicable Laws of
the countries to which the Vessels trade and with the requirements of the
relevant classification society, the ISM Code and the ISPS Code.


 


4. ADMINISTRATIVE SERVICES


 


The
Manager shall, at its own expense, provide to the Company the services
described in this Section 4 (collectively, the “Administrative Services”).


 


4.1 Accounting and Records.  The
Manager shall, on behalf of the Company, establish an accounting system, including
the development, implementation, maintenance and monitoring of internal control
over financial reporting and disclosure controls and procedures, and maintain
Books and Records, with such modifications as may be necessary to comply with
Applicable Laws. The Books and Records shall contain particulars of receipts
and disbursements relating to the Company’s assets and liabilities and shall be
kept pursuant to normal commercial practices that will permit financial
statements to be prepared for the Company in accordance with GAAP. The Books
and Records shall be the property of the Company but shall be kept at the
Manager’s primary office or such other place as the Company and the Manager may
mutually agree. Upon expiration or termination of this Agreement, all of the
Books and Records shall be provided to the Company or a new manager pursuant to
Section 10.5(e).


 


4.2 Reporting Requirements.  The
Manager shall prepare and deliver to the President and the Chief Financial
Officer the following reports, which the Manager shall use its reasonable best
efforts to prepare and deliver within the time periods specified below or, if
not so specified, within the time period requested by the relevant party:


 


(a) a
quarterly report to be delivered within 45 days of the end of each Fiscal
Quarter setting out the interim financial results of the Company for such
quarter and for the applicable Fiscal Year through the end of such Fiscal
Quarter;


 


(b) a
draft of the reports, certificates, documents and other information required
under any Credit Facility and any other financing arrangements of the Company (“Other Financing Agreements”) to be
delivered at least two Business Days prior to their required delivery to the
Lenders or lenders under Other Financing Agreements;


 


(c) as
and when requested by the Board of Directors, the President or the Chief
Financial Officer, draft reports regarding financial and other information
required in connection with Applicable Laws (including annual and other reports
that may be required to be filed under the Exchange Act and all other
Applicable Laws); and


 


12

















 


(d) as
and when reasonably requested by the Company from time to time, such other
reports with respect to financial and other information of the Company.


 


4.3 Financial Statements and Tax Returns.  At
the instruction of the Chief Financial Officer, the Manager shall prepare and
deliver for review by the Chief Financial Officer and the Audit Committee of
the Board of Directors the following which the Manager shall use its reasonable
best efforts to prepare and deliver within the time periods specified below or,
if not so specified, within the time period requested by the relevant party:


 


(a) within
30 days of the end of each Fiscal Quarter, unaudited financial statements
of the Company for such Fiscal Quarter, to be reviewed by the external auditors
of the Company, prepared in accordance with GAAP and the rules and
regulations of the SEC, on a consolidated basis with all Subsidiaries of the Company;


 


(b) within
40 days of the end of each Fiscal Year, financial statements of the
Company for such Fiscal Year, to be audited by the external auditors of the
Company, prepared in accordance with GAAP and the rules and regulations of
the SEC, on a consolidated basis with all Subsidiaries of the Company; and


 


(c) tax
returns for the Company and all of its Subsidiaries required to be filed by
Applicable Laws.


 


Notwithstanding
the foregoing, in the event that the Company’s reporting obligations are accelerated
under the Exchange Act beyond what such obligations are at the time of the
Public Offering, the Manager shall use its reasonable best efforts to provide
to the Company the financial statements referred to in clauses (a) and (b) above
within such periods as shall be required for the Company to comply with any
reporting requirements under the Exchange Act or other similar applicable laws
and regulations.


 


In
addition, the Manager shall attend to the time calculation and payment of all
taxes payable by the Company. At the instruction of the Chief Financial
Officer, the Manager shall cause the Company’s external accountants to review
the Company’s unaudited financial statements, audit the Company’s annual
financial statements and finalize tax returns. The Manager shall make available
to the Company’s accountants the relevant Books and Records for the Company and
shall assist the accountants in their duties.


 


4.4 Budgets and Corporate Planning.


 


(a) Draft Budgets


 


On
or before December 15 of each year, the Manager, in consultation with the
President and the Chief Financial Officer, shall prepare and submit to the
Board of Directors a detailed draft budget for the next Fiscal Year in a format
acceptable to the Board of Directors and generally used by the Manager, which
shall include: (1) a statement of estimated revenue and expenses,
including Costs and Expenses; and (2) a proposed budget for capital
expenditures, repairs and alterations, including proposed expenditures in
respect of drydockings, together with an analysis as to when and why such
expenditures, repairs and alterations may be required (the “Draft Budget”).


 


(b) Process for Finalizing the Draft Budget.


 


For
a period of seven (7) days after receipt of the Draft Budget, the Board of
Directors may request further details and submit written comments on the Draft
Budget. If, after reviewing the Draft Budget, the Company does not agree with
any term thereof, the Company shall, within the same seven (7) day period,
give the Manager notice of such disagreements and terms (the “Questioned Items”) and a proposal for
resolution of each such Questioned Item. The Company and the Manager shall
endeavor to resolve any


 


13

















 


such
differences between them with respect to the Questioned Items. In resolving any
Questioned Item, the Company and the Manager shall consider, among other
things, the Company’s obligations under any relevant Charters, Credit Facility,
or Other Financing Agreement.


 


(c) Approved Budget.


 


The
Manager shall use its commercially reasonable efforts to prepare and deliver to
the Company a revised budget that has been approved by the Board of Directors
(the “Approved Budget”) by December 31
of the preceding Fiscal Year. However, the Company acknowledges that the
Approved Budget is only an estimate of the performance of the Vessels and the
Manager makes no assurance, representation or warranty that the actual
performance of the Vessels in the applicable Fiscal Year will correspond to the
estimates contained in the Approved Budget for such Fiscal Year. The Parties
acknowledge that any projections contained in the Approved Budget are subject
to and may be affected by changes in financial, economic and other conditions
and circumstances beyond the control of the Parties.


 


(d) Amendments to Approved Budget.


 


The
Manager may, from time to time, in any Fiscal Year propose amendments to the
Approved Budget upon at least fifteen (15) days prior notice to the
Company, in which event the Company shall have the right to approve the
amendments in accordance with the process set out in Section 4.4(b), with
the relevant time periods being amended accordingly. Whenever, due to
circumstances beyond the reasonable control of the Manager, emergency
expenditures are required to ensure that any Vessels are operated and
maintained as required under any applicable Charters, the Manager may make such
emergency expenditures and reasonably request prompt reimbursement thereof, to
the extent that such items are the responsibility of the Company, including
pursuant to Sections 5.4 and 9.2, even if such expenditures are not
included or reflected in the Approved Budget.


 


4.5 Legal and Securities Compliance Services.


 


(a) Responsibilities of the Manager.


 


The
Manager shall assist the Company with the following items, whether or not
related to any of the Vessels:


 


(i) compliance
with all Applicable Laws, including all relevant securities laws and the rules and
regulations of the SEC, the New York Stock Exchange and any other securities
exchange upon which the Company’s securities are listed;


 


(ii) arranging
for the provision of advisory services to the Company with respect to the
Company’s obligations under applicable securities laws in the United States and
disclosure and reporting obligations under applicable securities laws,
including the preparation for review, approval and filing by the Company of
reports and other documents with the SEC and all other applicable regulatory
authorities;


 


(iii) maintaining
the Company’s corporate existence and good standing in all necessary
jurisdictions and assisting in all other corporate and regulatory compliance
matters;


 


(iv) conducting
investor relations functions on behalf of the Company; and


 


(v) adjusting
and negotiating settlements, with or on behalf of claimants or underwriters, of
any claim, damages for which are recoverable under insurance policies.


 


14

















 


(b) Administration and Settlement of Legal
Actions.


 


If
any Legal Action is commenced against or is required to be commenced in favor
of any Company Group Member or any of the Vessels, the Manager shall arrange
for the commencement or defense of such Legal Action, as the case may be, in
the name of, on behalf of and at the expense of the Company Group Member,
including retaining and instructing legal counsel, investigating the substance
of the Legal Action and entering pleadings with respect to the Legal Action.
The Manager shall assist the Company in administering and supervising any such
Legal Actions and shall keep the Company advised of the status thereof. The
Manager may settle any Legal Action on behalf of a Company Group Member where
the amount of settlement is less than $500,000 with the approval of the
President or the Chief Financial Officer and, in excess of such amount, with
the approval of the Board of Directors.


 


(c) Labor Relations Proceedings.


 


For
Legal Actions in favor of or against any Company Group Member that relate to
labor relations or employment proceedings, strikes or collective bargaining,
the Manager shall represent the Company Group Member in any such labor
relations or employment proceedings and shall undertake any labor relations or
employment negotiations in respect of any of the Vessels or any Company Group
Member on behalf of such Company Group Member, should such representation or
negotiations be required, with such labor organization or other Person that
becomes lawfully entitled to represent the Crew. The Manager shall keep the
Company advised of the progress of any such labor relations proceedings or
negotiations. The Manager may enter into collective bargaining agreements and
other labor or employment agreements and any material amendments thereto; provided, however, that such agreements
and amendments must be approved by the Board of Directors if the terms and
conditions of any such agreements or amendments are inconsistent, in a material
and adverse way to the Company Group Member, with other collective bargaining
agreements concerning or in respect of the Crew.


 


(d) Interaction with Regulatory Authorities.


 


Notwithstanding
anything in this Section 4 or otherwise, the Manager shall not act for or
on behalf of the Company in its relationships with regulatory authorities
except to the extent specifically authorized by the Company from time to time.


 


4.6 Bank Accounts.


 


(a) Administration by Manager.


 


The
Manager shall oversee banking services for the Company and shall establish in
the name of the Company an operating account, a retention account and such
other accounts with such financial institutions as the Company may request. The
Manager shall administer and manage all of the Company’s cash and accounts,
including making any deposits and withdrawals reasonably necessary for the
management of its business and day-to-day operations. The Manager shall
promptly deposit all moneys payable to the Company and received by the Manager
into a bank account held in the name of the Company.


 


(b) Payments from Operating Account.


 


The
Company shall ensure that all charter hire associated with each Charter is paid
by the applicable Charterer into the operating account. Unless otherwise
instructed by the Company, the Manager shall instruct the financial
institutions at which the accounts have been established to pay from the
operating account, as and when required, amounts payable under any Credit
Facility or Other Financing Agreement.


 


15

















 


4.7 License.  The Manager
shall procure, and the Company shall enter into, a license agreement that
permits the Company to use the “Genco” name and trademark in connection with
its business.


 


4.8 Other Administrative Services.


 


The
Manager shall:


 


(a) develop,
maintain and monitor internal audit controls, disclosure controls and
information technology for the Company;


 


(b) assist
with arranging board meetings and preparing board and committee meeting
materials, including, as applicable, agendas, discussion papers, analyses and
reports;


 


(c) prepare
and provide such reports and accounting information so as to permit the Board
of Directors to determine the amount of the Company’s Cash Available for
Distribution and Dividends to the Company’s stockholders, and to assist the
Company in making arrangements with the Company’s transfer agent for the
payment of Dividends to the stockholders;


 


(d) obtain,
on behalf of the Company, general insurance, director and officer liability
insurance and other insurance of the Company not related to the Vessels that
would normally be obtained for a company in a similar business to that of the
Company;


 


(e) administer
payroll services, benefits and directors fees, as applicable, for the Crew, the
President and the Chief Financial Officer and any other employee, officer or
director of the Company;


 


(f) provide
office space and office equipment for personnel of the Company at the location
of the Manager or as otherwise reasonably designated by the Company, and
clerical, secretarial, accounting and administrative assistance as may be
reasonably necessary;


 


(g) provide
all administrative services required in connection with any Credit Facility or
Other Financing Agreement;


 


(h) negotiate
loan and credit terms with lenders in the ordinary course and monitor and
maintain compliance therewith;


 


(i) negotiate
and arrange for interest rate swap agreements, foreign currency contracts and
forward exchange contracts;


 


(j) monitor
the performance of investment managers;


 


(k) at
the request and under the direction of the Company, handle all administrative
and clerical matters in respect of (i) the call and arrangement of all
annual and special meetings of stockholders, (ii) the preparation of all
materials (including notices of meetings and proxy or similar materials) in
respect thereof and (iii) the submission of all such materials to the
Company in sufficient time prior to the dates upon which they must be mailed,
filed or otherwise relied upon so that the Company has full opportunity to
review, approve, execute and return them to the Manager for filing or mailing
or other disposition as the Company may require or direct;


 


(l) provide,
at the request and under the direction of the Company, such communications to
the transfer agent for the Company as may be necessary or desirable;


 


(m) make
recommendations to the Company for the appointment of auditors, accountants,
legal counsel and other accounting, financial or legal advisers, and technical,
commercial, marketing or other


 


16

















 


independent
experts; provided, however, that
nothing herein shall permit the Manager to engage any such adviser or expert
for the Company without the Company’s specific approval;


 


(n) attend
to all matters necessary for any reorganization, bankruptcy or insolvency
petitions or proceedings, liquidation, dissolution or winding up of the
Company;


 


(o) attend
to all other administrative matters necessary to ensure the professional
management of the Company’s business or as reasonably requested by the Company
from time to time.


 


5. STRATEGIC SERVICES


 


The
Manager shall, at its own expense and upon the Company’s reasonable request,
provide to the Company the services described in this Section 5
(collectively, the “Strategic Services”).


 


5.1 Acquisitions, Charter Parties and Finance.  The
Manager shall provide strategic, corporate planning, business development and
advisory services to the Company, including the following:


 


(a) providing
general strategic planning services and implementing corporate strategy,
including developing acquisition and divestiture strategies;


 


(b) identifying,
negotiating and securing opportunities for the Company to acquire or to
construct Drybulk Carriers, and negotiating and carrying out the purchase of
existing and any newbuilding Drybulk Carriers;


 


(c) (i) identifying,
negotiating and securing opportunities for the Company to acquire or merge with
companies or other Persons that own or operate Drybulk Carriers or are
otherwise involved in the drybulk shipping industry, (ii) negotiating and
carrying out the purchase of such companies or other Persons, and (iii) working
to integrate any such acquired businesses;


 


(d) maintaining
and managing relationships between the Company and the Charterers and potential
charterers, shipbuilders, insurers, Lenders and potential financiers of the
Company and other shipping industry participants;


 


(e) arranging,
negotiating and procuring pre-delivery and post-delivery financing or
refinancing for the construction of any Drybulk Carriers and financing or
refinancing for the acquisition of existing Drybulk Carriers;


 


(f) identifying,
negotiating and implementing potential divestitures or dispositions of any of
the Vessels and any other of the Company’s Drybulk Carrier Assets, and
evaluating and recommending the sale of all or any part of the Business;


 


(g) identifying,
investigating and implementing tax planning, leasing or other tax savings
initiatives;


 


(h) assisting
the Company in connection with any future offerings of Common Shares or other
securities the Company may determine is desirable, all under the direction and
supervision of the Board of Directors, the President, and the Chief Financial
Officer;


 


(i) subject
to the oversight of the Board of Directors and supervision of the President and
the Chief Financial Officer, generally undertaking the day-to-day management of
the Business; and


 


(j) providing
such other strategic, corporate planning, business development and advisory
services as the Company may reasonably request from time to time.


 


17

















 


If,
pursuant to the provision of Strategic Services, the Manager identifies a
potential opportunity for the Company (“Strategic
Opportunity”) and subject to allocations of corporate opportunities
to Genco pursuant to the Company’s Articles of Incorporation and the Omnibus
Agreement, (i) the Manager shall present the Strategic Opportunity to the
President and the Chief Financial Officer for further consideration and
presentation to the Board of Directors, and (ii) the Board of Directors or
an appropriate committee thereof shall approve or reject the Strategic
Opportunity.


 


5.2 Pre-delivery Services.  For
the acquisition of any Vessel, the Manager shall oversee and supervise, in all
material respects, the construction of any newbuilding Vessel or the
acquisition of any existing Vessel to be purchased and made subject to this
Agreement, as the case may be, prior to its delivery, including the following
(collectively, the “Pre-delivery Services”),
as applicable:


 


(a) negotiating
the shipbuilding contract and specifications and related documentation;


 


(b) attending
to plan approval for the design of the newbuilding Drybulk Carrier;


 


(c) arranging
for and supervising alterations and changes to the newbuilding Drybulk Carrier;


 


(d) liaising
with the ship builder, supervising the ship builder’s progress and overseeing
construction to ensure the ship builder is constructing the newbuilding Drybulk
Carrier in accordance with the relevant shipbuilding contract, design and
specifications;


 


(e) negotiating
the purchase and sale agreement and related documentation;


 


(f) liaising
with classification societies, suppliers and other service providers;


 


(g) procuring,
supervising and managing suitably qualified Crew to test the Vessel in the
water prior to delivery;


 


(h) attending
to the purchasing and other activities related to the Pre-delivery Purchases
and Expenses; and


 


(i) arranging
for registration of the Vessel under the relevant flag and in accordance with
Applicable Laws and registration of the Vessel with the relevant classification
society and other authorities as may be required for obtaining trading, canal
and other marine certificates for the Vessel.


 


5.3 Pre-delivery Purchases and Expenses.  Prior
to the delivery to the relevant Company Group Member of any Vessel, the Manager
shall arrange for provision of the necessary stores, spares, lubricating oil,
supplies, equipment and services related to the delivery of the Vessel (all of
which will be set out by the Manager in a pre-delivery budget for each Vessel,
which shall be subject to the acknowledgment and consent of the Company) to
ensure the seaworthiness and readiness for service of each such Vessel, and the
Company shall pay for the fees associated with the relevant classification
society or the registration of the Vessel in the name of the relevant Company
Group Member under the relevant flag, whether a newbuilding or an existing
Vessel


 


5.4 Estimates and Consultation.  For
each newbuilding Drybulk Carrier, if any, the Manager shall consult with and
obtain the approval of the Company with respect to all material decisions to be
made regarding the newbuilding. The Manager shall also consult with the Company
regarding, and provide to the Company an estimate of the cost of, the
Pre-delivery Services and the various Pre-delivery Purchases and Expenses for any
Vessel provided other than by the Manager, for approval by the Company
reasonably in advance of such services being provided or such items being
purchased.


 


18

















 


6. EMPLOYEES AND MANAGER’S PERSONNEL


 


6.1 Manager’s Personnel.  The Manager
shall provide the Management Services hereunder through the Manager’s Personnel
and the Crew. The Manager shall be responsible for all aspects of the
employment or other relationship of the Manager’s Personnel and Crew as required
in order for the Manager to perform its obligations hereunder, including
recruitment, training, staffing levels, compensation and benefits, supervision,
discipline and discharge, and other terms and conditions of employment or
contract. However, the Manager shall remain directly responsible and liable to
the Company to carry out all of its obligations under this Agreement, whether
performed directly or subcontracted to another Person, and the Manager (and not
the Company) shall be responsible for the compensation and reimbursement of all
such other Persons.


 


6.2 Officers


 


(a) Executive Officers.  The
Manager shall regularly consult with the President and Chief Financial Officer
as to the provision of Management Services and the Company’s Business. The
Manager shall make available to the Company such executive officers to which
the Company and the Manager or its Affiliates may agree, who shall assist in
managing the day-to-day operations and affairs of the Company. Notwithstanding
the foregoing, the Company may employ directly any other officers or employees
as it may deem necessary, and any such officers and employees will not be
subject to this Agreement.


 


(b) Termination and Replacement of Executive
Officers.  The Board of Directors may require any officer
that is provided by the Manager of its Affiliates as an executive officer (or
otherwise to perform the duties of an executive officer) of the Company to be
relieved of his or her duties with respect to, and no longer perform any of the
Management Services for, the Company for any reason not prohibited by
Applicable Laws. Such officer may continue to be employed by the Manager but
shall no longer provide any Management Services hereunder, unless otherwise
agreed by the Parties.


 


If
any officer who is made available to the Company by the Manager or any of its
Affiliates, as the case may be, resigns, is terminated or otherwise vacates his
or her office, the Manager shall, as soon as practicable after acceptance of
any resignation or after such termination and upon the Company’s request, use
commercially reasonable efforts to identify suitable candidates for replacement
of such officer for the approval by the Board of Directors.


 


(c) Other Duties of the Manager’s Personnel.  The
Company acknowledges that any officers provided by the Manager and the other
Manager’s Personnel that provide Management Services may engage in business
activities of the Manager and its Affiliates that are unrelated to the Company
and that conflicts of interest may exist.


 


(d) Reporting Structure.  The
President and the Chief Financial Officer shall report to and be under the
direction of the Board of Directors. The Manager shall report to the Company
and the Board of Directors through the President or the Chief Financial
Officer.


 


7. COVENANTS OF THE MANAGER


 


The
Manager hereby agrees and covenants with the Company that, during the Term, the
Manager shall:


 


19

















 


(a) obtain
and maintain for its benefit professional indemnity insurance and other
insurance as is reasonable having regard to the nature and extent of the
Manager’s obligations under this Agreement;


 


(b) exercise
all due care, skill and diligence in carrying out its duties under this
Agreement as required by Applicable Laws;


 


(c) provide
the President, the Chief Financial Officer, and the Board of Directors with all
information in relation to the performance of the Manager’s obligations under
this Agreement as the President, the Chief Financial Officer, or the Board of
Directors may reasonably request;


 


(d) use
its reasonable best efforts to have all material property of the Company
clearly identified as such, held separately from property of the Manager and,
where applicable, in safe custody;


 


(e) use
its reasonable best efforts to have all property of the Company (other than
money to be deposited to any bank account of the Company) transferred to or
otherwise held in the name of the Company or any nominee or custodian appointed
by the Company;


 


(f) use
its reasonable best efforts to cause (i) the Company to own or possess all
Licenses that are necessary and used in the operation of its business as of the
date hereof, (ii) all such Licenses to be in full force and effect at all
times, and (iii) all required filings with respect to such Licenses to be
timely made and all required applications for renewal thereof to be timely
filed;


 


(g) use
its reasonable best efforts to retain at all times a qualified staff so as to
maintain a level of expertise sufficient to provide the Management Services;
and


 


(h) use
its reasonable best efforts to keep full and proper books, records and accounts
showing clearly all transactions relating to its provision of Management
Services in accordance with established general commercial practices and in
accordance with GAAP, and allow the Company and its representatives to audit
and examine such books, records and accounts at any time during customary
business hours.


 


8. MANAGER’S COMPENSATION  AND
REIMBURSEMENT


 


8.1 Fees for Management Services; Reimbursement.  In
consideration for the provision of Management Services by the Manager to the
Company, the Company shall pay the Manager the amounts set forth on Schedule B
hereto in accordance with Section 8.2 (“Management
Fees”).  In addition, the
Company shall reimburse the Manager for (a) all of the reasonable direct
and indirect costs and expenses incurred by the Manager and its Affiliates in
providing Management Services and (b) the pro rata portion of the salary
and other costs incurred by the Manager in employing and compensating an
internal auditor who will be made available to the Company on a part time
basis.


 


8.2 Invoicing.  The Manager
shall, in good faith, determine the expenses related to the Management Services
that are allocable to the Company Group in any reasonable manner determined by
the Manager and shall provide to the Company on a quarterly basis an invoice
for the Costs and Expenses to be paid under Section 8.1, which invoice
shall contain a description in reasonable detail of the Costs and Expenses that
comprise the aggregate amount of the payment being invoiced. The Manager shall
maintain the records of all Costs and Expenses incurred, including any
invoices, receipts and supplementary materials as are necessary or proper for
the settlement of accounts between the Parties. The Company shall pay such
invoices within thirty (30) days of receipt, unless the invoice is being
disputed in accordance with this Agreement.


 


20






 










 


8.3 Dispute of Invoice.  If the Company,
in good faith, disputes the amount of an invoice, the Company shall give
written notice of such dispute (including the particulars of such dispute) to
the Manager on or before the due date with respect to all or any portion of
such invoice. Upon receipt of such notice, the Manager shall furnish the
Company with additional supporting documentation to reasonably substantiate the
amount of the invoice or the Performance Fee calculation, as applicable. Upon
delivery of such additional documentation, the Company and the Manager shall
cooperate in good faith and use commercially reasonable efforts to resolve such
dispute. If they are unable to resolve the dispute within (i) ten (10) Business
Days of the delivery of such additional supporting information (in the case of
an invoice) or (ii) five (5) days of such delivery (in the case of
the Performance Fee calculation), the dispute shall be referred for resolution
to a firm of independent accountants of nationally recognized standing in the
United States reasonably satisfactory to each of the Manager and the Company
(the “Accounting Referee”), which
shall determine the disputed amounts within thirty (30) days of the
referral of such invoice dispute to such Accounting Referee, or within ten (10) days
of the referral of such Performance Fee calculation dispute. The determination
of the Accounting Referee shall not require the Company to pay more than the
amount in dispute nor require the Manager to return any amount previously paid
by the Company. The fees and expenses of the Accounting Referee shall be borne
equally by the Company and the Manager. If any invoice dispute is resolved in
favor of the Manager, the Company shall make payment to the Manager within ten (10) days
of resolution of the dispute. Notwithstanding the foregoing, in no event shall
the Company be entitled to withhold any amounts other than those portions of
the applicable payment that are in dispute.


 


8.4 Direction to Pay.  By written
notice to the Company, the Manager may direct the Company to pay any amounts
owing under this Agreement directly to an Affiliate of the Manager pursuant to
a subcontracting arrangement relating to this Agreement.


 


9. LIABILITY OF THE MANAGER; INDEMNIFICATION


 


9.1 Liability of the Manager.  The
Manager shall not be liable to the Company for any Loss (including but not
limited to loss of profit arising out of or in connection with arrest,
detention of or delay to any Vessel) arising from the Management Services
unless and to the extent that such Loss resulted from:


 


(a) the
fraud, gross negligence, recklessness or willful misconduct of the Manager or
any of its Affiliates (other than the Company Group) or any of their respective
employees, agents or subcontractors (“Manager
Misconduct”); or


 


(b) any
breach of this Agreement by the Manager of any of its Affiliates (other than
the Company Group).


 


Notwithstanding
anything that may appear to the contrary in this Agreement, the Manager shall
not be responsible for any of the actions of the crew of any Vessel even if
such actions are negligent, grossly negligent or willful.


 


9.2 Extraordinary Costs and Capital Expenditures.  Notwithstanding
anything to the contrary in this Agreement, the Manager shall not be
responsible for paying any costs, liabilities and expenses in respect of a
Vessel to the extent that such costs, liabilities and expenses are
“extraordinary,” which consist of the following:


 


(a) repairs,
refurbishment or modifications resulting from maritime accidents, collisions,
other accidental damage or unforeseen events (except to the extent that such
accidents, collisions, damage or events are due to Manager’s Misconduct, unless
and to the extent otherwise covered by insurance);


 


21

















 


(b) drydocking
of a Vessel;


 


(c) any
improvement, upgrade or modification to, structural changes with respect to or
the installation of new equipment aboard any Vessel that results from a change
in, an introduction of new, or a change in the interpretation of, Applicable
Laws at the recommendation of the classification society for that Vessel or
otherwise;


 


(d) any
increase in Crew Employment and Support Expenses resulting from a change in, an
introduction of new, or a change in the interpretation of, Applicable Laws; or


 


(e) any
other similar types of costs, liabilities and expenses that were not reasonably
contemplated by the Company and the Manager as being a component of the
Approved Budget for the applicable Fiscal Year.


 


9.3 Manager Indemnification.  The
Company shall indemnify and save harmless the Manager and its directors,
officers, employees, subcontractors and Affiliates (the “Manager Indemnified Persons”) from and
against any and all Losses incurred or suffered by the Manager Indemnified
Persons by reason of or arising from or in connection with their performance of
this Agreement or any third-party Legal Action brought or threatened against
such Manager Indemnified Persons in connection with their performance of this
Agreement, other than for any Losses to the extent related to or that resulted
from:


 


(a) any
liabilities or obligations that the Manager has agreed to pay or for which the
Manager is otherwise expressly responsible under this Agreement;


 


(b) Manager
Misconduct; or


 


(c) any
breach of this Agreement by the Manager or any of its Affiliates (other than
the Company Group).


 


9.4 Company Indemnification.  The
Manager shall indemnify and save harmless each Company Group Member and such
Company Group Member’s directors, officers, employees, subcontractors and
Affiliates (the “Company Indemnified Persons”)
from and against any and all Losses incurred or suffered by the Company
Indemnified Persons, to the extent related to or that resulted from:


 


(a) any
liabilities or obligations that the Manager has agreed to pay or for which the
Manager is otherwise expressly responsible under this Agreement;


 


(b) Manager
Misconduct; or


 


(c) any
breach of this Agreement by the Manager or any of its Affiliates (other than
the Company Group).


 


9.5 Limitation Regarding Crew


 


Notwithstanding
anything to the contrary in this Agreement, the Manager shall not be liable for
any of the actions of the Crew, even if such actions are negligent, grossly
negligent or willful, except only to the extent that they are shown to have
resulted from a breach by the Manager of any of its obligations under Section 3.3,
in which case the Manager’s liability shall be determined in accordance with
the terms of this Section 9.


 


22

















 


10. TERM AND TERMINATION


 


10.1 Initial Term.  The initial term
of this Agreement shall commence on
                      ,
2010 and end on the Initial Expiration Date, unless terminated earlier pursuant
to this Agreement (the “Initial Term”).


 


10.2 Renewal Term.   This
Agreement will, without any further act or formality on the part of either
Party, on the expiration of the Initial Term or any Renewal Term, be
automatically renewed for a further term of five (5) years (each a “Renewal Term”) unless notice of termination
is given by the Company to the Manager in accordance with Section 10.3(f),
in the case of the Initial Term, or Section 10.3(g), in the case of any
Renewal Term.


 


10.3 Termination by the Company.  This
Agreement may be terminated by the Company:


 


(a) if,
at any time, the Manager materially breaches this Agreement and the matter is
unresolved after ninety (90) days pursuant to the dispute resolution
procedures set forth in Section 11 (“Manager
Breach”);


 


(b) if,
at any time,


 


(i) the
Manager has been convicted of, has entered a plea of guilty or nolo contendere with respect to, or has
entered into a plea bargain or settlement admitting guilt for, a crime, which
conviction, plea bargain or settlement is demonstrably and materially injurious
to the Company; and


 


(ii) the
holders of a majority of the outstanding Common Shares elect to terminate this
Agreement;


 


(c) if,
at any time, the Manager becomes insolvent, admits in writing its inability to
pay its debts as they become due, is adjudged bankrupt or declares bankruptcy
or makes an assignment for the benefit of creditors, a proposal or similar
action under the bankruptcy, insolvency or other similar laws of any applicable
jurisdiction, or commences or consents to proceedings relating to it under any
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction;


 


(d) if
any Person or group of Persons other than Peter C. Georgiopoulos acquires
Control or economic control of the Manager in contravention of Section 12.2;


 


(e) if, in the
Fiscal Quarter that is four Fiscal Quarters before the Fiscal Quarter that
contains the tenth anniversary of the Initiation Date, two-thirds of the Board
of Directors elect to terminate the Agreement, which termination shall be effective
on the last day of the Fiscal Quarter that contains the tenth anniversary of
the Initiation Date;


 


(f) if, in the
Fiscal Quarter  that is four Fiscal
Quarters before the Fiscal Quarter that contains the Initial Expiration Date,
the Company elects to terminate the Agreement by notice to the Manager, which
termination shall be effective on the Initial Expiration Date; or


 


(g) if, in the
fourth calendar quarter of any twelve-month period immediately preceding the
twelve month period that includes the end of any Renewal Term, the Company
elects to terminate the Agreement by notice to the Manager, which termination
shall be effective at the end of such Renewal Term.


 


10.4 Termination by the Manager.  This
Agreement may be terminated by the Manager:


 


(a) after
the fifth anniversary of the Public Offering, with twelve (12) months’
prior notice by the Manager to the Company;


 


(b) if,
at any time, the Company materially breaches the Agreement and the matter is
unresolved after ninety (90) days pursuant to the dispute resolution
procedures set forth in Section 11 (“Company
Breach”); or


 


23

















 


(c) at
any time upon the earlier of (i) the occurrence of a Change of Control of
the Company or (ii) the Manager’s receipt of written notice from the
Company that such a Change of Control will occur until sixty (60) days after
the later of (x) the occurrence of such a Change of Control or (y) the
Manager’s receipt of the written notice in the preceding clause (ii).   If the Company has knowledge that a Change
of Control of the Company will occur, the Company shall give prompt written
notice thereof to the Manager.  A “Change of Control” means the occurrence of
any of the following:


 


(A) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the Company’s assets, except such a disposition to a
member of the Existing Ownership Group;


 


(B) an
order made for, or the adoption by the Board of Directors of a plan of,
liquidation or dissolution of the Company;


 


(C) the
consummation of any transaction (including any merger or consolidation) the
result of which is that any “person” (as such term is used in Section 13(d)(3) of
the Exchange Act) becomes the beneficial owner, directly or indirectly, of a
majority of the Company’s Voting Securities (unless such “person” is a member
of the Existing Ownership Group), measured by voting power rather than number
of shares;


 


(D) if,
at any time, the Company becomes insolvent, admits in writing its inability to
pay its debts as they become due, is adjudged bankrupt or declares bankruptcy
or makes an assignment for the benefit of creditors, or makes a proposal or
similar action under the bankruptcy, insolvency or other similar laws of any
applicable jurisdiction or commences or consents to proceedings relating to it
under any reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction;


 


(E) the
consolidation of the Company with, or the merger of the Company with or into,
any “person” (other than a member of the Existing Ownership Group), or the
consolidation of any “person” (other than a member of the Existing Ownership
Group) with, or the merger of any “person” (other than a member of the Existing
Ownership Group) with or into, the Company, in any such event pursuant to a
transaction in which any of the Common Stock or Class B Stock outstanding
immediately prior to such transaction are converted into or exchanged for cash,
securities or other property or receive a payment of cash, securities or other
property, other than any such transaction where the Company’s Voting Securities
outstanding immediately prior to such transaction are converted into or
exchanged for Voting Securities of the surviving or transferee “person”
constituting a majority (measured by voting power rather than number of shares)
of the outstanding Voting Securities of such surviving or transferee “person”
immediately after giving effect to such issuance; or


 


(F) a
change in directors after which a majority of the members of the Board of
Directors are not Continuing Directors.


 


10.5 Effects of Termination or Expiry of this
Agreement.  (a) If the Manager terminates this
Agreement pursuant to Section 10.4(a), the Company shall have the option
to require the Manager to continue to provide Technical Services to the
Company, for the fee described in Section 8.1, for up to an additional
two-year period from the date of termination of this Agreement.


 


(b) If
the Company terminates this Agreement pursuant to any of Sections 10.3(e) through
10.3(g), or the Manager terminates this Agreement pursuant to Section 10.4(b) or
Section 10.4(c), the Company shall pay to the Manager the Termination
Payment in a lump sum amount, payable within 30 days following the date
this Agreement terminates.


 


24

















 


(d) Upon
termination of this Agreement for any reason or expiry of this Agreement or
upon the Manager otherwise ceasing to manage a Vessel under this Agreement,
with respect to the Stores and Equipment provided by the relevant Company Group
Member or the Manager, as applicable, the following shall occur:


 


(i) in
the case of any Vessel where the necessary Stores and Equipment were provided
by the Manager, at the time of delivery of such Vessel to the relevant Company
Group Member, the Company or such Company Group Member shall reimburse the
Manager for the fair market value (as of the time of such termination, expiry
or cessation) of the Stores and Equipment that had been placed on board the
Vessel by the Manager, taking into account reasonable wear and tear (such value
to be proposed by the Manager and subject to approval by the Company), except that
if such Vessel is to be scrapped immediately following such termination, expiry
or cessation, the Manager shall use commercially reasonable efforts to sell,
re-use or recycle the Stores and Equipment and any compensation received by the
Manager in doing so shall be deducted from the amounts to be reimbursed by the
Company or such Company Group Member to the Manager; and


 


(ii) in
the case of any Vessel where the necessary Stores and Equipment were provided
by the relevant Company Group Member, at the time of delivery of such Vessel to
such Company Group Member, the Manager shall either, at the Company’s option, (A) return
the Vessel with materially the same level and complement of Stores and
Equipment as required to continue operating the Vessel in accordance with
customary ship operation and practice that a prudent owner of a Vessel such as
the Vessel would deem reasonably necessary, taking into account reasonable wear
and tear, or (B) pay to the Company or such Company Group Member an amount
representing the amount of Stores and Equipment needed to be added to existing
levels to satisfy the levels described in subclause (A) above (such amount
to be proposed by the Manager and subject to approval by the Company); provided, however, that if such Vessel is
to be scrapped immediately following such termination, expiry or cessation, the
Manager shall be required to make the payment contemplated in subclause (B) above.


 


Until
any of the foregoing events arise, neither any Company Group Member nor the
Manager shall have any obligation to each other to account for any diminution
in value of the Stores and Equipment.


 


(e) Upon
termination or expiry of this Agreement, this Agreement will be void and there
shall be no liability on the part of any Party (or their respective officers,
directors, employees or Affiliates) except that the obligation of the Company
to pay to the Manager or its Affiliates the amounts accrued but outstanding
under Section 8 and the terms and conditions set forth in Sections 9, 10.6
and 12.4 shall survive such termination. After a written notice of termination
has been given under this Section 10 or upon expiry, the Company may
direct the Manager to, at the cost of the Company (subject to Section 10.5(d)),
undertake any actions reasonably necessary to transfer any aspect of the
ownership or control of the assets of the Company to the Company or to any
nominee of the Company and to do all other things reasonably necessary to bring
the appointment of the Manager to an end at the appropriate time, and the
Manager shall promptly comply with all such reasonable directions. Upon
termination or expiry of this Agreement, the Manager shall promptly deliver to
any new manager or the Company any Books and Records held by the Manager under
this Agreement and shall execute and deliver such instruments and do such
things as may reasonably be required to permit the new manager of the Company
to assume its responsibilities.


 


11. DISPUTE RESOLUTION


 


11.1 Notice of Dispute.  If (a) a
dispute or disagreement arises between the Parties with respect to any
provision of this Agreement (other than Section 8.3), including its
interpretation or the performance of a Party under this Agreement or (b) (i) the
Company in good faith believes that a Manager Breach has occurred or is
reasonably likely to occur or (ii) the Manager in good faith believes that
a Company Breach


 


25

















 


has
occurred or is reasonably likely to occur (each of the foregoing, as well as
any inability of the Parties to agree, pursuant to Section 8.1, upon the
adjusted Commercial Management Services Fee by the date sixty (60) days
prior to January 1 of the year in which such adjusted fee is scheduled to
take effect, being a “Dispute”),
either Party may, or the Party alleging such breach or potential breach shall,
deliver written notice to the other Party. Such notice shall contain in detail
the specific facts and circumstances relating to the Dispute. With respect to
any Dispute described in clause (a) or (b) above, each Party
shall designate an individual to negotiate and resolve the Dispute (each a “Designated Representative” and, together,
the “Designated Representatives”).
The Designated Representatives shall in good faith attempt to resolve the
matter within a thirty (30) day period from the date of delivery of the
notice referred to above. If either Designated Representative intends to be
accompanied by counsel at any meeting, such Designated Representative shall
give the other Designated Representative at least three (3) Business Days’
notice. All discussions and negotiations pursuant to this Section 11 shall
be confidential and without prejudice to settlement negotiations.


 


11.2 Mediation.  If a Dispute
described in clause (a) or (b) of Section 11.1 is not
resolved by the Designated Representatives during after the thirty
(30) days provided in Section 11.1, either of the Parties may refer
the matter to mediation. Any Dispute relating to the determination of an
adjusted Commercial Management Services Fee (a “Commercial Management Services Fee Dispute”) shall be referred
to mediation. With respect to the mediation of any Dispute, the mediator shall
be mutually agreed upon by the Parties, and such mediator will be instructed
to:


 


(a) review
the terms of the Dispute and the position of the Parties;


 


(b) consider
the terms of and context of this Agreement; and


 


(c) render
a non-binding report within sixty (60) days (20 days in the case of a
Commercial Management Services Fee Dispute) of the appointment of the mediator
(the “Mediator’s Report”) or such
later date as to which the Parties may agree.


 


The
Parties shall consider the Mediator’s Report and may mutually decide to make it
a binding report. If the mediator is not able to facilitate a binding agreement
between the Parties, the Dispute is not resolved to the satisfaction of the
Parties as a result of the Mediator’s Report or a mediator cannot be chosen
mutually by the Parties, the Dispute shall be submitted to binding arbitration
pursuant to Section 11.3.


 


11.3 Arbitration.  Any Dispute not
resolved by the Parties pursuant to Section 11.1 or 11.2 shall be fully
and finally resolved by binding arbitration pursuant to this Section 11.3.
Either Party may refer the Dispute to arbitration, which shall take place in
New York, New York in accordance with the Commercial Arbitration Rules of
the American Arbitration Association before a single arbitrator. The prevailing
Party in any such arbitration shall be entitled to costs, expenses and
reasonable attorneys’ fees, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.


 


12. GENERAL


 


12.1 Assignment; Binding Effect.  The
Parties may not assign any of their respective rights under this Agreement in
whole or in part without the prior written consent of the other Party, which
consent may be withheld in the sole discretion of such other Party. This
Agreement is binding upon and inures to the benefit of the Parties and their
successors and permitted assigns.


 


12.2 Change of Control of the Manager.  If
any Person or group of Persons acting in concert (other than Affiliates of
Genco) proposes to acquire Control of the Manager, directly or indirectly, the
Manager shall provide at least thirty (30) days’ written notice of the
change of Control to the Company, which


 


26

















 


notice
shall identify the Person that will acquire, directly or indirectly, Control of
the Manager. A change of Control of the Manager may occur only with the consent
of the Company, which consent shall not be unreasonably withheld or delayed.


 


12.3 Force Majeure.  Neither of the
Parties shall be under any liability for any failure to perform any of their
obligations hereunder if any of the following occurs (each a “Force Majeure Event”):


 


(a) any
event, cause or condition which is beyond the reasonable control of either or
both of the Parties and which prevents either or both of the Parties from
performing any of their respective obligations under this Agreement;


 


(b) acts
of God, including fire, explosions, unusually or unforeseeably bad weather
conditions, epidemic, lightening, earthquake or tsunami;


 


(c) acts
of public enemies, including war or civil disturbance, vandalism, sabotage,
terrorism, blockade or insurrection;


 


(d) acts
of a Governmental Authority, including injunction or restraining orders issued
by any judicial, administrative or regulatory authority, expropriation or
requisition;


 


(e) government
rule, regulation or legislation, embargo or national defense requirement; or


 


(f) labor
troubles or disputes, strikes or lockouts, including any failure to settle or
prevent such event which is in the control of any Party.


 


A
Party shall give written notice to the other Party promptly upon the occurrence
of a Force Majeure Event.


 


12.4 Confidentiality.  (a)  Each Receiving Party agrees:


 


(i)            to use any Confidential Information
solely to carry out its obligations or exercise its rights under this
Agreement  (the “Purpose”)
and for no other purpose;


 


(ii)           to copy and make other works based on
Confidential Information only as strictly necessary for the Purpose;


 


(iii)          to maintain the confidentiality of the
Confidential Information using at least the same degree of care that the
Receiving Party uses for its own confidential or proprietary information of a
similar nature, but no less than reasonable care;


 


(iv)          to reveal any Confidential Information
to any third party without the prior written consent of the Disclosing Party,
except that if the Receiving Party is required by law, court or administrative
order or regulation to reveal any Confidential Information, the Receiving Party
is permitted to do so provided that
the Receiving Party gives the Disclosing Party reasonable prior written notice
(if permitted) of the required disclosure and cooperate with the Disclosing
Party at its expense in seeking a protective order or other relief;


 


(v)           to limit disclosure of the
Confidential Information to such of your officers and employees as is necessary
for the Purpose;


 


(vi)          to inform each officer and employee
who receives any Confidential Information of the restrictions as to use and
disclosure of Confidential Information contained herein and to be responsible
for any breach of such restrictions by any such persons;


 


27

















 


(vii)         Forthwith upon the Disclosing Party’s
request, to procure the return of all Confidential Information together with
any copies, abstracts, or other works which contain or are based on any of the
Confidential Information; provided that, notwithstanding the foregoing, the
Receiving Party shall be permitted to retain Confidential Information to the
extent it is required to retain such Confidential Information pursuant to law,
court or administrative order or regulation;


 


(b) Each
Receiving Party further acknowledges that any breach of the provisions of this
Agreement would result in serious damage being sustained by the Disclosing
Party, and as a result hereby unconditionally agrees:


 


(i)            To be responsible for losses, damages
or expenses (including without limitation attorneys’ fees and expenses) that
have been determined to have been caused by any such breach; and


 


(ii)           That the Disclosing Party shall be
entitled to equitable relief (including without limitation injunctive relief)
in relation to any threatened or actual breach of the provisions of this
Agreement without any requirement of posting a bond and without limiting any
other remedy that may be available to the Disclosing Party.


 


12.5 Notices.  Each notice,
consent or request required to be given to a Party pursuant to this Agreement
must be given in writing. A notice may be given by delivery to an individual or
by fax, and shall be validly given if delivered on a Business Day to an
individual at the following address, or, if transmitted on a Business Day, by
fax or email addressed to the following Party:


 


	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
  if
  to the Company:

  	
  (b)

  	
  if
  to the Manager:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:   299 Park Avenue, 20th Floor

  	
   

  	
  Address:  299 Park Avenue, 20th Floor

  
	
   

  	
     New York, NY 10171

  	
   

  	
    New York, NY 10171

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
  Attention:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Fax
  No.:

  	
   

  	
  Fax
  No.:

  



 


or
to any other address or fax number that the Party so designates by notice given
in accordance with this Section. Any notice


 


(a) if
validly delivered on a Business Day, shall be deemed to have been given when
delivered; and


 


(b) if
validly transmitted by fax on a Business Day, shall be deemed to have been
given on that Business Day.


 


12.6 Third Party Rights.  The
provisions of this Agreement are enforceable solely by the Parties to this
Agreement, and no shareholder, employee, agent of any Party or any other Person
shall have the right to enforce any provision of this Agreement or to compel
any Party to this Agreement to comply with the terms of this Agreement.


 


12.7 No Partnership.  Nothing in this
Agreement is intended to create or shall be construed as creating a partnership
or joint venture between the Parties, and this Agreement shall not be deemed
for any purpose to constitute any Party a partner of any other Party to this Agreement
in the conduct of any business or otherwise or as a member of a joint venture
or joint enterprise with any other Party to this Agreement.


 


28

















 


12.8 Severability.  Each provision
of this Agreement is several. If any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any jurisdiction, the illegality,
invalidity or unenforceability of that provision will not affect:


 


(a) the
legality, validity or enforceability of the remaining provisions of this
Agreement; or


 


(b) the
legality, validity or enforceability of that provision in any other
jurisdiction;


 


except
that if:


 


(x) on
the reasonable construction of this Agreement as a whole, the applicability of
the other provision presumes the validity and enforceability of the particular
provision, the other provision will be deemed also to be invalid or
unenforceable; and


 


(y) as
a result of the determination by a court of competent jurisdiction that any
part of this Agreement is unenforceable or invalid and, as a result of this Section 12.8,
the basic intentions of the Parties in this Agreement are entirely frustrated,
the Parties shall use commercially reasonable efforts to amend, supplement or
otherwise vary this Agreement to confirm their mutual intention in entering
into this Agreement.


 


12.9 Governing Law; Jurisdiction; Venue.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts executed in and to be performed in that state, and each
party hereto agrees to submit to the non-exclusive jurisdiction of the federal
or state courts located in the City, County and State of New York as regards
any claim or matter arising under or in connection with this Agreement.  Each of the Parties hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this agreement or the transactions contemplated
hereby, in the federal or state courts located in the City, County and State of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum
or seek to change the venue from any such court.


 


12.10 Amendments.   No
amendment, supplement, modification or restatement of any provision of this
Agreement shall be binding unless it is in writing and signed by each Person
that is a Party to this Agreement at the time of the amendment, supplement,
modification or restatement.


 


12.11 Entire Agreement.  This Agreement
constitutes the entire agreement among the Parties pertaining to the subject
matter hereof and supersedes all prior agreements and understandings pertaining
thereto.


 


12.12 Waiver.  No failure by
any Party to insist upon the strict performance of any covenant, duty,
agreement or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute a waiver of any such breach
or of any other covenant, duty, agreement or condition. Any waiver must be
specifically stated as such in writing.


 


12.13 Counterparts.  This Agreement
may be executed in any number of counterparts, all of which together shall
constitute one agreement binding on the Parties.


 


[Remainder of This Page Intentionally Left
Blank]


 


29

















 


IN
WITNESS WHEREOF, this Management Agreement has been duly executed by the
Parties as of the date first written above.


 


	
  BALTIC TRADING LIMITED

  	
   

  	
  GENCO
  SHIPPING & TRADING LIMITED

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


30