Exhibit 10.2


 


FORM OF
OMNIBUS AGREEMENT


 


This OMNIBUS AGREEMENT (this “Agreement”), is entered into as of
                    
      , 2009, by and between Genco Shipping &
Trading Limited, a Marshall Islands corporation (“Genco”) and Baltic
Trading Limited, a Marshall Islands corporation (“Baltic”).  The foregoing shall be referred to
individually as a “Party” and collectively as the “Parties.”  Certain capitalized terms have the meanings
assigned to them in Article I hereof.


 


RECITALS


 


A.  Genco has formed Baltic for
the purpose of, among other things, acquiring, owning and operating certain drybulk
vessels that trade in the spot market or on spot market-related time charters.


 


B.  The respective Boards of
Directors of Genco and Baltic have authorized the Parties to enter into this
Agreement
and effect the actions set forth below.


 


C.  The Parties desire, in
connection with the proposed initial public offering (the “Offering”) of
Baltic, to undertake the transactions contemplated by this Agreement, including, without
limitation, the allocation of certain business opportunities between (i) Genco
and its affiliates other than the Baltic Group members and (ii) the Baltic
Group members.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the Parties undertake and agree as follows:


 


ARTICLE
I

DEFINITIONS; RECORDATION


 


1.01         Definitions.  In addition to terms defined above or
elsewhere in this Agreement, the following capitalized terms have the meanings
given below.


 


An “affiliate” of any Person
means any other Person which directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with,
such Person.  The term “control”
(including the terms “controlling,” “controlled by” and “under common control
with”) as used with respect to any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.  A person who is
the owner of 20% or more of the outstanding voting shares of any corporation,
partnership, unincorporated association or other entity shall be presumed to
have control of such entity, in the absence of proof by a preponderance of the
evidence to the contrary. Notwithstanding the foregoing, a presumption of
control shall not apply where such person holds voting shares, in good faith
and not for the purpose of circumventing this provision, as an agent, bank,
broker, nominee, custodian or trustee for one or more owners who do not
individually or as a group have control of such entity.


 


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“Articles of Incorporation” means the
Amended and Restated Articles of Incorporation of Baltic, as they may be
further amended from time to time.


 


“Baltic Group” means, collectively,
Baltic and its subsidiaries.


 


“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.


 


“Common Stock” means the Common
Stock, par value $0.01 per share, of Baltic.


 


“Class B Stock” means the Class B
Stock, par value $0.01 per share, of Baltic, which entitles the holder thereto
to the voting and other rights as set forth in the Articles of Incorporation.


 


“Person”
means any individual, sole proprietorship, partnership, limited liability
company, joint venture, trust, incorporated organization, association,
corporation, institution, public benefit corporation or any other entity.


 


“Registration Rights Agreement” means
the Registration Rights Agreement, to be entered into between Genco and Baltic,
in substantially the form of Exhibit A attached hereto.


 


“Trip Charter”
means a time charter for a trip to carry a specific cargo from a load port to a
discharge port at a set daily rate.


 


“Voyage
Charter” means a charter for the carriage of a specific cargo
from a load port to a discharge port at an agreed upon freight rate expressed
on a U.S. dollar-per-ton basis.


 


ARTICLE
II

ALLOCATION OF BUSINESS OPPORTUNITIES AND RIGHTS OF FIRST REFUSAL


 


2.01         Allocation of Business
Opportunities.  Baltic and
Genco hereby agree that Genco may engage (and shall have no duty to refrain
from engaging) in the same or similar activities or lines of business as the Baltic
Group members, including conducting business in the drybulk spot market, and
none of the Baltic Group members shall be deemed to have an interest or
expectancy in any business opportunity, transaction or other matter (including,
without limitation, any opportunity to acquire a drybulk vessel) (each such
opportunity, transaction or other matter being a “Business Opportunity”)
in which Genco engages or seeks to engage merely because any Baltic Group
member engages in the same or similar activities or lines of business as that
involved in or implicated by such Business Opportunity.


 


2.02         Right of First Refusal.  Subject to the terms and conditions specified
in this Article II:


 


(a)                                  if Genco, its affiliates, any Baltic
Group member, or any director or officer of the foregoing acquires knowledge of
a potential Business Opportunity that may be deemed to constitute a corporate
opportunity of both Genco and a Baltic Group 


 


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member, Genco shall have
a right of first refusal to pursue or acquire such Business Opportunity for
itself unless such Business Opportunity is a Spot Charter Opportunity (defined
below); and


 


(b)                                 if Genco, its affiliates, any Baltic
Group member, or any director or officer of the foregoing acquires knowledge of
a potential opportunity to enter into a Voyage Charter or a Trip Charter for a
particular drybulk vessel (a “Spot Charter Opportunity”) that may be
deemed to constitute a corporate opportunity of both Genco and a Baltic Group
member, Baltic shall have a right of first refusal to elect to pursue or
acquire such Spot Charter Opportunity for itself.


 


Each time Genco or a Baltic Group member, as
applicable (the “Offering Party”) acquires knowledge of a Business
Opportunity for which the other Party (the “ROFR Party”) has a right of
first refusal, the Offering Party must first make an offering of the Business Opportunity
to the ROFR Party in accordance with the following provisions of this Article II
prior to pursuing such Business Opportunity.


 


2.03         Offer Notice.  The Offering Party shall give written notice
(the “Offering Notice”) to the ROFR Party stating that it has identified
a corporate opportunity and providing a description of the opportunity,
including all material terms and conditions of which the Offering Party has
knowledge.


 


2.04         Exercise of Right of First
Refusal.


 


(a)                                  Upon receipt of the Offering Notice, the
ROFR Party shall have twenty-four (24) hours if the Business Opportunity is a
Spot Charter Opportunity or fourteen (14) calendar days if the Business
Opportunity is not a Spot Charter Opportunity (the “ROFR Notice Period”)
to elect to pursue the Business Opportunity by delivering a written notice to
the Offering Party stating that the ROFR Party will pursue the Opportunity (a “ROFR
Notice”).


 


(b)                                 If the ROFR Party does not deliver a ROFR
Offer Notice during the ROFR Notice Period, it shall be deemed to have waived
all of its rights to pursue the Business Opportunity under this Article II,
and the Offering Party shall thereafter be free to pursue the Business
Opportunity specified in the Offer Notice without any further obligation to
such Party pursuant to this Article II.


 


2.05         Limitation on Duty to
Notify.  If the ROFR Party
is the first to learn of a Business Opportunity, then neither the ROFR Party nor
its directors or officers shall have any duty to communicate or offer such Business
Opportunity to the Offering Party.


 


2.06         Vessel Pools.
 As the entry of a drybulk vessel by one
Party into a vessel pool would not prevent the other Party from taking the same
action, neither Party shall have any obligation under Sections 2.02 through
2.04 hereunder with respect to the entry of any drybulk vessel into a vessel
pool.


 


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2.07         Definitions.  For purposes of this Article II
only (a) the term “Baltic Group” shall mean Baltic and all persons
or entities in which Baltic beneficially owns, directly or indirectly, 50% or
more of the outstanding voting stock, voting power, partnership interests or
similar voting interests, and (b) the term “Genco” shall mean Genco
and all persons or entities (other than the Baltic Group, as defined in
accordance with clause (a) of this Section 2.07) (i) in
which Genco beneficially owns, directly or indirectly, 50% or more of the
outstanding voting stock, voting power, partnership interests or similar voting
interests or (ii) which otherwise are affiliates of Genco.


 


ARTICLE
III

CREDIT FACILITIES


 


In order to comply
with the provisions of Genco’s existing credit facility on the date hereof and
any future credit facility of Genco, Baltic shall:


 


(a)                                  not issue any shares of preferred stock
without the prior written consent of Genco; and


 


(b)                                 use commercially reasonable efforts not
to take any action that would result in an event of default under Genco’s
existing credit facility as of the date hereof or the terms of any future
credit facility Genco may enter into to the extent such terms impose no greater
restrictions on Genco’s affiliates than such existing credit facility.


 


ARTICLE
IV

MISCELLANEOUS


 


4.01         Term; Termination.  This agreement shall continue in full force
and effect until the date that (a) Genco ceases to beneficially own shares
of Common Stock and Class B Stock representing at least 10% of the
aggregate number of outstanding shares of Common Stock and Class B Stock
of Baltic and (b) no person who is a director or officer of any Baltic
Group member is also a director or officer of Genco or any of its affiliates
other than the Baltic Group members. 
Notwithstanding the foregoing, no addition to, alteration of or
termination of Article II shall eliminate or impair the effect of Article II
on any act, omission, right or liability that occurred prior thereto.


 


4.02         Enforcement.  Each Party agrees and acknowledges that the
other Parties do not have an adequate remedy at law for the breach by any such
Party of its covenants and agreements set forth in Article II, and
that any breach by any such Party of its covenants and agreements set forth in Article II
would result in irreparable injury to such other Parties.  Each Party further agrees and acknowledges
that any other Party may, in addition to the other remedies which may be
available to such other Party, file a suit in equity to enjoin such Party from
such breach, and consent to the issuance of injunctive relief to enforce the
provisions of Article II of this Agreement.


 


4.03         Integration.  This Agreement and the instruments referenced
herein supersede all previous understandings or agreements among the Parties,
whether oral or written, with respect to the subject matter hereof.  This Agreement and such instruments contain
the entire understanding of the Parties with respect to the subject matter
hereof and thereof.  No 


 


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understanding,
representation, promise or agreement, whether oral or written, is intended to
be or shall be included in or form part of this Agreement unless it is
contained in a written amendment hereto executed by the Parties hereto after
the date of this Agreement.


 


4.04         Headings; References;
Interpretation.  All Article and
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.  The words “hereof,” “herein”
and “hereunder” and words of similar import, when used in this Agreement, shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement.  All references herein to
Articles and Sections shall, unless the context requires a different
construction, be deemed to be references to the Articles and Sections of this
Agreement, respectively.  All personal
pronouns used in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders, and the singular shall include
the plural and vice versa.  The use
herein of the word “including” following any general statement, term or matter
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not non-limiting language (such as “without limitation,”
“but not limited to,” or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that
could reasonably fall within the broadest possible scope of such general
statement, term or matter.


 


4.05         Successors and Assigns.  The Agreement shall be binding upon and inure
to the benefit of the Parties and their respective successors and assigns.


 


4.06         No Third Party Rights.  The provisions of this Agreement are intended
to bind the Parties as to each other and are not intended to and do not create
rights in any other person or confer upon any other person any benefits, rights
or remedies and no person is or is intended to be a third party beneficiary of
any of the provisions of this Agreement.


 


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


 


4.08         Governing Law.  This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable to
contracts made and to be performed wholly within such jurisdiction without
giving effect to conflict of law principles thereof other than Section 5-1401
of the New York General Obligations Law.


 


4.09         Severability.  If any of the provisions of this Agreement is
held by any court of competent jurisdiction to contravene, or to be invalid
under, the laws of any governmental body having jurisdiction over the subject
matter hereof, such contravention or invalidity shall not invalidate the entire
Agreement.  Instead, this Agreement shall
be construed as if it did not contain the particular provision or provisions
held to be invalid, and an equitable adjustment shall be made and necessary
provision added so as to give effect, as nearly as possible, to the intention
of the Parties as expressed in this Agreement at the time of execution of this
Agreement.


 


4.10         Deed; Bill of Sale;
Assignment.  To the extent
required and permitted by applicable Law, this Agreement shall also constitute
a “deed,” “bill of sale” or “assignment” of the Assets.


 


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4.11         Amendment or Modification.  This Agreement may be amended or modified
from time to time only by the written agreement of all the Parties hereto; provided,
however, that the prior approval of the Conflicts Committee of the Board
of Directors of Baltic shall be required for any proposed amendment that would,
in the reasonable determination of Baltic’s Board of Directors, adversely
affect the holders of Common Stock (other than Genco).


 


4.12         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 Baltic:

  	
  (b)

  	
  if
  to Genco:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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.


 


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Left Blank]


 


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IN WITNESS WHEREOF, this Omnibus
Agreement has been duly executed by the parties set forth below.


 


 


	
   

  	
  GENCO
  SHIPPING & TRADING LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BALTIC TRADING LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: