Exhibit 10.2


 


EXECUTION COPY


 




 


AMENDED
AND RESTATED CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT


 


AMONG


 


OSG
BULK SHIPS, INC.,


 


OSG
SHIP MANAGEMENT, INC.,


 


OSGAMLP
ONE PERCENT INTEREST CORPORATION,


 


OSG
AMERICA LLC,


 


OSG
AMERICA L.P.


 


AND


 


OSG
AMERICA OPERATING COMPANY LLC


 





 

















 


Table of Contents


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE I

  
	
   

  
	
  Definitions

  
	
   

  
	
  SECTION 1.01.

  	
   

  	
  Definitions

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  Contribution and Conveyance

  
	
   

  
	
  SECTION 2.01.

  	
   

  	
  Acknowledgement of Transfer by Bulk Ships of Luxmar
  and Maremar Interests

  	
   

  	
  5

  
	
  SECTION 2.02.

  	
   

  	
  Transfer by Bulk Ships of OSG MLP Operating Company
  Interests

  	
   

  	
  5

  
	
  SECTION 2.03.

  	
   

  	
  Transfer by OSGM of ATC Interest

  	
   

  	
  5

  
	
  SECTION 2.04.

  	
   

  	
  Issuance of Units and Payment of Reimbursement
  Payment for Luxmar and Maremar Interests and the OSG MLP Operating Company
  Interest

  	
   

  	
  5

  
	
  SECTION 2.05.

  	
   

  	
  Issuance of Units to OSGM for ATC Interest

  	
   

  	
  6

  
	
  SECTION 2.06.

  	
   

  	
  Conversion of Bulk Ships’ Limited Partner Interest

  	
   

  	
  6

  
	
  SECTION 2.07.

  	
   

  	
  Conversion of One Percent’s Limited Partner Interest

  	
   

  	
  6

  
	
  SECTION 2.08.

  	
   

  	
  Conversion of OSG MLP General Partner’s General
  Partner Interest

  	
   

  	
  6

  
	
  SECTION 2.09.

  	
   

  	
  OSG MLP’s Receipt of the OSG MLP Operating Company
  Interest and Luxmar and Maremar Interests

  	
   

  	
  6

  
	
  SECTION 2.10.

  	
   

  	
  OSG MLP’s Receipt of ATC Interest

  	
   

  	
  6

  
	
  SECTION 2.11.

  	
   

  	
  Bulk Ships’, One Percent’s and OSG MLP General
  Partner’s Receipt of Units and Reimbursement Payment

  	
   

  	
  6

  
	
  SECTION 2.12.

  	
   

  	
  OSGM Receipt’s of Units

  	
   

  	
  6

  
	
  SECTION 2.13.

  	
   

  	
  Transfer of Luxmar and Maremar Interest and ATC
  Interest

  	
   

  	
  7

  
	
  SECTION 2.14.

  	
   

  	
  OSG MLP Operating Company’s Receipt of Luxmar and
  Maremar Interests and ATC Interests

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  Assumption of Certain Liabilities and Adoption of Certain
  Limited Liability Company Agreements

  
	
   

  
	
  SECTION 3.01.

  	
   

  	
  Assumption of Liabilities

  	
   

  	
  7

  
	
  SECTION 3.02.

  	
   

  	
  Adoption of Limited Liability Company Agreement of
  OSG MLP Operating Company

  	
   

  	
  7

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.03.

  	
   

  	
  Adoption of Limited Liability Company Agreements of Luxmar Tanker LLC

  	
   

  	
  7

  
	
  SECTION 3.04.

  	
   

  	
  Adoption of Limited Liability Company Agreements of Maremar Tanker
  LLC

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  Additional Transaction

  
	
   

  
	
  SECTION 4.01.

  	
   

  	
  Exercise of the Over-Allotment Option

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  Representations and Warranties

  
	
   

  
	
  SECTION 5.01.

  	
   

  	
  Representations and Warranties of Bulk Ships and One Percent

  	
   

  	
  8

  
	
  SECTION 5.02.

  	
   

  	
  Representations and Warranties of OSGM

  	
   

  	
  9

  
	
  SECTION 5.03.

  	
   

  	
  DISCLAIMER OF WARRANTIES

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  Further Assurances

  
	
   

  
	
  SECTION 6.01.

  	
   

  	
  Further Assurances

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  
	
  Miscellaneous

  
	
   

  
	
  SECTION 7.01.

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
  12

  
	
  SECTION 7.02.

  	
   

  	
  Costs

  	
   

  	
  12

  
	
  SECTION 7.03.

  	
   

  	
  Headings; References; Interpretation

  	
   

  	
  12

  
	
  SECTION 7.04.

  	
   

  	
  Successors and Assigns

  	
   

  	
  12

  
	
  SECTION 7.05.

  	
   

  	
  No Third Party Rights

  	
   

  	
  12

  
	
  SECTION 7.06.

  	
   

  	
  Counterparts

  	
   

  	
  13

  
	
  SECTION 7.07.

  	
   

  	
  Governing Law

  	
   

  	
  13

  
	
  SECTION 7.08.

  	
   

  	
  Severability

  	
   

  	
  13

  
	
  SECTION 7.09.

  	
   

  	
  Deed; Bill of Sale; Assignment

  	
   

  	
  13

  
	
  SECTION 7.10.

  	
   

  	
  Amendment or Modification

  	
   

  	
  13

  
	
  SECTION 7.11.

  	
   

  	
  Entire Agreement

  	
   

  	
  13

  



 


ii

















 


AMENDED AND RESTATED CONTRIBUTION, CONVEYANCE
AND ASSUMPTION AGREEMENT (this “Agreement”) dated as of November 15,
2007, between OSG BULK SHIPS, INC., a New York corporation (“Bulk Ships”),
OSG SHIP MANAGEMENT, INC., a Delaware corporation (“OSGM”), OSGAMLP ONE
PERCENT INTEREST CORPORATION, a Delaware corporation (“One Percent”),
OSG AMERICA LLC, a Delaware limited liability company (“OSG MLP General
Partner”), OSG AMERICA L.P., a Delaware limited partnership (“OSG MLP”)
and OSG AMERICA OPERATING COMPANY LLC, a Delaware limited liability company (“OSG
MLP Operating Company”).


 


RECITALS


 


WHEREAS Bulk
Ships and OSG MLP General Partner have formed OSG MLP pursuant to the Delaware
Revised Uniform Limited Partnership Act (the “DRULPA”) for the purpose
of, among other things: (a) acquiring and owning all of the outstanding
limited liability company interests of certain subsidiaries of Bulk Ships that
own or operate certain U.S. flag product carriers and barges used to provide
marine transportation, distribution and logistics services for the
transportation of crude oil and refined petroleum products and (b) to
acquire from OSGM 37.5% of the outstanding limited liability company interests
of Alaska Tanker Company, LLC (the “ATC Interest”), a joint venture that
operates tankers used to transport crude-oil from Alaska to the continental
United States.


 


WHEREAS in
order to accomplish the objectives and purposes in the preceding recital:


 


1.     Bulk
Ships formed OSG MLP General Partner on May 14, 2007, pursuant to the
Delaware Limited Liability Company Act (the “Delaware LLC Act”), and
contributed $100 in exchange for all of the limited liability company interests
in OSG MLP General Partner.


 


2.     Bulk
Ships and OSG MLP General Partner formed OSG MLP on May 14, 2007, pursuant
to the DRULPA, and Bulk Ships contributed $980 in exchange for a limited
partner interest representing a 98% interest in OSG MLP and OSG MLP General
Partner contributed $20 in exchange for a general partner interest representing
a 2% interest in OSG MLP.


 


3.     On
August 30, 2007, Bulk Ships transferred a limited partner interest
representing a 1% interest in OSG MLP to One Percent such that, after such
transfer to One Percent, Bulk Ships held a limited partner interest
representing a 97% interest in OSG MLP, One Percent held a limited partner
interest representing a 1% interest in OSG MLP and OSG MLP General Partner held
a general partner interest representing a 2% interest in OSG MLP.


 

















 


4.     On
August 30, 2007, pursuant to that certain Conveyance and Assumption
Agreement dated August 30, 2007, between Bulk Ships and OSG MLP (the “Original
Contribution Agreement”), Bulk Ships conveyed to OSG MLP all of its right
title and interest in and to all of the limited liability company interests in
each of Luxmar Tanker LLC and Maremar Tanker LLC, each a Delaware limited
liability company (the “Luxmar and Maremar Interests”), in consideration
for the agreement by OSG MLP when and if the Registration Statement (as defined
below) becomes effective and the Offering (as defined below) is consummated, to
make a cash distribution, in an aggregate amount not to exceed $150,000,000, to
reimburse Bulk Ships for certain preformation capital expenditures for the
vessel Overseas Luxmar owned by Luxmar Tanker LLC, the vessel Overseas Maremar
owned by Maremar Tanker LLC and certain other vessels expected to be
transferred to OSG MLP.


 


5.     On
October 2, 2007, Bulk Ships formed OSG MLP Operating Company pursuant to
the Delaware LLC Act and contributed $1,000 in exchange for all of the limited
liability company interests in OSG MLP Operating Company.


 


6.     On November 5, 2007, Bulk Ships contributed
to OSG MLP Operating Company, of which Bulk Ships is the sole member, all of
the limited liability company interests in the Bulk Ships Subsidiaries (as defined
below) as an additional capital contribution.


 


WHEREAS in connection with the closing of the Offering (as defined
below) and concurrently with the consummation of the transactions contemplated
hereby, each of the following shall occur:


 


1.     It
is acknowledged that Bulk Ships, on behalf of itself, One Percent and OSG MLP
General Partner, conveyed to OSG MLP the Luxmar and Maremar Interests on August 30,
2007 and Bulk Ships, on behalf of itself, One Percent and OSG MLP General
Partner, will transfer to OSG MLP, subsequent to the execution of the
Underwriting Agreement (as defined below), the OSG MLP Operating Company
Interest (as defined below).  As
consideration therefor, OSG MLP will (a)(i) issue to Bulk Ships 6,496,827 Common
Units (as defined below), (ii) issue to Bulk Ships 14,999,999 Subordinated
Units (as defined below) and (iii) pay to Bulk Ships the Reimbursement
Payment (as defined below), (b) issue to One Percent 277,413 Common Units and
(c)(i) issue to OSG MLP General Partner the Incentive Distribution Rights
and (ii) issue to OSG MLP General Partner 612,244 General Partner Units.


 


2.     OSGM
will convey to OSG MLP, subsequent to the execution of the Underwriting
Agreement, the ATC Interest.  As
consideration therefor, OSG MLP will issue to OSGM, and OSGM will receive 725,759
Common Units.


 


2

















 


3.     Bulk
Ships’ limited partner interest representing a 97% interest in OSG MLP, prior
to the execution of the Underwriting Agreement, will be converted into one
Subordinated Unit.


 


4.     One
Percent’s limited partner interest representing a 1% interest in OSG MLP, prior
to the execution of the Underwriting Agreement, will be converted into one
Common Unit.


 


5.     OSG
MLP General Partner’s general partner interest representing a 2% interest in OSG
MLP, prior to the execution of the Underwriting Agreement, will be converted
into one General Partner Unit.


 


6.     OSG
MLP will transfer the Luxmar and Maremar Interests and the ATC Interest to OSG
MLP Operating Company.


 


7.     OSG
MLP, through the underwriters of the Offering (the “Underwriters”) and
pursuant to the Underwriting Agreement, will sell 7,500,000 Common Units to the
public in exchange for $142,500,000 (the “Offering Proceeds”).


 


8.     OSG
MLP will use the Offering Proceeds to (a) pay the underwriting discounts
and commissions and expenses incurred by OSG MLP in connection with the
Offering and (b) make the Reimbursement Payment.


 


WHEREAS the
parties hereto wish to amend and restate the Original Contribution Agreement in
its entirety as set forth herein.


 


NOW, THEREFORE, in
consideration of the foregoing and the respective covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto hereby amend
and restate the Original Contribution Agreement in its entirety as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.  Definitions.  For the purposes of this Agreement:


 


“ATC Interest” has the
meaning given to such terms in the recitals to this Agreement.


 


“Bulk Ships Subsidiaries”
means the Delaware limited liability companies set forth on Exhibit A
hereto and, as applicable, that own or operate the vessel set forth opposite
their name.


 


3

















 


“Common Units” has the
meaning assigned to such term in the Partnership Agreement (as defined below).


 


“Delaware LLC Act” has
the meaning given to such term in the recitals to this Agreement.


 


“DRULPA” has the meaning
given to such term in the recitals to this Agreement.


 


“Incentive Distribution
Rights” has the meaning assigned to such term in the Partnership Agreement.


 


“Interests” means the
Luxmar and Maremar Interests, the OSG MLP Operating Company Interest and the
ATC Interest.


 


“Laws” or “Law”
means any and all laws, statutes, ordinances, rules or regulations
promulgated by a governmental authority, orders of a governmental authority,
judicial decisions, decisions of arbitrators or determinations of any
governmental authority or court.


 


“Luxmar and Maremar Interests”
has the meaning given to such term in the recitals to this Agreement.


 


“Offering” means the
initial public offering of approximately 7,500,000 Common Units by OSG MLP to
the public.


 


“Offering Proceeds” has
the meaning given to such term in the recitals to this Agreement.


 


“Omnibus Agreement”
means the Omnibus Agreement to be entered into among Overseas Shipholding Group, Inc.,
OSG MLP General Partner and OSG MLP.


 


“Operating Subsidiaries”
means collectively Luxmar Tanker LLC, Maremar Tanker LLC and the Bulk Ships
Subsidiaries.


 


“Original Contribution
Agreement” has the meaning given to such term in the recitals to this
Agreement.


 


“OSG MLP Operating Company
Interest” means all of the limited liability company interests of OSG MLP
Operating Company.


 


“Parties” means the
parties to this Agreement and their successors and permitted assigns.


 


“Partnership Agreement”
means the Amended and Restated Agreement of Limited Partnership of OSG MLP dated
as of the date of this Agreement, as amended, supplemented or otherwise
modified from time to time.


 


4

















 


“Registration Statement”
means the registration statement on Form S-1 (File No. 333-145341)
filed by OSG MLP for the Offering, as may be amended.


 


“Reimbursement Payment” means
an aggregate amount equal to $129,500,000, to reimburse Bulk Ships, One Percent
and OSG MLP General Partner for certain preformation capital expenditures in
respect of Overseas Luxmar, Overseas Maremar and certain other vessels being
transferred to OSG MLP.


 


“Subordinated Units” has
the meaning assigned to such term in the Partnership Agreement.


 


“Underwriters” has the
meaning given to such term in the recitals to this Agreement.


 


“Underwriting Agreement”
means the Underwriting Agreement by and among Overseas Shipholding Group, Inc.,
OSG MLP General Partner, OSG MLP, the Underwriters and the other parties
thereto, dated as of November 8, 2007.


 


“Vessels” means the vessels
owned or operated by the Operating Subsidiaries.


 


ARTICLE II


 


Contribution and Conveyance


 


SECTION 2.01.  Acknowledgement
of Transfer by Bulk Ships of Luxmar and Maremar Interests.  Bulk Ships and OSG MLP hereby acknowledge the
assignment, conveyance, transfer and delivery by Bulk Ships, on behalf of
itself, One Percent and OSG MLP General Partner, to OSG MLP of all of its
right, title and interest in and to all of the Luxmar and Maremar Interests on August 30,
2007.


 


SECTION 2.02.  Transfer
by Bulk Ships of OSG MLP Operating Company Interests.  Bulk Ships, on behalf of itself, One Percent
and OSG MLP General Partner, hereby assigns, conveys, transfers and delivers to
OSG MLP all of its right, title and interest in and to the OSG MLP Operating
Company Interest and OSG MLP hereby acquires and accepts from Bulk Ships all
right, title and interest of Bulk Ships in and to the OSG MLP Operating Company
Interest.


 


SECTION 2.03.  Transfer
by OSGM of ATC Interest.  OSGM hereby
assigns, conveys, transfers and delivers to OSG MLP all of its right, title and
interest in and to the ATC Interest and OSG MLP hereby acquires and accepts
from OSGM all right, title and interest of OSGM in and to the ATC Interest.


 


SECTION 2.04.  Issuance
of Units and Payment of Reimbursement Payment for Luxmar and Maremar Interests
and the OSG MLP Operating Company Interest. 
OSG MLP hereby (a)(i) issues to Bulk Ships 6,496,827 Common Units, (ii) issues
to Bulk Ships 14,999,999 Subordinated Units and (iii) makes a cash


 


5

















 


distribution
to Bulk Ships in an aggregate amount equal to the Reimbursement Payment, (b) issues
to One Percent 277,213 Common Units and (c)(i) issues the OSG MLP General
Partner the Incentive Distribution Rights and (ii) issues to OSG MLP
General Partner 612,244 General Partner Units.


 


SECTION 2.05.  Issuance
of Units to OSGM for ATC Interest. 
OSG MLP hereby issues to OSGM 725,759 Common Units.


 


SECTION 2.06.  Conversion
of Bulk Ships’ Limited Partner Interest. 
OSG MLP hereby converts Bulk Ships’ limited partner interest
representing a 97% interest in OSG MLP, prior to the execution of the
Underwriting Agreement, into one Subordinated Unit and Bulk Ships hereby
acknowledges receipt of such one Subordinated Unit.


 


SECTION 2.07.  Conversion
of One Percent’s Limited Partner Interest. 
OSG MLP hereby converts One Percent’s limited partner interest
representing a 1% interest in OSG MLP, prior to the execution of the
Underwriting Agreement, into one Common Unit and One Percent hereby
acknowledges receipt of such one Common Unit.


 


SECTION 2.08.  Conversion
of OSG MLP General Partner’s General Partner Interest.  OSG MLP hereby converts OSG MLP General
Partner’s general partner interest representing a 2% interest in OSG MLP, prior
to the execution of the Underwriting Agreement, into one General Partner Unit
and OSG MLP hereby acknowledges receipt of such one General Partner Unit.


 


SECTION 2.09.  OSG MLP’s
Receipt of the OSG MLP Operating Company Interest and Luxmar and Maremar
Interests.  As consideration for (a) the
issuance of 6,774,241 Common Units, 14,999,999 Subordinated Units, the
Incentive Distribution Rights and 612,244 General Partner Units and (b) the
making of the Reimbursement Payment, OSG MLP hereby acknowledges receipt of the
OSG MLP Operating Company Interest and the Luxmar and Maremar Interests.


 


SECTION 2.10.  OSG MLP’s
Receipt of ATC Interest.  As
consideration for the issuance of 725,759 Common Units OSG MLP hereby
acknowledges receipt of the ATC Interest.


 


SECTION 2.11.  Bulk Ships’,
One Percent’s and OSG MLP General Partner’s Receipt of Units and Reimbursement
Payment.  As consideration for the
OSG MLP Operating Company Interest, the Luxmar and Maremar Interests and the
conversion of their existing interests in OSG MLP as provided for in this
Agreement, (a) Bulk Ships hereby acknowledges receipt of (i) 6,496,827
Common Units, (ii) 15,000,000 Subordinated Units and (iii) the
Reimbursement Payment, (b) One Percent hereby acknowledges receipt of 277,414
Common Units and (c) OSG MLP General Partner hereby acknowledges receipt
of (i) the Incentive Distribution Rights and (ii) 612,245 General
Partner Units.


 


SECTION 2.12.  OSGM
Receipt’s of Units.  As consideration
for the ATC Interest, OSGM hereby acknowledges receipt of 725,759 Common Units.


 


6

















 


SECTION 2.13.  Transfer
of Luxmar and Maremar Interest and ATC Interest.  OSG MLP hereby assigns, conveys, transfers and
delivers the Luxmar and Maremar Interests and the ATC Interest to OSG MLP Operating
Company and OSG MLP Operating Company hereby acknowledges receipt of such
Luxmar and Maremar Interests.


 


SECTION 2.14.  OSG MLP
Operating Company’s Receipt of Luxmar and Maremar Interests and ATC Interests.  OSG MLP Operating Company hereby acknowledges
receipt of the Luxmar and Maremar Interests and the ATC Interest.


 


ARTICLE III


 


Assumption of Certain Liabilities and Adoption of Certain Limited
Liability Company Agreements


 


SECTION 3.01.  Assumption
of Liabilities.  In connection with
the transfer of the OSG MLP Operating Company Interest by Bulk Ships, on behalf
of itself, One Percent and OSG MLP General Partner, as described in Article II
above, OSG MLP hereby assumes and agrees to duly and timely pay, perform and
discharge when due all of liabilities and obligations of the applicable Vessel Owning
Subsidiary relating the construction costs or rebuilding expenses with respect
to the vessels OSG Endurance, OSG Courageous and OSG 243, to the full extent
that such Vessel Owning Subsidiary has been or would have been in the future
obligated to pay, perform and discharge such liabilities and obligations were it
not for the execution and delivery of this Agreement; provided, however,
that such assumption and agreement to duly and timely pay, perform and
discharge such liabilities and obligations shall not (a) increase the
obligation of OSG MLP with respect to such liabilities and obligations beyond
that of the applicable Vessel Owning Subsidiary, (b) waive any defense
that was available to such Vessel Owning Subsidiary with respect to such liabilities
and obligations or (c) enlarge any rights or remedies of any third party
under or with respect to any such liabilities and obligations.


 


SECTION 3.02.  Adoption
of Limited Liability Company Agreement of OSG MLP Operating Company.  OSG MLP hereby agrees that all of the limited
liability company interests in OSG MLP Operating Company acquired by OSG MLP
pursuant to this Agreement shall be bound by and the subject to the terms of
the Limited Liability Company Agreement of OSG MLP Operating Company dated as
of October 2, 2007, as amended (the “OSG MLP Operating Company LLC
Agreement”) and hereby adopts and agrees to be bound by the terms of the OSG
MLP Operating Company LLC Agreement with the same force and effect as if OSG
MLP were originally party thereto.


 


SECTION 3.03.  Adoption
of Limited Liability Company Agreements of Luxmar Tanker LLC.  OSG MLP Operating Company hereby agrees that
all of the limited liability company interests in Luxmar Tanker LLC acquired by
OSG MLP Operating Company pursuant to this Agreement shall be bound by and
subject to the terms of the limited liability company agreement of Luxmar
Tanker LLC, as amended


 


7

















 


through the
date of this Agreement (the “Luxmar LLC Agreement”), and hereby adopts
and agrees to be bound by the terms of the Luxmar LLC Agreement with the same
force and effect as if OSG MLP Operating Company were originally a party
thereto.


 


SECTION 3.04.  Adoption
of Limited Liability Company Agreements of Maremar Tanker LLC.  OSG MLP Operating Company hereby agrees that
all of the limited liability company interests in Maremar Tanker LLC acquired
by OSG MLP Operating Company pursuant to this Agreement shall be bound by and
subject to the terms of the limited liability company agreement of Maremar
Tanker LLC, as amended through the date of this Agreement (the “Maremar LLC
Agreement”), and hereby adopts and agrees to be bound by the terms of the Maremar
LLC Agreement with the same force and effect as if OSG MLP Operating Company
were originally a party thereto.


 


ARTICLE IV


 


Additional Transaction


 


SECTION 4.01.  Exercise
of the Over-Allotment Option.  The
Parties agree that if the Underwriters exercise their over-allotment option
with respect to the Offering, OSG MLP shall redeem first from One Percent,
second from OSGM and third from Bulk Ships until an aggregate number of Common
Units has been redeemed equal to the number of Common Units issued upon the
exercise of the over-allotment option, at a price per common unit equal to the
price per Common Unit before expenses, but after underwriting discounts,
commissions and structuring fees.


 


ARTICLE V


 


Representations and Warranties


 


SECTION 5.01.  Representations and Warranties of Bulk
Ships and One Percent.  Bulk Ships
and One Percent hereby, jointly and severally, represent and warrant to OSG MLP
as follows:


 


(a)  Organization,
Standing and Power.  Each of the Operating
Subsidiaries is a limited liability company duly formed, validly existing and
in good standing under Delaware law and has the power to own, lease, charter,
operate or otherwise hold its assets and to conduct its businesses as presently
conducted.


 


(b)  Authority;
Execution and Delivery; Enforceability. 
Each of Bulk Ships and One Percent has full power and authority to
execute this Agreement and to consummate the transactions contemplated
hereby.  The execution and delivery by each
of Bulk Ships and One Percent of this Agreement and the consummation by each of
Bulk Ships and One Percent of the transactions contemplated hereby have been
duly authorized by all necessary corporate action.  Each of Bulk Ships and One Percent has duly
executed and delivered this Agreement and this Agreement constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms, subject


 


8

















 


to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity at law.


 


(c)  No Conflicts;
Consents.  The execution, delivery
and performance by Bulk Ships and One Percent of this Agreement will not
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under any provision of (i) their or any Vessel
Owning Subsidiary’s certificate of formation or certificate of incorporation or
limited liability company agreement, by-laws or other organizational documents,
(ii) any lien, encumbrance, security interest, pledge, mortgage, charge,
other claim, contract, lease, license, indenture, agreement, commitment or
other legally binding arrangement to which they or any Vessel Owning Subsidiary
is a party or by which any of their or any Vessel Owning Subsidiary’s assets
may be bound or (iii) any applicable Law. 
Except as already obtained, no material consent, approval, license,
permit, order or authorization of, or registration, declaration or filing with,
any federal, state, local or foreign governmental authority is required in
connection with the execution, delivery and performance of this Agreement or
the consummation of the transactions contemplated hereby.


 


(d)  The Interests.  Bulk Ships has good and valid title to the Luxmar
and Maremar Interests and the OSG MLP Operating Company Interest, free and
clear of all mortgages, liens, security interests, covenants, options, claims,
restrictions, or encumbrances of any kind. 
With respect to the Luxmar and Maremar Interests and the OSG MLP
Operating Company Interest, there is no further obligation to make any capital
contribution to the applicable Vessel Owning Subsidiary.


 


SECTION 5.02.  Representations and Warranties of OSGM.  OSGM hereby represents and warrants to OSG
MLP as follows:


 


(a)  Organization,
Standing and Power.  Alaska Tanker
Company, LLC (“ATC”) is a limited liability company duly formed, validly
existing and in good standing under Delaware law and has the power to own,
lease, charter, operate or otherwise hold its assets and to conduct its
businesses as presently conducted.


 


(b)  Authority;
Execution and Delivery; Enforceability. 
OSGM has full power and authority to execute this Agreement and to
consummate the transactions contemplated hereby.  The execution and delivery by OSGM of this
Agreement and the consummation by OSGM of the transactions contemplated hereby
have been duly authorized by all necessary corporate action.  OSGM has duly executed and delivered this
Agreement and this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity at law.


 


(c)  No Conflicts;
Consents.  The execution, delivery
and performance by OSGM of this Agreement will not conflict with, or result in
any violation of or default


 


9

















 


(with or without notice or lapse of time, or
both) under any provision of (i) its or ATC’s certificate of formation or
certificate of incorporation or limited liability company agreement or by-laws,
(ii) any lien, encumbrance, security interest, pledge, mortgage, charge,
other claim, contract, lease, license, indenture, agreement, commitment or
other legally binding arrangement to which it or ATC is a party or by which any
of its or ATC’s assets may be bound or (iii) any applicable Law.  Except as already obtained, no material
consent, approval, license, permit, order or authorization of, or registration,
declaration or filing with, any federal, state, local or foreign governmental
authority is required in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby.


 


(d)  The Interests.  OSGM has good and valid title to the ATC Interest,
free and clear of all mortgages, liens, security interests, covenants, options,
claims, restrictions, or encumbrances of any kind.  With respect to the ATC Interest, there is no
further obligation to make any capital contribution to the ATC.


 


SECTION 5.03.  DISCLAIMER OF WARRANTIES.  (a)  EXCEPT TO THE EXTENT PROVIDED IN
ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR
THE OFFERING INCLUDING THE OMNIBUS AGREEMENT, THE PARTIES HEREBY ACKNOWLEDGE
AND AGREE THAT NONE OF THE PARTIES HAS MADE, OR MAKES AND EACH SUCH PARTY
SPECIFICALLY NEGATES, DISCLAIMS AND DENIES ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, PAST OR
PRESENT, REGARDING (i) THE VALUE, NATURE, QUALITY OR CONDITION OF THE OPERATING
SUBSIDIARIES AND THE ASSETS OWNED BY THE OPERATING SUBSIDIARIES (INCLUDING THE
VESSELS), INCLUDING THE ENVIRONMENTAL CONDITION OF SUCH ASSETS GENERALLY,
INCLUDING, THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES OR OTHER MATTERS IN,
ON OR ABOUT SUCH ASSETS, (ii) THE INCOME TO BE DERIVED FROM SUCH ASSETS, (iii) THE
SUITABILITY OF SUCH ASSETS FOR ANY AND ALL ACTIVITIES AND USES THAT MAY BE
CONDUCTED THEREON, THEREBY OR THEREWITH, (iv) THE COMPLIANCE OF OR BY SUCH
ASSETS OR THEIR OPERATION WITH ANY LAWS (INCLUDING ENVIRONMENTAL PROTECTION OR
POLLUTION LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS), OR (v) THE
SEAWORTHINESS, HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF SUCH ASSETS. EXCEPT TO THE EXTENT PROVIDED
IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT
OR THE OFFERING INCLUDING THE OMNIBUS AGREEMENT, EACH PARTY ACKNOWLEDGES AND
AGREES THAT IT HAS HAD THE OPPORTUNITY TO INSPECT THE RESPECTIVE ASSETS OF THE OPERATING
SUBSIDIARIES AND IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE RESPECTIVE
ASSETS OF THE OPERATING SUBSIDIARIES AND NOT ON ANY INFORMATION PROVIDED OR TO
BE PROVIDED BY ANY OF THE OTHER


 


10

















 


PARTIES. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED
OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING INCLUDING THE
OMNIBUS AGREEMENT, NONE OF THE PARTIES IS LIABLE OR BOUND IN ANY MANNER BY ANY
VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
ASSETS OF THE OPERATING SUBSIDIARIES FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT
OR THIRD PARTY. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING INCLUDING THE
OMNIBUS AGREEMENT, EACH OF THE PARTIES HEREBY ACKNOWLEDGES THAT, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, THE ASSETS OWNED BY THE OPERATING SUBSIDIARIES, AS
PROVIDED FOR HEREIN, ARE CONVEYED ON AN “AS IS,” “WHERE IS” CONDITION WITH ALL
FAULTS, AND THE ASSETS OF THE OPERATING SUBSIDIARIES ARE CONVEYED SUBJECT TO
ALL OF THE MATTERS CONTAINED IN THIS SECTION. THIS SECTION SHALL SURVIVE
SUCH CONVEYANCE OR THE TERMINATION OF THIS AGREEMENT. THE PROVISIONS OF THIS SECTION HAVE
BEEN NEGOTIATED BY THE PARTIES AFTER DUE CONSIDERATION AND ARE INTENDED TO BE A
COMPLETE EXCLUSION, NEGATION AND DENIAL OF ANY REPRESENTATIONS OR WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE ASSETS OF THE OPERATING
SUBSIDIARIES THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN
EFFECT, OR OTHERWISE, EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE
OFFERING, INCLUDING, THE OMNIBUS AGREEMENT.


 


ARTICLE VI


 


Further Assurances


 


SECTION 6.01.  Further
Assurances.  From time to time, and
without any further consideration, as and when requested by any Party, each
Party shall execute and deliver, or cause to be executed and delivered, all
such documents and instruments and shall take, or cause to be taken, all such
further or other actions as such other Party may reasonably deem necessary or
desirable to consummate the transactions contemplated by this Agreement
including, in the case of Bulk Ships, One Percent and OSGM executing and delivering
to OSG MLP such assignments, deeds, bills of sale, consents and other
instruments as OSG MLP may reasonably request as necessary or desirable for
such purpose.


 


11

















 


ARTICLE VII


 


Miscellaneous


 


SECTION 7.01.  Survival
of Representations and Warranties. 
The representations and warranties of Bulk Ships and OSGM in this
Agreement and in or under any documents, instruments and agreements delivered
pursuant to this Agreement, will survive the completion of the transactions
contemplated hereby regardless of any independent investigations that OSG MLP
may make or cause to be made, or knowledge it may have, prior to the date of
this Agreement and will continue in full force and effect for a period of one
year from the date of this Agreement.  At
the end of such period, such representations and warranties will terminate, and
no claim may be brought by OSG MLP against Bulk Ships or OSGM thereafter based upon
such representations and warranties.


 


SECTION 7.02.  Costs.  OSG MLP shall pay any and all sales, use and
similar taxes arising out of the conveyances and deliveries to be made
hereunder and shall pay all documentary, filing, recording, transfer, deed, and
conveyance taxes and fees required in connection therewith.


 


SECTION 7.03.  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, 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, 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, and whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without
limitation”.


 


SECTION 7.04.  Successors
and Assigns.  This Agreement shall be
binding upon and inure to the benefit of the Parties and their respective
successors and assigns.


 


SECTION 7.05.  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.


 


12

















 


SECTION 7.06.  Counterparts.  This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the Parties and delivered to the other Parties.


 


SECTION 7.07.  Governing
Law.  This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, applicable to agreements made and to be performed entirely within such
State, without regard to the conflicts of law principles of such State.


 


SECTION 7.08.  Severability.  If any provision of this Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstances.


 


SECTION 7.09.  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 Interests.


 


SECTION 7.10.  Amendment
or Modification.  This Agreement may
be amended or modified from time to time only by the written agreement of all
the Parties hereto.


 


SECTION 7.11.  Entire
Agreement.  This Agreement
constitutes the entire agreement of the Parties relating to the matters
contained herein, superseding all prior contracts or agreements, whether oral
or written, relating to the matters contained herein.


 


[Signature Page Follows]


 


13

















 


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


 


 


	
   

  	
  OSG BULK SHIPS, INC.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by:

  
	
   

  	
   

  	
   

  	
       /s/ Myles R. Itkin

  
	
   

  	
   

  	
   

  	
  Name: Myles R. Itkin

  
	
   

  	
   

  	
   

  	
  Title: Senior Vice President &
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OSG SHIP MANAGEMENT, INC.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by:

  
	
   

  	
   

  	
   

  	
       /s/ Lois Zabrocky

  
	
   

  	
   

  	
   

  	
  Name: Lois Zabrocky

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OSGAMLP ONE PERCENT INTEREST

  CORPORATION,

  
	
   

  	
   

  
	
   

  	
   

  	
  by:

  
	
   

  	
   

  	
   

  	
       /s/ Jerry Miller

  
	
   

  	
   

  	
   

  	
  Name: Jerry Miller

  
	
   

  	
   

  	
   

  	
  Title: Vice President & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OSG AMERICA LLC.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by:

  
	
   

  	
   

  	
   

  	
       /s/ Myles R. Itkin

  
	
   

  	
   

  	
   

  	
  Name: Myles R. Itkin

  
	
   

  	
   

  	
   

  	
  Title: Chief Financial Officer

  



 


[Signature Page to Amended and Restated Contribution, Conveyance and
Assumption Agreement]


 

















 


	
   

  	
  OSG AMERICA L.P.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by:

  	
  OSG AMERICA LLC, its general

  partner,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by

  
	
   

  	
   

  	
   

  	
   

  	
       /s/ Myles R. Itkin

  
	
   

  	
   

  	
   

  	
   

  	
  Title: Myles R. Itkin

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OSG AMERICA OPERATING

  COMPANY LLC.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by:

  
	
   

  	
   

  	
   

  	
       /s/ Janice K. Smith

  
	
   

  	
   

  	
   

  	
  Name: Janice K. Smith

  
	
   

  	
   

  	
   

  	
  Title: Authorized Officer

  



 


[Signature Page to Amended and Restated
Contribution, Conveyance and Assumption Agreement]