**Exhibit 10.3**

 

EXECUTION COPY

 

 

OMNIBUS AGREEMENT

 

AMONG

 

OVERSEAS SHIPHOLDING GROUP, INC.,

 

OSG AMERICA LLC, AND

 

OSG AMERICA L.P.

 

 

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**TABLE OF CONTENTS**

 
| ** **                                             | ** **                                   | **Page**   |
|--------------------------------------------------------|----------------------------------------------|------------|
| ** **                                             | ** **                                   | ** ** |
| ARTICLE I                                              |
|                                                   |                                         |       |
| Definitions                                            |
|                                                   |
| SECTION 1.01.                                     | Definitions                                  | 2          |
|                                                   |                                         |       |
| ARTICLE II                                             |
|                                                   |
| Restricted Business Opportunities                      |
|                                                   |
| SECTION 2.01.                                     | Restricted  Businesses                       | 7          |
| SECTION 2.02.                                     | Permitted  Exceptions                        | 7          |
| SECTION 2.03.                                     | Scope of  Prohibition                        | 9          |
| SECTION 2.04.                                     | Enforcement                                  | 9          |
|                                                   |                                         |       |
| ARTICLE III                                            |
|                                                   |
| Optional Jones Act Assets                              |
|                                                   |
| SECTION 3.01.                                     | Option to  Purchase Certain Jones Act Assets | 9          |
| SECTION 3.02.                                     | Exercise  Period of Options                  | 10         |
|                                                   |                                         |       |
| ARTICLE IV                                             |
|                                                   |
| Business Opportunities and Option Exercise  Procedures |
|                                                   |
| SECTION 4.01.                                     | Notice of  Offered Assets                    | 10         |
| SECTION 4.02.                                     | Exercise of  Options                         | 10         |
| SECTION 4.03.                                     | Term Sheets                                  | 11         |
| SECTION 4.04.                                     | Access to  Information                       | 11         |
| SECTION 4.05.                                     | Purchase  Price                              | 11         |
| SECTION 4.06.                                     | Last Chance  Option                          | 12         |
|                                                   |                                         |       |
| ARTICLE V                                              |
|                                                   |
| Rights of First Offer                                  |
|                                                   |
| SECTION 5.01.                                     | Rights of  First Offer                       | 12         |
| SECTION 5.02.                                     | Procedures  for Rights of First Offer        | 13         |

 

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| ARTICLE VI         |
|--------------------|
|               |
| Indemnification    |
|               |
| SECTION 6.01. | OSG  Indemnification | 14 |
| SECTION 6.02. | Limitation  Regarding Indemnification | 14 |
| SECTION 6.03. | Indemnification  Procedures | 15 |
|               |   |   |
| ARTICLE VII        |
|               |
| Trade Name License |
|               |
| SECTION 7.01. | Grant of  Trade Name License | 16 |
|               |   |   |
| ARTICLE VIII       |
|               |
| Miscellaneous      |
|               |
| SECTION 8.01. | Choice of  Law; Submission to Jurisdiction | 16 |
| SECTION 8.02. | Notice | 16 |
| SECTION 8.03. | Entire  Agreement | 17 |
| SECTION 8.04. | Termination | 17 |
| SECTION 8.05. | Waiver;  Effect of Waiver or Consent | 17 |
| SECTION 8.06. | Amendment or  Modification | 17 |
| SECTION 8.07. | Assignment | 18 |
| SECTION 8.08. | Counterparts | 18 |
| SECTION 8.09. | Severability | 18 |
| SECTION 8.10. | Gender,  Articles, Sections and Schedules | 18 |
| SECTION 8.11. | Further  Assurances | 18 |
| SECTION 8.12. | Withholding  or Granting of Consent | 18 |
| SECTION 8.13. | Laws and  Regulations | 18 |
| SECTION 8.14. | Negotiation  of Rights of OSG, Limited Partners, Assignees, and Third Parties | 18 |
| SECTION 8.15. | No Recourse  Against Officers or Directors | 19 |

 

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OMNIBUS AGREEMENT is entered into on, andeffective as of, the Closing Date (as defined herein), among OVERSEASSHIPHOLDING GROUP, INC., a Delaware corporation (“OSG”), OSG AMERICALLC, a Delaware limited liability company (including any permitted successorsand assigns under the Partnership Agreement (as defined herein), “OSG MLPGeneral Partner”), for itself and on behalf of OSG MLP (as defined herein)in its capacity as general partner, and OSG AMERICA L.P., a Delaware limitedpartnership (“OSG MLP”).

 

WHEREAS OSG MLP proposes toundertake an initial public offering of its common units and the Parties (asdefined herein) desire to enter into this Agreement to evidence theirunderstanding with respect to the various matters set forth herein;

 

WHEREAS the Parties desire bytheir execution of this Agreement to evidence their understanding, as morefully set forth in Article II and Article IV, with respect to (a) thosebusiness opportunities that the OSG Entities (as defined herein) will notpursue during the term of this Agreement and (b) the procedures wherebysuch business opportunities are to be offered to the OSG Partnership Group (asdefined herein) and accepted or declined;

 

WHEREAS the Parties desire bytheir execution of this Agreement to evidence their understanding, as morefully set forth in Article III and Article IV, with respect to (a) OSGMLP’s exclusive options to acquire the Option Assets (as defined herein) and (b) theprocedures whereby such options are exercised;

 

WHEREAS the Parties desire bytheir execution of this Agreement to evidence their understanding, as morefully set forth in Article V, with respect to (a) OSG’s right offirst offer with respect to certain Jones Act Assets (as defined herein) thatthe OSG MLP Entities may wish to dispose of and (b) OSG MLP’s right offirst offer with respect to certain Jones Act Assets (as defined herein) theOSG Entities may wish to dispose of; and

 

WHEREAS the Parties desire bytheir execution of this Agreement to evidence their understanding, as morefully set forth in Article VI, with respect to certain indemnificationobligations of OSG.

 

NOW, THEREFORE, inconsideration of the foregoing and the respective covenants and agreementscontained herein and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto agree asfollows:

 

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ARTICLE I

 

Definitions

 

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

##  

“Affiliate” means, withrespect to any Person, any other Person that directly or indirectly through oneor more intermediaries’ controls, is controlled by or is under common controlwith, the Person in question.  As usedherein, the term “control” means the possession, direct or indirect, ofthe 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.

 

“Agreement” means thisOmnibus Agreement, as it may be amended, modified, or supplemented from time totime in accordance with Section 8.06 hereof.

 

“APSI” means Aker PhiladelphiaShipyard, Inc., a Pennsylvania corporation.

 

“ASC” means AmericanShipping Corporation, a Delaware corporation.

 

“Bender” means BenderShipbuilding & Repair Co., Inc., an Alabama corporation.

 

“Bid Jones Act Assets”has the meaning given to such term in Section 2.02(e)(iii).

 

“Change of Control”means, with respect to any Person (the “Applicable Person”), any of thefollowing events:  (a) any sale,lease, exchange or other transfer (in one transaction or a series of relatedtransactions) of all or substantially all of the Applicable Person’s assets toany other Person, unless immediately following such sale, lease, exchange orother transfer such assets are owned, directly or indirectly, by the ApplicablePerson; (b) the consolidation or merger of the Applicable Person with orinto another Person pursuant to a transaction in which the outstanding VotingSecurities of the Applicable Person are changed into or exchanged for cash,securities or other property, other than any such transaction where (i) theoutstanding Voting Securities of the Applicable Person are changed into orexchanged for Voting Securities of the surviving Person or its parent and (ii) theholders of the Voting Securities of the Applicable Person immediately prior tosuch transaction own, directly or indirectly, not less than a majority of theoutstanding Voting Securities of the surviving Person or its parent immediatelyafter such transaction; and (c) a “person” or “group” (within the meaningof Sections 13(d) or 14(d)(2) of the Exchange Act) (other than OSGor its Affiliates, with respect to OSG MLP General Partner), being or becomingthe “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under theExchange Act) of more than 50% of all of the then outstanding Voting Securitiesof the Applicable Person, except in a merger or consolidation which would notconstitute a Change of Control under clause (b) above.

 

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“Closing Date” means thedate of the closing of the initial public offering of common units representinglimited partner interests in OSG MLP.

 

“Conflicts Committee”means the Conflicts Committee of the board of directors of OSG MLP GeneralPartner.

 

“Contribution Agreement”means that certain Amended and Restated, Contribution, Conveyance andAssumption Agreement, dated as of the Closing Date, among OSG Bulk Ships, Inc.,OSG Ship Management, Inc., OSGA MLP One Percent Interest Corporation, OSGMLP General Partner, OSG MLP and OSG America Operating Company LLC, togetherwith the additional conveyance documents and instruments contemplated orreferenced thereunder.

 

“Contribution Assets” hasthe meaning given such term in Section 6.01.

 

“control” means thepossession, direct or indirect, of the power to direct or cause the directionof the management and policies of a Person, whether through ownership of votingsecurities, by contract or otherwise.

 

“CoveredEnvironmental Losses” means all Losses suffered or incurred by the OSG MLPGroup by reason of, arising out of or resulting from:

 

(a) any violation orcorrection of violation of Environmental Laws; or

 

(b) any event, omission orcondition relating to environmental or human health and safety matters, in eachcase, associated with the ownership or operation by the OSG Entities of theContribution Assets (including, without limitation, the presence of HazardousSubstances on, under, about or migrating to or from the Contribution Assets orthe disposal, release of or exposure to Hazardous Substances generated by orotherwise related to the operation of the Contribution Assets, irrespective ofwhere such assets are located), including, without limitation, (i) thecost and expense of any investigation, assessment, evaluation, monitoring,containment, cleanup, repair, restoration, remediation or other correctiveaction required or necessary under Environmental Laws, (ii) the cost orexpense of the preparation and implementation of any closure, remedial,corrective action or other plans required or necessary under Environmental Lawsand (iii) the cost and expense for any environmental or toxic tortpre-trial, trial or appellate legal or litigation support work;

 

but only to the extent thatsuch violation complained of under clause (a), or such events, omissions orconditions included in clause (b), occurred before the Closing Date; and, providedthat, in no event shall Losses to the extent arising from a change in anyEnvironmental Law after the Closing Date be deemed “Covered EnvironmentalLosses”.

 

“Environmental Laws”means all U.S. Federal, state and local and all foreign laws, statutes, rules,regulations, orders, judgments and ordinances relating to protection of healthand safety and the environment, including, without limitation, the UnitedStates Federal Comprehensive Environmental Response, Compensation and

 

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Liability Act, the ResourceConservation and Recovery Act, the Clean Air Act, the Clean Water Act, the SafeDrinking Water Act, the Toxic Substances Control Act, the Oil Pollution Act of1990, the Hazardous Materials Transportation Act, the Marine Mammal ProtectionAct, the Endangered Species Act, the National Environmental Policy Act, andother environmental conservation and protection laws, each as amended throughthe Closing Date.

 

“Exchange Act” means theSecurities Exchange Act of 1934, as amended.

 

“First Offer NegotiationNotice” has the meaning given such term in Section 5.02(b).

 

“First Offer NegotiationPeriod” has the meaning given such term in Section 5.02(c).

 

“Hazardous Substances”means (a) substances defined in or regulated under applicableEnvironmental Laws; (b) petroleum and petroleum products, including crudeoil and any fractions thereof; (c) natural gas, synthetic gas and anymixtures thereof; (d) any substances with respect to which a Federal,state, foreign or local agency requires environmental investigation,monitoring, reporting or remediation; (e) any hazardous waste or solidwaste, pollutant or contaminant within the meaning of any Environmental Law; (f) anysolid, hazardous, dangerous or toxic chemical, material, waste or substance,within the meaning of and regulated by any Environmental Law; (g) anyradioactive material; and (h) any asbestos-containing materials thatrepresent a health hazard.

 

“Jones Act Assets” meansany product carrier, tanker or tug-barge unit used in connection with aRestricted Business and related charters and where the context requiresincludes the entity that owns or charters such product carrier, tanker ortug-barge unit.

 

“Jones Act Project”means any project involving a Restricted Business.

 

“Last Chance Option” hasthe meaning given such term in Section 4.06.

 

“lease”, for theavoidance of doubt, includes without limitation, a bareboat charter agreement.

 

“Losses” means losses,damages, liabilities, claims, demands, causes of action, judgments,settlements, fines, penalties, costs and expenses (including, withoutlimitation, court costs and reasonable attorneys’ and experts’ fees) of any andevery kind or character; provided, however, that such term shallnot include any special, indirect, incidental or consequential damages.

 

“Negotiation Period” hasthe meaning given such term in Section 4.05.

 

“Offered Assets” has themeaning given such term in Section 4.01.

 

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“Offered Assets Notice”has the meaning given such term in Section 4.01.

 

“Option Assets” has themeaning given such term in Section 3.01.

 

“Option Assets ExerciseNotice” has the meaning given such term in Section 4.02.

 

“Options” has themeaning given such term in Section 3.01.

 

“OSG” is defined in theintroduction to this Agreement.

 

“OSG Bareboat Charter Entity”has the meaning given such term in Section 3.01(b)(i).

 

“OSG Barge Entity” hasthe meaning given such term in Section 3.01(a)(ii).

 

“OSG Entities” means OSGand any Person controlled, directly or indirectly, by OSG other than the OSG MLPEntities.

 

“OSG MLP” is defined inthe introduction to this Agreement.

 

“OSG MLP General Partner”is defined in the introduction to this Agreement.

 

“OSG MLP Entities” meansOSG MLP General Partner and each member of the OSG MLP Group.

 

“OSG MLP Group” means OSGMLP and any Person controlled by OSG MLP.

 

“OSG MLP Group Member”means any Person that is part of the OSG MLP Group.

 

“OSG Tug Entity” has themeaning given to such term in Section 3.01(a)(i).

 

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

 

“Partnership Agreement”means the Amended and Restated Agreement of Limited Partnership of the OSG MLP,dated as of the Closing Date, as such agreement is in effect on the ClosingDate, to which reference is hereby made for all purposes of thisAgreement.  No amendment or modificationto the Partnership Agreement subsequent to the Closing Date shall be giveneffect for purposes of this Agreement unless consented to by each of theParties to this Agreement.

 

“Partnership Securities”has the meaning given to such term in the Partnership Agreement.

 

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“Person” means anindividual, corporation, partnership, joint venture, trust, limited liabilitycompany, unincorporated organization or any other entity.

 

“Potential Transferee”has the meaning given such term in Section 5.02(a).

 

“Potential Transferee GroupMember” means the Potential Transferee and any Person controlled by suchPotential Transferee.

 

“Proposed Purchase Price”has the meaning given to such term in Section 4.05.

 

“Proposed Purchase PriceNotice” has the meaning given to such term in Section 4.05.

 

“Rejection Notice” hasthe meaning given to such term in Section 5.02(d).

 

“Restricted Business” hasthe meaning given to such term in Section 2.01.

 

“Retained Assets” meansall right, title and interest in and to assets of the OSG Entities other than theContribution Assets.

 

“Retained Liabilities”means any and all liabilities and obligations of any and every kind orcharacter of the OSG Entities not assumed by the OSG MLP Group pursuant to theContribution Agreement.

 

“Sale Assets” has themeaning given such term in Section 5.02(a).

 

“Section 7-704(d)”means Section 7-704(d) of the Internal Revenue Code of 1986, asamended, and any successor provision thereto.

 

“Term Sheet” has themeaning given such term in Section 4.03.

 

“Transfer” means anytransfer, assignment, sale or other disposition of the leasehold interests orfee ownership interests in any Jones Act Assets by an OSG Entity or OSG MLPGroup Member or all of the capital stock or membership interests of the OSGEntity or OSG MLP Group Member that leases or owns any Jones Act Assets, asapplicable; provided, however, that such term shall not include:  (a) transfers, assignments, sales orother dispositions from an OSG Entity to another OSG Entity, or from an OSG MLPGroup Member to another OSG MLP Group Member; (b) transfers, assignments,sales or other dispositions pursuant to the terms of any related charter,contract of affreightment or other agreement with a charter party or the partyto the contract of affreightment, as applicable; (c) transfers,assignments, sales or other dispositions pursuant to Article II; or (d) grantsof security interests in or mortgages or liens on such Jones Act Assets infavor of a bona fide third-party lender (but not the foreclosing of any suchsecurity interest, mortgage or lien).

 

“Transfer Notice” hasthe meaning given such term in Section 5.02(a).

 

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“Transferring Party” hasthe meaning given such term in Section 5.02(a).

 

“Transferring Party Parent”has the meaning given such term in Section 5.02(a).

 

“Voting Securities”means securities of any class of a Person entitling the holders thereof to votein the election of members of the board of directors or other similar governingbody of the Person.

 

ARTICLE II

 

Restricted Business Opportunities

 

## SECTION 2.01.  Restricted Businesses.  Except as permitted by Section 2.02, OSGshall not, and shall not permit the other OSG Entities to, engage in or acquireor invest in any business that provides marine transportation, distribution andlogistics services in connection with the transportation of crude oil andrefined petroleum products by water between points in the United States towhich the United States coastwise laws apply to the extent such business, atthe time such business is first proposed to be engaged in by any such OSGEntity, generates “qualifying income” within the meaning of Section 7-704(d) (eacha “Restricted Business”).

##  

## SECTION 2.02.  Permitted Exceptions.  Notwithstanding any provision of Section 2.01to the contrary, any OSG Entity may engage in the following activities underany of the following circumstances:

##  

##### (a) the engagement in, acquisition of or investment in anyRestricted Business with the approval of the Conflicts Committee;

#####  

##### (b) the ownership, operation and/or chartering of any RetainedAssets (including replacements of and modifications or additions to theRetained Assets) or Option Assets (including replacements of and modificationsor additions to the Option Assets) and in the case of any Option Assets unlessand until such Option Assets are Transferred to an OSG MLP Group Member uponthe exercise of the Option to acquire such Option Assets;

#####  

##### (c) the ownership, operation and/or chartering of any Jones ActAssets acquired after the Closing Date, including Jones Act Assets acquired aspart of a larger transaction, if the OSG Entity acquiring such Jones Act Assetshas offered OSG MLP General Partner the opportunity for any of the OSG MLP GroupMembers to acquire such Jones Act Assets in accordance with the procedures setforth in Article IV and OSG MLP General Partner, with the approval of theConflicts Committee, has elected not to cause any OSG MLP Group Member to acquiresuch Jones Act Assets;

#####  

##### 7

##### 

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##### (d) the entry into any arrangement for the construction ofnewbuild Jones Act Assets and/or the chartering of such newbuild Jones ActAssets to a third party that is not an Affiliate of OSG and upon delivery ofany such newbuild Jones Act Assets the ownership, operation and/or charteringof such newbuild Jones Act Asset if the OSG Entity acquiring such Jones ActAssets has offered OSG MLP General Partner the opportunity for any of the OSGMLP Group Members to acquire such newbuild Jones Act Assets in accordance withthe procedures set forth in Article IV and OSG MLP General Partner, withthe approval of the Conflicts Committee, has elected not to cause any OSG MLPGroup Member to acquire such Jones Act Assets;

#####  

##### (e) the ownership, operation and/or chartering of Jones Act Assetsthat (i) have been offered to OSG MLP General Partner as described in Section 2.02(c),(ii) are newbuild Jones Act Assets that have been offered to OSG MLPGeneral Partner as described in Section 2.02(d) or (iii) relateto a tender, bid or award for a proposed Jones Act Project that an OSG Entityhas submitted or received (or hereafter submits or receives) (such Jones ActAssets in clause (iii) being referred to herein as “Bid Jones ActAssets”), in each case pending the applicable offer of such Jones ActAssets to OSG MLP General Partner and the determination of OSG MLP GeneralPartner in accordance with Article IV whether to acquire such Jones ActAssets and, if OSG MLP General Partner, with the approval of the Conflicts Committee,has elected to cause an OSG MLP Group Member to acquire such Jones Act Assets,pending the closing of such acquisition;

#####  

##### (f) the ownership, operation and/or chartering of Jones Act Assetsreferred to in Section 2.02(e) that OSG MLP General Partner, with theapproval of the Conflicts Committee, has elected to cause an OSG MLP GroupMember to acquire such Jones Act Assets but in respect of which (i) OSGand the Conflicts Committee failed to agree upon the terms and conditions forthe Transfer of such Jones Act Assets to an OSG MLP Group Member in accordancewith Article IV and (ii) the Last Chance Option was not exercised inaccordance with Section 4.06;

#####  

##### (g) the provision by OSG Entities of ship management servicesrelating to a Restricted Business;

#####  

##### (h) the acquisition of up to a 9.9% equity ownership, voting orprofit participation interest in any publicly traded Person (other than OSG MLP)that engages in a Restricted Business;

#####  

##### (i) the ownership, operation and/or chartering of any Jones ActAssets with respect to which OSG MLP General Partner has advised OSG that OSGMLP General Partner has elected, with the approval of the Conflicts Committee,not to cause an OSG MLP Group Member to acquire (or seek to acquire).

#####  

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##### 

##  

## SECTION 2.03.  Scope of Prohibition.  If any OSG Entity engages in a RestrictedBusiness pursuant to any of the exceptions described in Section 2.02 OSG shallnot, and shall not permit the other OSG Entities to, subsequently expand suchbusiness other than pursuant to the exceptions contained in Section 2.02.  Except as otherwise provided in this Article IIand the Partnership Agreement each OSG Entity shall be free to engage (whetherdirectly or through the acquisition of equity or debt interests in any Person) inany business activity whatsoever, including those that may be in directcompetition with any OSG MLP Entity.

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## SECTION 2.04.  Enforcement.  OSG agrees and acknowledges that OSG MLP doesnot have an adequate remedy at law for the breach by OSG of its covenants andagreements set forth in this Article II, and that any breach by OSG of itscovenants and agreements set forth in this Article II would result inirreparable injury to OSG MLP.  OSGfurther agrees and acknowledges that OSG MLP may, in addition to the otherremedies which may be available to OSG MLP, file a suit in equity to enjoin OSGfrom such breach, and consent to the issuance of injunctive relief to enforcethe provisions of this Article II.

##  

ARTICLE III

 

Optional Jones Act Assets

 

## SECTION 3.01.  Option to Purchase Certain Jones ActAssets.  OSG, on behalf of itself andthe other OSG Entities, hereby grants to OSG MLP General Partner, on behalf ofOSG MLP, exclusive options for any of the OSG MLP Group Members to:

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### (a)  purchase (i) allof the capital stock or membership interests of each OSG Entity specified inSchedule I to this Agreement (each an “OSG Tug Entity”) that hasentered into a shipbuilding contract with Bender to construct the newbuildJones Act Assets specified in Schedule I to this Agreement alongside thename of such OSG Tug Entity and (ii) with respect to each such OSG TugEntity, all of the capital stock or membership interests of each OSG Entity(each an “OSG Barge Entity”) specified in Schedule 1 alongside suchOSG Tug Entity that has entered into a shipbuilding contract with Bender toconstruct the newbuild Jones Act Assets specified in Schedule I alongsidethe name of such OSG Barge Entity;

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### (b)  (i) purchase allof the capital stock or membership interests of each OSG Entity specified inSchedule II to this Agreement (each an “OSG Bareboat Charter Entity”)that has entered into a bareboat charter agreement with a wholly ownedsubsidiary of ASC to lease from such wholly owned subsidiary of ASC the newbuildJones Act Assets specified in Schedule II to this Agreement alongside thename of such OSG Bareboat Charter Entity that is being or will be constructedby APSI and (ii) with respect to each such OSG Bareboat Charter Entity, eitherpurchase all of the capital stock or membership interests of the applicable OSGEntity that is the indirect parent of the OSG Entity that has entered into atime charter agreement with such OSG Bareboat Charter Entity to time charterthe newbuild Jones Act Assets leased by such OSG

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### Bareboat Charter Entity from a wholly owned subsidiary of ASC or takean assignment of the applicable time charter agreement with such OSG BareboatCharter Entity to time charter the newbuild Jones Act Assets leased by such OSGBareboat Charter Entity from a wholly owned subsidiary of ASC;

###  

Each OSG Entity subject toclauses (a) and (b) above (collectively, the “Option Assets”)shall be subject to separate options (each an “Option”, andcollectively, the “Options”) capable of being exercised by OSG MLPGeneral Partner, with the approval of the Conflicts Committee, individually andseparate from each other Option.

 

## SECTION 3.02.  Exercise Period of Options.  Each Option to acquire Option Assets may beexercised by OSG MLP General Partner, with the approval of the ConflictsCommittee, at any time during the period commencing as of the Closing Date andending on the date that is 364 days after the date of delivery of theapplicable Option Assets subject to such Option.

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ARTICLE IV

 

Business Opportunities and Option Exercise Procedures

 

## SECTION 4.01.  Notice of Offered Assets.  In the event that (a) an OSG Entityacquires Jones Act Assets as described in Section 2.02(c), (b) an OSGEntity enters into an arrangement for the construction of newbuild Jones ActAssets as described in Section 2.02(d) or (c) an OSG Entity isawarded a contract for the transportation requirements for all or any portionof any proposed Jones Act Project for which an OSG Entity has tendered orsubmitted a bid or received an award as described in Section 2.02(e)(iii),then:

##  

(i) in the case of clause (a) above,not later than 30 days after the consummation of the acquisition; or

 

(ii) in the case of clauses (b) and(c) above, not later than 180 days before the scheduled delivery dateof the relevant newbuild Jones Act Assets or Bid Jones Act Assets,

 

OSG shall notify (an “OfferedAssets Notice”) OSG MLP General Partner of such event and offer OSG MLPGeneral Partner the opportunity for any of the OSG MLP Group Members to acquiresuch Jones Act Assets (the “Offered Assets”).

 

## SECTION 4.02.  Exercise of Options.  OSG MLP General Partner shall notify (an “OptionAssets Exercise Notice”) OSG during the exercise period for each Option thateither (a) OSG MLP General Partner has elected, with the approval of theConflicts Committee, not to exercise such Option or (b) OSG MLP GeneralPartner, with the approval of the Conflicts Committee, has elected to exercisesuch Option and wishes to cause an OSG MLP Group Member to acquire the OptionAssets subject to such Option, subject to the negotiation of the terms andconditions of the Transfer to an OSG

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## MLP Group Member of such Option Assets in accordance with theprovisions of this Article IV.

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## SECTION 4.03.  Term Sheets.  In the event that (a) OSG gives anOffered Assets Notice or (b) OSG MLP General Partner gives an Option AssetsExercise Notice electing, with the approval of the Conflicts Committee, toexercise the applicable Option, then:

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###### (i) in the case of clause (a) above, at the same timethe Offered Assets Notice is given;

######  

###### (ii) in the case of clause (b) above, not later than 45days after the date of the Option Assets Exercise Notice,

######  

OSG shallsubmit a term sheet (a “Term Sheet”) to OSG MLP General Partnercontaining the fundamental terms and conditions (other than purchase price) onwhich it would be willing to Transfer (or to cause another OSG Entity toTransfer) to an OSG MLP Group Member the applicable Offered Assets or OptionAssets, as applicable, including any liabilities to be assumed by OSG MLP.

 

## SECTION 4.04.  Access to Information.  As soon as practicable after a Term Sheet hasbeen submitted to OSG MLP General Partner, OSG will deliver to OSG MLP GeneralPartner all information prepared by or on behalf of or in the possession of OSGrelating to the Offered Assets or the Option Assets, as applicable, andreasonably requested by OSG MLP General Partner.  As a condition of delivery of suchinformation to OSG MLP General Partner, OSG may require OSG MLP General Partnerto execute a formal confidentiality agreement in respect of such information ina form reasonably satisfactory to OSG.

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## SECTION 4.05.  Purchase Price.  Within 45 days after receiving a TermSheet, OSG MLP General Partner shall, with the approval of the ConflictsCommittee, notify (a “Proposed Purchase Price Notice”) OSG of the consideration,which may be any combination of cash and Partnership Securities, (the “ProposedPurchase Price”) it is willing to cause an OSG MLP Group Member to pay forthe applicable Offered Assets or Option Assets. OSG and the Conflicts Committee shall negotiate in good faith for a 50-dayperiod following receipt of the Proposed Purchase Price Notice by OSG (the “NegotiationPeriod”) the terms and conditions of an agreement, including theconsideration, for the Transfer of such Offered Assets or Option Assets, asapplicable, to an OSG MLP Group Member and such terms and conditions and considerationare to be based on the terms and conditions set forth in the Term Sheet and theProposed Purchase Price Notice.  If OSGand the Conflicts Committee are unable to agree on the terms and conditions ofan agreement for the Transfer of such Offered Assets or Option Assets, asapplicable, during the Negotiation Period then OSG and the Conflicts Committeeshall negotiate in good faith for a further 10-day period the terms andconditions of a cash-only agreement for the Transfer of such Offered Assets orOption Assets, as applicable, to an OSG MLP Group Member and failing agreement theapplicable OSG Entity may Transfer the applicable Offered Assets or OptionAssets to a third party not Affiliated

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## 

##  

## with OSG within 180 days after the end of the 10-day periodimmediately following the Negotiation Period on terms and conditions that arenot materially more favorable to the proposed purchaser than the terms andconditions specified in the Term Sheet and for a purchase price that is notless than 101% of the fair market value of the Proposed Purchase Price withoutany further obligation, during such 180 day period, to offer OSG MLP GeneralPartner the opportunity for any of the OSG MLP Group Members acquire theapplicable Offered Assets or Option Assets in accordance with Article V.

##  

## SECTION 4.06.  Last Chance Option.  If the applicable OSG Entity has notTransferred, or agreed in writing to Transfer, such Offered Assets or OptionAssets, as applicable, to a third party not Affiliated with OSG within 180 daysafter the end of the 10-day period immediately following the Negotiation Periodin accordance with Section 4.05 then OSG MLP General Partner may elect,with the approval of the Conflicts Committee, to cause an OSG MLP Group Memberto acquire the applicable Offered Assets or Option Assets upon the terms andconditions specified in the Term Sheet and for the Proposed Purchase Price (a “LastChance Option”).  OSG MLP GeneralPartner shall notify OSG within 45 days of the earlier of the expirationof the 180-day period after the end of the 10-day period immediately followingthe Negotiation Period and such date on which OSG notifies OSG MLP GeneralPartner that it will no longer pursue a Transfer to a third party not Affiliatedwith OSG that either (a) OSG MLP General Partner has elected, with theapproval of the Conflicts Committee, not to exercise the Last Chance Option or (b) OSGMLP General Partner, with the approval of the Conflicts Committee, has electedto exercise the Last Chance Option and wishes to cause an OSG MLP Group Memberto acquire the Offered Assets or Option Assets subject to such Last ChanceOption upon the terms and conditions specified in the Term Sheet and for theProposed Purchase Price.  In the event thatOSG MLP General Partner elects, with the approval of the Conflicts Committee,not to exercise the Last Chance Option with respect to such Offered Assets orOption Assets, then such OSG Entity shall be permitted to retain such OfferedAssets or Option Assets in accordance with Article II.

##  

ARTICLE V

 

Rights of First Offer

 

## SECTION 5.01.  Rights of First Offer.  (a)  OSG MLP, on behalf of itself and theother OSG MLP Group Members, hereby grants to OSG a right of first offer on anyproposed Transfer by any OSG MLP Group Member of any Jones Act Assets owned, operatedor chartered by any such OSG MLP Group Member.

##  

### (b)  OSG, on behalf ofitself and the other OSG Entities, hereby grants to OSG MLP General Partner, onbehalf of OSG MLP, a right of first offer on any proposed Transfer by any OSGEntity of any Jones Act Assets owned, operated or chartered by any such OSGEntity, including any Option Asset or Offered Asset not purchased by any OSGMLP Group Member pursuant to Article IV.

###  

### 12

### 

###  

### (c)  The Partiesacknowledge that all potential Transfers of Jones Act Assets pursuant to this Article Vare subject to obtaining any and all written consents of governmentalauthorities and other non-affiliated third parties and to the terms of allexisting agreements in respect of such Jones Act Assets.

###  

## SECTION 5.02.  Procedures for Rights of First Offer.  (a)  In the event that an OSG MLP GroupMember or an OSG Entity (as applicable, the “Transferring Party”)proposes to Transfer any Jones Act Assets (the “Sale Assets”) to a thirdparty not Affiliated with such Transferring Party, prior to engaging in anynegotiations or otherwise offering to Transfer the Sale Assets to any suchthird party, OSG or OSG MLP General Partner on behalf of such TransferringParty (the “Transferring Party Parent”) shall notify (a “TransferNotice”) OSG or OSG MLP General Partner, as applicable, (the “PotentialTransferee”) of such event and shall specify in such Transfer Notice thefundamental terms and conditions (including the consideration to be paid) onwhich it would be willing to Transfer (or if it is not the Transferring Party,to cause the Transferring Party to Transfer) to a Potential Transferee GroupMember the Sale Assets, including any liabilities to be assumed by thePotential Transferee Group Member.  OSGGeneral Partner may only give a Transfer Notice with the approval of theConflicts Committee.

##  

### (b)  The PotentialTransferee shall notify (a “First Offer Negotiation Notice”) the TransferringParty Parent within 10 days of receiving a Transfer Notice that either (a) thePotential Transferee does not wish to cause a Potential Transferee Group Memberto acquire the Sale Assets or (b) the Potential Transferee does wish tocause a Potential Transferee Group Member to acquire the Sale Assets, subjectto the negotiation of the terms and conditions of the Transfer of the SaleAssets to a Potential Transferee Group Member in accordance with the provisionsof this Article V.  OSG GeneralPartner may only give a First Offer Negotiation Notice with the approval of theConflicts Committee.

###  

### (c)  In the event that aPotential Transferee gives a First Offer Negotiation Notice specifying that thePotential Transferee does wish to cause a Potential Transferee Group Member toacquire the Sale Assets then the Potential Transferee and the TransferringParty Parent shall negotiate in good faith for a 60-day period followingreceipt of the First Offer Negotiation Notice by the Transferring Party Parent(the “First Offer Negotiation Period”) the terms and conditions of anagreement for the Transfer of such Sale Assets to a Potential Transferee GroupMember and such terms and conditions are to be based on the terms and conditionsset forth in the Transfer Notice.

###  

### (d)  If (i) thePotential Transferee has given a First Offer Negotiation Notice specifying  that the Potential Transferee does not wishto cause a Potential Transferee Group Member to acquire the Sale Assets (a “RejectionNotice”) or (ii) the Potential Transferee and the Transferring PartyParent are unable to agree on the terms and conditions of an agreement for theTransfer of such Sale Assets during the First Offer Negotiation Period, thenthe Transferring Party may Transfer such Sale Assets to a third party notAffiliated with the Transferring Party within 180 days after the earlier of thedate the Transferring Party Parent receives a Rejection Notice and the end ofthe First

###  

### 13

### 

###  

### Offer Negotiation Period on terms and conditions that are notmaterially more favorable to the proposed purchaser than the terms andconditions specified in the Transfer Notice.

###  

### (e)  If the TransferringParty has not Transferred, or agreed in writing to Transfer, such Sale Assets toa third party not Affiliated with such Transferring Party within 180 daysafter the earlier of the date the Transferring Party Parent receives aRejection Notice and the end of the First Offer Negotiation Period inaccordance with clause (d) then the Transferring Party shall notthereafter Transfer any of such Sale Assets without first offering such Sale Assetsto the applicable Potential Transferee in the manner provided above.

###  

ARTICLE VI

 

Indemnification

 

## SECTION 6.01.  OSG Indemnification.  Subject to the provisions of Section 6.02and Section 6.03, OSG shall indemnify, defend and hold harmless the OSG MLPGroup from and against:  (a) any Covered Environmental Lossesrelating to the assets contributed by the OSG Entities to the OSG MLP Group  prior to or on the Closing Date (the “ContributionAssets”) to the extent that OSG is notified by OSG MLP General Partner ofany such Covered Environmental Losses within five years after the Closing Date;(b) Losses to the OSG MLP Group arising from (i) the failure of the OSGMLP Group, immediately after the Closing Date, to be the owner of such validleasehold interests or fee ownership interests in and to the ContributionAssets, as applicable, as are necessary to enable the OSG MLP Group Members toown or operate the Contribution Assets in substantially the same manner that theContribution Assets were owned or operated by the OSG Entities immediatelyprior to the Closing Date or (ii) the failure of the OSG MLP Entities tohave by the Closing Date any consent or governmental permit necessary to allowthe OSG MLP Entities to own or operate the Contribution Assets in substantiallythe same manner that the Contribution Assets were owned or operated by the OSGEntities immediately prior to the Closing Date, in each of clauses (i) and(ii) above, to the extent that OSG is notified by OSG MLP General Partnerof such Losses within three years after the Closing Date; (c) all U.S. Federal,state and local income tax liabilities attributable to the operation of theContribution Assets prior to the Closing Date, including any such income taxliabilities that may result from the consummation of the formation transactionsfor the OSG MLP Group and OSG MLP General Partner but excluding any U.S. Federal,state and local income taxes reserved on the books of the OSG MLP Group on the ClosingDate, to the extent that OSG is notified by OSG MLP General Partner of suchincome tax liabilities within 60 days after the expiration of the applicablestatute of limitations for any claims relating thereto; (d) Lossesattributable to or associated with ownership or operation of the RetainedAssets, whether occurring before or after the Closing Date; and (e) anyRetained Liabilities.

##  

## SECTION 6.02.  Limitation Regarding Indemnification.  The aggregate liability of OSG under Section 6.01(a) aboveshall not exceed $10,000,000.  Furthermore,no claim may be made against OSG for indemnification pursuant to Section 6.01(a)

##  

## 14

## 

##  

## unless the aggregate dollar amount of all claims for indemnificationpursuant to such section shall exceed $500,000, in which case OSG shall beliable for claims for indemnification only to the extent such aggregate amountexceeds $500,000.  Notwithstanding theforegoing, in the case any Covered Environmental Losses relating to the December 19,2006 Plea Agreement between OSG and the United States, the limitations onliability contained in this Section 6.02 shall not apply to OSG’sindemnification obligations under Section 6.01(a) above for criminalfines, special assessments or community service payments set forth in Paragraphs6 and 9 of such Plea Agreement.

##  

## SECTION 6.03.  Indemnification Procedures.  (a)  OSG MLP General Partner agrees onbehalf of OSG MLP and the OSG MLP Group Members, that within a reasonableperiod of time after any OSG MLP Group member becomes aware of facts givingrise to a claim for indemnification pursuant to Section 6.01, to notify OSGof the nature and specific basis for such claim.

##  

### (b)  OSG shall have theright to control all aspects of the defense of (and any counterclaims withrespect to) any claims brought against the OSG MLP Group that are covered bythe indemnification set forth in Section 6.01, including, withoutlimitation, the selection of counsel, determination of whether to appeal anydecision of any court and the settling of any matter or any issue relatingthereto; provided, however, that no such settlement shall beentered into without the consent (which consent shall not be unreasonably withheld)of OSG MLP General Partner (with the concurrence of the Conflicts Committee),on behalf of the OSG MLP Group, unless it includes a full release of the OSG MLPGroup from such matter or issue, as the case may be.

###  

### (c)  OSG MLP and OSG MLP GeneralPartner shall, and shall cause the OSG MLP Group Members to, cooperate fullywith OSG with respect to all aspects of the defense of any claims covered bythe indemnification set forth in Section 6.01, including, withoutlimitation, the prompt furnishing to OSG of any correspondence or other noticerelating thereto that the OSG MLP Group may receive, permitting the names ofthe members of the OSG MLP Group to be utilized in connection with suchdefense, the making available to OSG of any files, records or other informationof the OSG MLP Group that OSG considers relevant to such defense and the makingavailable to OSG of any employees of the OSG MLP Group; provided, however,that in connection therewith OSG agrees to use reasonable efforts to minimizethe impact thereof on the operations of the OSG MLP Group and further agrees tomaintain the confidentiality of all files, records and other informationfurnished by an OSG MLP Group Member pursuant to this Section 6.03.  The OSG MLP Group Members, may, at their ownoption, cost and expense, hire and pay for counsel in connection with any suchdefense.  OSG agrees to keep any suchcounsel hired by the OSG MLP Group reasonably informed as to the status of anysuch defense (including providing such counsel with such information related toany such defense as such counsel may reasonably request) but OSG shall have theright to retain sole control over such defense.

###  

### (d)  In determining theamount of any Loss for which any of the members of the OSG MLP Group areentitled to indemnification under this Agreement, the gross

###  

### 15

### 

###  

### amount of the indemnification will be reduced by (i) any insuranceproceeds realized by the OSG MLP Group and such correlative insurance benefitshall be net of any incremental insurance premium that becomes due and payableby the OSG MLP Group as a result of such claim, and (ii) all amountsrecovered by the OSG MLP Group under contractual indemnities from any third party.  OSG MLP hereby agrees to use commerciallyreasonable efforts to realize any applicable insurance proceeds or amountsrecoverable under such contractual indemnities; provided, however,that the costs and expenses (including, without limitation, court costs andreasonable attorneys’ fees) of the OSG MLP Group in connection with suchefforts shall be promptly reimbursed by OSG in advance of any determination ofwhether such insurance proceeds or other amounts will be recoverable.

###  

ARTICLE VII

 

Trade Name License

 

## SECTION 7.01.  Grant of Trade Name License.  OSG hereby grants to the OSG MLP Group alimited, royalty-free, non-exclusive, non-transferable license to use the name “OSG”and associated logo solely in connection with any Restricted Business carriedon by any OSG MLP Group Member.  OSG MLPon behalf of itself and the OSG MLP Entities hereby acknowledges that OSG ownsall rights, title and interest in, to and under the name “OSG”, the associatedlogo and the goodwill symbolized by and connected with the use thereof.

##  

ARTICLE VIII

 

Miscellaneous

 

## SECTION 8.01.  Choice of Law; Submission to Jurisdiction.  This Agreement shall be subject to andgoverned by the laws of the State of New York, without regard to anyconflicts-of-law rule or principle that might refer the construction orinterpretation of this Agreement to the laws of another jurisdiction.  Each Party hereby submits to the jurisdictionof the state and Federal courts located in the State of New York and to venuein New York, New York.

##  

## SECTION 8.02.  Notice.  All notices or other communications requiredor permitted to be given hereunder shall be in writing and shall be deliveredby hand or sent by facsimile or sent, postage prepaid, by registered, certifiedor express mail or overnight courier service and shall be deemed given when sodelivered by hand or facsimile, or if mailed, three days after mailing (onebusiness day in the case of express mail or overnight courier service) to theParties at the following addresses (or at such other address for a Party asshall be specified by like notice):

##  

### 16

### 

### (a)  if to OSG:

 

Overseas Shipping Group, Inc.

666 Third Avenue

New York, NY 10017

Attention:  Legal Department

Facsimile:  (212) 251-1180

 

### (b)  if to OSG MLP GeneralPartner or OSG MLP:

###  

In care of OSG America LLC

Two Harbour Place

302 Knights Run Avenue

Suite 1200

Tampa, FL 33602

Attention:  President

Facsimile:  (813) 221-2769

 

## SECTION 8.03.  Entire Agreement.  This Agreement constitutes the entireagreement of the Parties relating to the matters contained herein, supersedingall prior contracts or agreements, whether oral or written, relating to thematters contained herein.

##  

## SECTION 8.04.  Termination.  The provisions of Articles II, IV(except with respect to Option Assets), V and VII of this Agreement (but notless than all of such Articles II and V) may be terminated by (a) OSG,with respect to all OSG Entities, upon notice to the other Parties upon aChange of Control of OSG and (b) OSG MLP General Partner, with respect tothe OSG MLP Group, upon notice to the other Parties upon a Change of Control ofOSG MLP General Partner.

##  

## SECTION 8.05.  Waiver; Effect of Waiver or Consent.  Any Party hereto may (a) extend the timefor the performance of any obligation or other act of any other Party hereto or(b) waive compliance with any agreement or condition contained herein.  Except as otherwise specifically providedherein, any such extension or waiver shall be valid only if set forth in awritten instrument duly executed by the Party or Parties to be bound thereby; provided,however, that OSG MLP may not, without the prior approval of theConflicts Committee, agree to any extension or waiver of this Agreement that,in the reasonable discretion of OSG MLP General Partner, will adversely affect theholders of common units of OSG MLP.  Nowaiver or consent, express or implied, by any Party of or to any breach ordefault by any Person in the performance by such Person of its obligationshereunder shall be deemed or construed to be a waiver or consent of or to anyother breach or default in the performance by such Person of the same or anyother obligations of such Person hereunder. Failure on the part of a Party to complain of any act of any Person orto declare any Person in default, irrespective of how long such failurecontinues, shall not constitute a waiver by such Party of its rights hereunderuntil the applicable statute of limitations period has run.

##  

## SECTION 8.06.  Amendment or Modification.  This Agreement may be amended or modifiedfrom time to time only by the written agreement of all the Parties hereto; provided,however, that OSG MLP may not, without the prior approval of the

##  

## 17

## 

##  

## Conflicts Committee, agree to any amendment or modification of thisAgreement that, in the reasonable discretion of OSG MLP General Partner, willadversely affect the holders of common units of OSG MLP.

##  

## SECTION 8.07.  Assignment.  No Party shall have the right to assign itsrights or obligations under this Agreement without the consent of the other Partieshereto; provided, however, that OSG may make such an assignmentin the event that there is a Change of Control in respect of OSG.

##  

## SECTION 8.08.  Counterparts.  This Agreement may be executed in one or morecounterparts, all of which shall be considered one and the same agreement, andshall become effective when one or more such counterparts have been signed byeach of the Parties and delivered to the other Parties.

##  

## SECTION 8.09.  Severability.  If any provision of this Agreement (or anyportion thereof) or the application of any such provision (or any portionthereof) to any Person or circumstance shall be held invalid, illegal orunenforceable in any respect by a court of competent jurisdiction, suchinvalidity, illegality or unenforceability shall not affect any other provisionhereof (or the remaining portion thereof) or the application of such provisionto any other Persons or circumstances.

##  

## SECTION 8.10.  Gender, Articles, Sections and Schedules.  Whenever the context requires, the gender ofall words used in this Agreement shall include the masculine, feminine andneuter, and the number of all words shall include the singular and plural.  When a reference is made in this Agreement toan Article, Section or Schedule, such reference shall be to an Article orSection of, or Schedule to, this Agreement unless otherwise indicated.

##  

## SECTION 8.11.  Further Assurances.  In connection with this Agreement and alltransactions contemplated by this Agreement, each signatory party hereto agreesto execute and deliver such additional documents and instruments and to performsuch additional acts as may be necessary or appropriate to effectuate, carryout and perform all of the terms, provisions and conditions of this Agreementand all such transactions.

##  

## SECTION 8.12.  Withholding or Granting of Consent.  Each Party may, with respect to any consentor approval that it is entitled to grant pursuant to this Agreement, grant orwithhold such consent or approval in its sole and uncontrolled discretion, withor without cause, and subject to such conditions as it shall deem appropriate.

##  

## SECTION 8.13.  Laws and Regulations.  Notwithstanding any provision of this Agreementto the contrary, no Party to this Agreement shall be required to take any act,or fail to take any act, under this Agreement if the effect thereof would be tocause such Party to be in violation of any applicable law, statute, rule orregulation.

##  

## SECTION 8.14.  Negotiation of Rights of OSG, LimitedPartners, Assignees, and Third Parties. The provisions of this Agreement are enforceable solely by the Partiesto this Agreement, and no shareholder of OSG and no limited partner,

##  

## 18

## 

##  

## member, assignee or other Person of OSG MLP shall have the right,separate and apart from OSG or OSG MLP to enforce any provision of thisAgreement or to compel any Party to this Agreement to comply with the terms ofthis Agreement.

##  

## SECTION 8.15.  No Recourse Against Officers or Directors.  For the avoidance of doubt, the provisions ofthis Agreement shall not give rise to any right of recourse against any officeror director of any OSG Entity or any OSG MLP Entity.

##  

[Signature Page follows]

 

19

----

 

IN WITNESS WHEREOF, the Partieshave executed this Omnibus Agreement on, and effective as of, the Closing Date.

 
|   | OVERSEAS  SHIPHOLDING GROUP, INC., |
|--------|------------------------------------|
|   |                               |
|   | by                                 |
|   |  /s/ Mats Berglund            |
|   | Name: Mats Berglund                |
|   | Title: Senior Vice President       |
|        |                                    |  |  |  |

 

 
|   | OSG AMERICA  LLC,              |
|--------|--------------------------------|
|   |                           |
|   | by                             |
|   |  /s/ Myles R. Itkin       |
|   | Name: Myles R. Itkin           |
|   | Title: Chief Financial Officer |
|        |                                |  |  |  |

 

 
|   | OSG AMERICA  L.P.,                                   |
|--------|------------------------------------------------------|
|   |                                                 |
|   | by  OSG AMERICA LLC, its general  partner, |
|   |                                                 |
|   | by                                                   |
|   |  /s/ Myles R. Itkin                             |
|   | Name: Myles R. Itkin                                 |
|   | Title: Chief Financial Officer                       |
|        |                                                      |  |  |  |  |

 

----