**Exhibit 3.4**

 

EXECUTION COPY

 

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

 

OF

 

OSG AMERICA LLC

 

Dated as of November 15, 2007

 

 

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TABLE OF CONTENTS

 
| ** **            | ** **                                                                     | **Page** |
|-----------------------|--------------------------------------------------------------------------------|----------|
|                  |                                                                           |     |
| ARTICLE I             |
|                  |                                                                           |     |
| Definitions           |
|                  |
| SECTION  1.01.        | Defined Terms                                                                  | 1        |
| SECTION  1.02.        | Usage Generally; Interpretation                                                | 4        |
|                  |                                                                           |     |
| ARTICLE II            |
|                  |                                                                           |     |
| Organization          |
|                  |                                                                           |     |
| SECTION  2.01.        | Formation                                                                      | 4        |
| SECTION  2.02.        | Name                                                                           | 4        |
| SECTION  2.03.        | Purposes                                                                       | 4        |
| SECTION  2.04.        | Registered Office                                                              | 5        |
| SECTION  2.05.        | Registered Agent                                                               | 5        |
|                  |                                                                           |     |
| ARTICLE III           |
|                  |                                                                           |     |
| Membership            |
|                  |                                                                           |     |
| SECTION 3.01.         | Member                                                                         | 5        |
| SECTION  3.02.        | Admission of Members                                                           | 5        |
| SECTION  3.03.        | LLC Certificate; Transfer of Ownership Interest; Pledge of Ownership  Interest | 5        |
| SECTION  3.04.        | Treatment of Limited Liability Company Interests as Securities                 | 6        |
|                  |                                                                           |     |
| ARTICLE IV            |
|                  |                                                                           |     |
| Capital Contributions |
|                  |                                                                           |     |
| SECTION  4.01.        | Initial Capital Contributions                                                  | 6        |
| SECTION  4.02.        | Additional Capital Contributions                                               | 6        |
|                  |                                                                           |     |
| ARTICLE V             |
|                  |                                                                           |     |
| Management            |
|                  |                                                                           |     |
| SECTION  5.01.        | Board of Directors                                                             | 7        |
| SECTION  5.02.        | Number of Directors                                                            | 7        |

 

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| SECTION  5.03.                                              | Qualification                            | 7      |
|-------------------------------------------------------------|------------------------------------------|--------|
| SECTION  5.04.                                              | Appointment of Directors                 | 7      |
| SECTION  5.05.                                              | Resignation                              | 7      |
| SECTION  5.06.                                              | Meetings                                 | 7      |
| SECTION  5.07.                                              | Place of Meetings                        | 8      |
| SECTION  5.08.                                              | Telephonic Meetings                      | 8      |
| SECTION  5.09.                                              | Notice of Meetings; Waivers              | 8      |
| SECTION  5.10.                                              | Quorum; Board Action                     | 8      |
| SECTION  5.11.                                              | Voting Power                             | 9      |
| SECTION  5.12.                                              | Written Consent                          | 9      |
| SECTION  5.13.                                              | Committees                               | 9      |
| SECTION  5.14.                                              | Delegation of Authority and Duties       | 10     |
| SECTION  5.15.                                              | Compensation of Directors and Officers   | 11     |
| SECTION  5.16.                                              | Actions Required by Member               | 11     |
|                                                        |                                     |   |
| ARTICLE VI                                                  |
|                                                        |                                     |   |
| Exculpation and Indemnification                             |
|                                                        |                                     |   |
| SECTION  6.01.                                              | Indemnification                          | 13     |
| SECTION  6.02.                                              | Liability of Indemnitees                 | 15     |
|                                                        |                                     |   |
| ARTICLE VII                                                 |
|                                                        |                                     |   |
| Distributions                                               |
|                                                        |                                     |   |
| SECTION  7.01.                                              | Distributions/Available Cash             | 15     |
|                                                        |                                     |   |
| ARTICLE VIII                                                |
|                                                        |                                     |   |
| Books and Records; Fiscal Year; Bank  Accounts; Tax Matters |
|                                                        |                                     |   |
| SECTION  8.01.                                              | Books and Records                        | 16     |
| SECTION  8.02.                                              | Fiscal Year                              | 16     |
| SECTION  8.03.                                              | Bank Accounts                            | 16     |
| SECTION  8.04.                                              | Tax Matters                              | 16     |
|                                                        |                                     |   |
| ARTICLE IX                                                  |
|                                                        |                                     |   |
| Dissolution and Liquidation.                                |
|                                                        |                                     |   |
| SECTION  9.01.                                              | Dissolution                              | 16     |
| SECTION  9.02.                                              | Winding Up                               | 16     |
| SECTION  9.03.                                              | Cancellation of Certificate of Formation | 17     |

 

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| ARTICLE X       |
|-----------------|
|            |   |   |
| Miscellaneous   |
|            |   |   |
| SECTION  10.01. | Entire Agreement | 17 |
| SECTION  10.02. | Governing Law | 17 |
| SECTION  10.03. | Headings | 17 |
| SECTION  10.04. | Severability | 17 |
| SECTION  10.05. | Third Party Beneficiary | 17 |
| SECTION  10.06. | Amendments; Waiver | 17 |
|                 |  |  |  |  |

 

Exhibits:

 

EXHIBIT1: LLC Certificate

 

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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF OSG AMERICALLC

 

AMENDED AND RESTATED LIMITED LIABILITYCOMPANY AGREEMENT, dated as of November 15, 2007, adopted by OSG BULKSHIPS, INC. as the sole member (“Bulk Ships”), of OSG AMERICA LLC (the “Company”).

 

RECITALS

 

WHEREAS theCompany was formed as a Delaware limited liability company on May 14, 2007;

 

WHEREAS theLimited Liability Company Agreement of the Company was executed effective May14, 2007 (the “Original Limited Liability Company Agreement”); and

 

WHEREAS thesole Member of the Company deems it advisable to amend and restate the OriginalLimited Liability Company Agreement in its entirety as set forth herein.

 

NOW,THEREFORE, in consideration of the foregoing and the respective covenants andagreements contained herein and for other good and valuable consideration, thereceipt and sufficiency of which is hereby acknowledged, Bulk Ships, as thesole Member of the Company, hereby amends and restates the Original LimitedLiability Company Agreement in its entirety as follows:

 

ARTICLE I

 

Definitions

 

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

##  

“Act”means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101,et seq., as amended, supplemented or restated from time to time, and anysuccessor to such statute.

 

“Affiliate”means, with respect to any Person, any other Person that directly or indirectlythrough one or more intermediaries controls, is controlled by or is undercommon control with, the Person in question. As used in the foregoingdefinition, the term “Control” means the possession, direct or indirect, of thepower to direct or cause the direction of the management and policies of aPerson, whether through ownership of voting securities, by contract orotherwise.

 

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“Agreement”means this Amended and Restated Limited Liability Company Agreement, as it maybe further amended, modified, supplemented or restated from to time inaccordance with its terms.

 

“AuditCommittee” shall have the meaning set forth in Section 5.13(b) of thisAgreement.

 

“Board”shall have the meaning set forth in Section 5.01 of this Agreement.

 

“BoardMeeting” shall have the meaning set forth in Section 5.07 of thisAgreement.

 

“Certificateof Formation” means the Certificate of Formation of OSG America LLC filedon May 14, 2007 pursuant to Section 18-201 of the Act, as amended orrestated from time to time.

 

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

 

“Committee”shall have the meaning set forth in Section 5.13(a) of this Agreement.

 

“CommitteeMeeting” shall have the meaning set forth in Section 5.07 of thisAgreement.

 

“CommitteeMember” shall have the meaning set forth in Section 5.13(a) of thisAgreement.

 

“CommonUnits” means a Partnership Security representing a fractional part of thelimited partnership interests of all limited partners of the Partnership.

 

“ConflictsCommittee” shall have the meaning set forth in Section 5.13(c) of thisAgreement.

 

“CorporateGovernance Committee” shall have the meaning set forth in Section 5.13(d)of this Agreement.

 

“Directors”means the members of the Board.

 

“DissolutionEvent” shall have the meaning set forth in Section 9.01 of thisAgreement.

 

“GroupMember” means a member of the Partnership Group.

 

“IncentiveDistribution Right” means a non-voting limited partnership interest in thePartnership issued to the Company.

 

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“IncentivePlan” means any plan or arrangement pursuant to which the Company maycompensate its Directors, Officers, employees, consultants, or serviceproviders.

 

“Indemnitee”means (a) any Person who is or was a Member, (b) any Person who is orwas an Affiliate of any Member, (c) any Person who is or was a Director orOfficer, or a fiduciary or trustee, of the Company, (d) any Person who isor was a member, shareholder, manager, partner, director, officer, fiduciary ortrustee of any Member or an Affiliate of any Member, (e) any Person who isor was serving at the request of the Company, any Member or any Affiliate ofany Member as a member, shareholder, manager, partner, director, officer, fiduciaryor trustee of another Person; provided that such Person shall not be anIndemnitee by reason of providing, on a fee-for-services basis, trustee,fiduciary or custodial services, and (f) any Person the Company designatesas an “Indemnitee” for purposes of this Agreement.

 

“IndependentDirector” shall have the meaning set forth in Section 5.13(b) of thisAgreement.

 

“LLCCertificate” shall have the meaning set forth in Section 3.03(a) ofthis Agreement.

 

“Member”means Bulk Ships and any Person who, at the time of reference thereto, has beenadmitted to the Company as a Member in accordance with this Agreement,including any Transferee, and shall have the same meaning as the term “Member”under the Act, but shall not include any Person who has ceased to be a Memberof the Company.

 

“Officers”shall have the meaning set forth in Section 5.14(a) of this Agreement.

 

“OriginalLimited Liability Company Agreement” shall have the meaning set forth inthe Recitals.

 

“Partnership”means OSG America L.P., a Delaware limited partnership.

 

“PartnershipAgreement” means the Amended and Restated Agreement of Limited Partnershipof the Partnership, dated as of November 15, 2007, as it may be furtheramended, modified, supplemented or restated, from time to time in accordancewith its terms, or any successor agreement.

 

“PartnershipGroup” means the Partnership and its subsidiaries.

 

“PartnershipSecurity” means any class or series of equity interest in the Partnership(but excluding any options, rights, warrants and appreciation rights relatingto an equity interest in the Partnership).

 

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“Person”means a natural person, corporation, partnership, joint venture, trust, estate,unincorporated association, limited liability company, or any other juridicalentity.

 

“Transferee”shall have the meaning set forth in Section 3.03(b) of this Agreement.

 

“Underwriters”means each Person named as an underwriter in the Underwriting Agreement.

 

“UnderwritingAgreement” means the Underwriting Agreement to be executed among, interalia, the Underwriters, the Partnership and the Company, providing forthe purchase of limited partnership interests in the Partnership by theUnderwriters.

 

“Waiver”shall have the meaning set forth in Section 10.06 of this Agreement.

 

## SECTION 1.02. UsageGenerally; Interpretation. Whenever the context may require, any pronounincludes the corresponding masculine, feminine and neuter forms. Words in thesingular or the plural include the plural or the singular, as the case may be. Theuse of the word “or” is not exclusive. All references herein to Articles,Sections, Subsections, recitals, paragraphs, Exhibits and Schedules shall bedeemed to be references to Articles, Sections, Subsections, recitals,paragraphs, Exhibits and Schedules of this Agreement unless the contextotherwise requires. The words “include”, “includes” and “including” shall be deemedto be followed by the phrase “without limitation”. The words “hereof”, “herein”and “hereunder” and words of similar import when used in this Agreement referto this Agreement as a whole and not to any particular provision of thisAgreement. Unless otherwise expressly provided herein, any statute or lawdefined or referred to herein means such statute or law as from time to timeamended, modified or supplemented, including by succession of comparablesuccessor statutes or laws.

##  

ARTICLE II

 

Organization

 

## SECTION 2.01. Formation.The Company was formed on May 14, 2007 as a Delaware limited liability companyby the filing of the Certificate of Formation pursuant to the provisions of theAct with the Secretary of State of the State of Delaware.

##  

## SECTION 2.02. Name.The name of the Company is “OSG America LLC”.

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## SECTION 2.03. Purposes.The purposes of the Company are to act as the general partner of the Partnershipas described in the Partnership Agreement and to engage in any lawful businessor activity ancillary or related thereto. The Company shall

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## possess and may exercise all the powers and privileges granted by the Act,by any other law or by this Agreement, together with any powers incidentalthereto, including such powers and privileges as are necessary or convenient tothe conduct, promotion or attainment of the business, purposes or activities ofthe Company.

##  

## SECTION 2.04. RegisteredOffice. The registered office of the Company in the State of Delaware isc/o The Corporation Trust Company, 1209 Orange Street, Wilmington, County ofNew Castle, Delaware 19801. At any time, the Board may designate anotherregistered office.

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## SECTION 2.05. RegisteredAgent. The name and address of the registered agent of the Company forservice of process on the Company in the State of Delaware is The CorporationTrust Company, 1209 Orange Street, Wilmington, County of New Castle,Delaware 19801. At any time, the Board may designate another registered agent.

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ARTICLE III

 

Membership

 

## SECTION 3.01. Member.The name and address of the sole Member of the Company is:

##  

OSG Bulk Ships, Inc.

666 Third Avenue

5th Floor

New York, NY 10017

Attention:  Senior Vice Presidentand Treasurer

 

## SECTION 3.02. Admissionof Members. Except as expressly permitted by this Agreement, no Personshall be admitted as a member of the Company without the consent of the Member.

##  

## SECTION 3.03. LLCCertificate; Transfer of Ownership Interest; Pledge of Ownership Interest. (a)  The Member’s ownership of its limitedliability company interest in the Company shall be evidenced by a certificateof limited liability company interest (“LLC Certificate”) substantiallyin the form attached hereto as Exhibit 1.

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### (b)  Subject to the provisions of Section 3.03(c)of this Agreement, upon the endorsement by the Member on such LLC Certificate(or on a separate transfer power) in favor of a third party (a “Transferee”)and the delivery of such LLC Certificate (and such separate power, ifapplicable) to such Transferee, such Member shall be deemed to have assignedand transferred all its right, title and interest in the Company and in thisAgreement to such Transferee to the extent evidenced by such LLC Certificate andall references in this Agreement to such Member shall be deemed to refer tosuch Transferee, in each case effective as of the date of delivery of suchCertificate to such LLC Transferee. No transfer of any interest in the Company shallbe made if such

 

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### transfer would (i) violate the then applicable federal or statesecurities laws or rules and regulations of the Commission, any statesecurities commission or any other governmental authority with jurisdictionover such transfer, (ii) terminate the existence of qualification of theCompany or the Partnership under the laws of the jurisdiction of its formation,(iii) cause the Company or the Partnership to be treated as an associationtaxable as a corporation or otherwise to be taxed as an entity for federalincome tax purposes (to the extent not already so treated or taxed), (iv) causethe Company to become a Non-U.S. Citizen (as such term is defined in the PartnershipAgreement), or (v) result in the vessels owned by the Partnership losing theireligibility to engage in the coastwise trade of the United States. The Member’sright, title and interest in the Company shall not be transferred other than asprovided in this Section 3.03(b).

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### (c)  The pledge of, or granting of a securityinterest, lien or other encumbrance in or against, any or all of the limitedliability company interest of the Member in the Company shall not cause theMember to cease to be a member of the Company until the secured party shallhave lawfully exercised its remedies under the security agreement and completedthe endorsement in favor of a Transferee. Until the exercise of such remedies,the secured party shall not have the power to exercise any rights or powers of theMember.

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## SECTION 3.04. Treatmentof Limited Liability Company Interests as Securities. Limited liabilitycompany interests in the Company shall be securities governed by the UniformCommercial Code — Investment Securities of the State of Delaware and will beevidenced by certificates registered in the Company’s books that state thatthey are governed by the Uniform Commercial Code — Investment Securities of theState of Delaware. All certificates representing limited liability companyinterests in the Company shall bear the following legend:  “This certificate evidences a limitedliability company interest in the Company and shall be a security for thepurposes of the Uniform Commercial Code — Investment Securities of the State ofDelaware.”  Certificates representinglimited liability company interests in the Company shall be signed by a Directorand shall be in such form as specified by the Board.

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ARTICLE IV

 

Capital Contributions

 

## SECTION 4.01. InitialCapital Contributions. Bulk Ships has made an initial capital contributionof U.S. $100 to the Company and in consideration thereof, an LLC Certificatehas been issued in favor of Bulk Ships as the sole Member of the Company inaccordance with Section 3.03 of this Agreement.

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## SECTION 4.02. AdditionalCapital Contributions. The Member shall have no obligation to make anyadditional capital contribution to the Company, but may do so from time totime.

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ARTICLE V

 

Management

 

## SECTION 5.01. Boardof Directors. The business and affairs of the Company shall be managed byor under the direction of, a board of directors (the “Board”) which mayexercise all such powers of the Company as may be vested in a manager pursuantto the Act and do all such lawful acts and things as are not by the Act or thisAgreement, conferred upon or reserved for the Member.

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## SECTION 5.02. Numberof Directors. The number of Directors shall not at any time be more than ninenor less than three and subject to these limitations the number of Directors tohold office shall be fixed from time to time by the Board.

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## SECTION 5.03. Qualification.No more than a minority of the Directors necessary to constitute a quorum shallbe persons other than citizens of the United States.

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## SECTION 5.04. Appointmentof Directors. (a)    The Member may appoint such individuals to beDirectors as it shall choose in its sole discretion, remove and replace anyDirector it appoints, with or without cause, at any time and for any reason,and fill any positions created on the Board as a result of an increase in thesize of the Board or vacancies occurring on the Board due to the death,resignation, retirement, disqualification or removal from office of anyDirector; provided, however, that each Director shall be anatural person.

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### (b)  Each Director shall be appointed to serveuntil his successor shall be appointed and shall qualify or until his earlierresignation or removal.

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### (c)  As of the date of this Agreement, the Directorsare Morten Arntzen, Jonathan P. Whitworth, Myles R. Itkin, Robert E.Johnston, Steven T. Benz, James G. Dolphin and Kathleen C.Haines who are deemed to have been appointed pursuant to Section 5.04(a) ofthis Agreement.

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### (d)  The Member shall designate one Director tohold the title of Chairman of the Board. The person designated as Chairman shallbe a citizen of the United States.

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## SECTION 5.05. Resignation.A Director or Committee Member may resign at any time by giving written noticeto the Member and the Company. Unless otherwise specified in such notice, theresignation shall take effect upon receipt of such notice by the Member. Theacceptance of a resignation shall not be necessary to make it effective.

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## SECTION 5.06. Meetings.A special Board Meeting may be called by a majority of the Directors or by theChief Executive Officer. Regular Board Meetings shall be held from time to timeas shall be determined by the Board. Committee Meetings may be called by amember thereof, or by the Board or by the Chief Executive Officer.

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## SECTION 5.07. Placeof Meetings. Unless otherwise agreed by a majority of the Directors orCommittee Members, as the case may be, meetings of the Board (each, a “BoardMeeting”) and any Committees thereof (each, a “Committee Meeting”),shall be held at the principal office of the Company.

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## SECTION 5.08. TelephonicMeetings. Board Meetings and Committee Meetings may be held through the useof conference telephone or similar communications equipment so long as allPersons participating in such meeting can hear one another at the time of suchmeeting. Participation in a Board Meeting or Committee Meeting via conferencetelephone or similar communications equipment in accordance with the precedingsentence shall constitute presence in person at such meeting. A Board Meetingor Committee Meeting, as the case may be, shall be deemed held at the placewhere such call or communication originated.

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## SECTION 5.09. Noticeof Meetings; Waivers. (a)  Writtennotice of each Board Meeting and Committee Meeting shall state the place, dateand hour of such meeting, and the general nature of the business to betransacted. Notice of each regular Board Meeting and each Committee Meetingshall be given not fewer than 10 days before the date thereof. Notice ofeach special Board Meeting shall be given not fewer than three days before thedate thereof. For the purposes of this Section 5.09(a), notices may begiven to a Director by courier service, mail, email, telegraph, cable, telex orfacsimile at his residence or business address and shall be deemed to be dulygiven or made upon receipt.

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### (b)  Notice of a Board Meeting or CommitteeMeeting need not be given to any Director or Committee Member, as the case maybe, who signs a waiver of notice, whether before or after such meeting. Theattendance of any Director at a Board Meeting or any Committee Member at aCommittee Meeting, as the case may be, in person, without protesting prior tothe conclusion of such Board Meeting or Committee Meeting, as the case may be,the lack of notice of such meeting, shall constitute a waiver of notice by suchDirector or Committee Member, as the case may be; provided, however,that such Director or Committee Member, as the case may be, has been given anadequate opportunity at such meeting to protest such lack of notice.

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## SECTION 5.10. Quorum;Board Action. A majority of the Directors then in office shall constitute aquorum at a Board Meeting for the transaction of any business. A majority ofthe Directors present at a Board Meeting may adjourn the Board Meeting, whetheror not a quorum is present. An adjournment may include notice of the date, hourand place that the Board shall reconvene. Notice of the adjournment (with thenew date, time and place) shall be given to all Directors who were absent atthe time of the adjournment and, unless such date, hour and place are announcedat the Board Meeting, to the other Directors. Except as otherwise expresslyprovided in this Agreement, the vote of a majority of the Directors present ata meeting at which a quorum is present shall be the act of the Board. The Boardshall keep a written record of its proceedings.

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## SECTION 5.11. VotingPower. Each Director or Committee Member, as the case may be, shall beentitled to one vote on all matters to be voted on by the Directors orCommittee Members, as the case may be.

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## SECTION 5.12. WrittenConsent. Any action required or permitted to be taken at any Board Meetingor Committee Meeting may be taken without a meeting if all Directors orCommittee Members, as applicable consent thereto in writing. Any such written consentshall be filed with the minutes of the proceedings of the Board or Committee,as applicable.

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## SECTION 5.13. Committees.(a)  The Board may, by resolution passedby a majority of the whole Board, designate two or more of their number (each,a “Committee Member”) to constitute committees (each, a “Committee”)of the Board to hold office at the pleasure of the Board. Any person ceasing tobe a Director shall ipso facto cease to be a Committee Member of each Committeeof which they were a Committee Member. Each Committee Member shall serve untilsuch Committee Member resigns or is otherwise removed in accordance with theprovisions of this Agreement. A majority of the Committee Members of aCommittee shall constitute a quorum. The affirmative vote of a majority of theCommittee Members present at any meeting at which a quorum is present shall bethe act of such Committee. The Committee Members of a Committee shall act onlyas a Committee, and the individual Committee Members thereof shall not have anypowers as such. A Committee may act on such matters as authorized by the Board.

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### (b)  The Board shall have an audit committee (the “AuditCommittee”) comprised of Directors who meet the independence standardsrequired of directors who serve on an audit committee of a board of directorsestablished by the Securities Exchange Act of 1934, as amended, and the rulesand regulations of the Commission thereunder and by the New York Stock Exchangeor any National Securities Exchange on which the Common Units are listed oradmitted for trading. The Audit Committee shall establish a written auditcommittee charter in accordance with the rules and regulations of the Commissionand the New York Stock Exchange or any National Securities Exchange on whichthe Common Units are listed or admitted for trading. Each member of the AuditCommittee shall satisfy the rules and regulations of the Commission and the NewYork Stock Exchange or any National Securities Exchange on which the CommonUnits are listed or admitted for trading pertaining to qualification forservice on an audit committee. An “Independent Director” shall mean aDirector so satisfying such rules and regulations.

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### (c)  The Board shall have a conflicts committee comprisedof no fewer than two Directors (the “Conflicts Committee”); all membersof who shall be Independent Directors, but none of whom may be(i) security holders, officers or employees of the Company,(ii) officers, directors or employees of any Affiliate of the Company or(iii) holders of any ownership interest in the Partnership Group otherthan Common Units. The Conflicts Committee may review, and approve ordisapprove, transactions in which a potential conflict of interest exists orarises between the Company and any of its Affiliates (other than a Group Member),on the one hand, and the

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### Partnership, any Group Member or any Partner (as defined in thePartnership Agreement), on the other hand, all in accordance with theapplicable provisions of the Partnership Agreement. Any matter approved by theConflicts Committee in good faith in accordance with the provisions, andsubject to the limitations, of the Partnership Agreement, shall not be deemedto be a breach of the Partnership Agreement, this Agreement or of any fiduciaryor other duties owed by the Board or any Director to the Company or the Member.

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### (d)  The Board may have a corporate governancecommittee (the “Corporate Governance Committee”). The CorporateGovernance Committee shall be charged with such matters pertaining to corporategovernance matters, the compensation of Directors, Officers and other personnelof the Company, the review, approval and administration of any Incentive Plansput in place by the Company or the Partnership and such other related mattersas may be directed by the Board from time to time.

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## SECTION 5.14. Delegationof Authority and Duties. (a)  TheBoard may, from time to time as it deems advisable, appoint and elect (as wellas remove or replace at any time with or without cause for any reason) (i) aChief Executive Officer, (ii) a President, (iii) a Chief FinancialOfficer, (iv) a Secretary and (v) such other officer positionsassigned to individuals as it may elect (collectively, the “Officers”).Each Officer shall be a natural person. Any two or more offices may be held bythe same person. Designation of an Officer shall not of itself create anycontractual or employment rights. Officers must at all times be citizens of theUnited States. If so appointed by the Board, the Officers shall have theauthority and duties as may from time to time be assigned to them.

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### (b)  In addition, the Board may, from time to timeas it deems advisable, delegate to one or more natural persons (inclusive ofany Director) such authority and duties as the Board is granted under thisAgreement and not made subject to the approval of the Member by this Agreement,and the Board may assign in writing such titles to any such person as it deemsappropriate. Any delegation pursuant to this Section 5.14(b) may berevoked at any time by the Board, with or without cause for any reason.

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### (c)  Unless the Board decides otherwise, if thetitle of any person authorized to act on behalf of the Company under thisSection 5.14 is one commonly used for officers of a business corporationformed under the Delaware General Corporation Law, the assignment of such titleshall constitute the delegation to such person of the authority and duties thatare normally associated with that office, subject to any specific delegationof, or restriction on, authority and duties made pursuant to this Section 5.14.Any delegation or restriction pursuant to this Section 5.14(c) may berevoked at any time by the Board, with or without cause for any reason; provided,however, that the Board will not be entitled to revoke any restrictionrelating to the citizenship of any person as set out in this Section 5.14.

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### (d)  Unless authorized to do so by this Agreementor by the Board, no Director, Officer, agent or employee of the Company shallhave any power or authority to bind the Company in any way, to pledge itscredit, or to render it liable pecuniarily for

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### any purpose. However, the Company may act by an attorney-in-factauthorized by the Board.

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### (e)  Any Officer may resign at any time by givingwritten notice to the Board and the Company. Unless otherwise specified in suchnotice, the notice shall take effect upon receipt of such notice by the Company.The acceptance of a resignation shall not be necessary to make it effective.

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### (f)  The Officers, in the performance of theirduties as such, shall owe to the Company duties of loyalty of due care of thetype owed by the officers of a corporation to such corporation and itsequityholders under the laws of the State of Delaware.

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## SECTION 5.15. Compensationof Directors and Officers. (a)  Membersof the Board shall receive such compensation for their services to the Companyas the Board or any Committee appointed by the Board for such purpose shalldetermine. In addition, the Board or any Committee appointed by the Board forsuch purpose may, from time to time, authorize the reimbursement by the Companyof such expenses (including travel expenses) as may be incurred by Directors inthe performance of their duties hereunder (including attendance at meetings ofthe Board).

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### (b)  The Officers shall serve with or without suchcompensation for their services to the Company as the Board or any Committeeappointed by the Board for such purpose thereof shall determine.

###  

## SECTION 5.16. ActionsRequired by Member. (a)    Notwithstanding anything herein to thecontrary, the Board will not take any action without approval of the Memberwith respect to an extraordinary matter that would have, or would reasonably beexpected to have, a material effect, directly or indirectly, on the Member’sinterests in the Company. The type of extraordinary matter referred to in theprior sentence which requires approval of the Member shall include thefollowing: (i) dissolution or liquidation of the Company, the Partnershipor a material subsidiary of any such entity; (ii) commencement of anyaction relating to bankruptcy, insolvency or reorganization of the Company, thePartnership or a material subsidiary of any such entity; (iii) making orconsenting to a general assignment for the benefit of the creditors of theCompany, the Partnership or a material subsidiary of any such entity; (iv) amerger, consolidation, recapitalization or similar transaction involving theCompany, the Partnership or a material subsidiary of any such entity; (v) asale, exchange or other transfer not in the ordinary course of business of asubstantial portion of the assets of the Partnership or a material subsidiary,viewed in each case on a consolidated basis, in one or a series of relatedtransactions; (vi) a material amendment of the Partnership Agreement; and(vii) a material change in the amount of the quarterly distribution madeon the Common Units or the payment of a material extraordinary distribution bythe Partnership. An extraordinary matter will be deemed approved by the Memberif the Board receives a written, facsimile or electronic instruction evidencingsuch approval from the Member or if a majority of the Directors that are notIndependent Directors because of their affiliation with the Member approve suchmatter. To the fullest extent permitted by law, a Director, acting

##  

## 11

## 

##  

## as such, shall have no duty, responsibility or liability to the Memberwith respect to any action by the Board approved by the Member in accordancewith this Section 5.16.

##  

### (b)  Notwithstanding anything herein to thecontrary, the Member shall have exclusive authority over the business andaffairs of the Company that do not relate to management and control of the Partnership.The matters referred to in the immediately preceding sentence where the Membershall have exclusive authority shall include but not be limited to (i) theamount and timing of distributions paid by the Company, (ii) the issuance orrepurchase of any equity interests in the Company, (iii) the prosecution,settlement or management of any claim made directly against the Company, (iv)whether to sell, convey, transfer or pledge any asset of the Company, (v)whether to amend, modify or waive any rights relating to the assets of theCompany (including the decision to amend or forego distributions by thePartnership in respect of the Incentive Distribution Rights), and (vi) whetherto enter into any agreement to incur an obligation of the Company other than anagreement entered into for and on behalf of the Partnership for which theCompany is liable exclusively by virtue of its capacity as general partner of thePartnership.

###  

### (c)  Without limiting the authority granted bySection 5.16(b) of this Agreement, the Member shall have exclusiveauthority to cause the Company to exercise the rights of the Company, asgeneral partner of the Partnership, provided in the following provisions of thePartnership Agreement:

###  

#### (i)         Section 2.04 (“Purposeand Business”), with respect to decisions to perform all acts determined to benecessary or appropriate to carry out the purposes and conduct the business ofthe Partnership;

####  

#### (ii)        Sections 4.06 (a)and (b) (“Transfer of the General Partner’s General Partner Interest”) andSection 4.07 (“Transfer of Incentive Distribution Rights”), solely withrespect to the decision by the Company to transfer its general partner interestin the Partnership or its Incentive Distribution Rights;

####  

#### (iii)       Section 5.02 (b)(“Initial Unit Issuances; General Partner Pre-emptive Rights”), solely withrespect to the decision to make additional capital contributions to thePartnership;

####  

#### (iv)       Section 5.08 (“LimitedPreemptive Right”);

####  

#### (v)        Section 5.11 (“Issuanceof Class B Units in Connection with Reset of Incentive Distribution Rights”)with respect to any decision by the Company thereunder as a holder of IncentiveDistribution Rights or Class B Units;

####  

#### (vi)       Section 6.07 (“SpecialProvisions Relating to the Holders of Subordinated Units and Class B Units”)with respect to any decision by the Company thereunder as a holder ofSubordinated Units or Class B Units;

####  

#### (vii)      Section 7.05(d)(relating to the right of the Company and its Affiliates to purchasePartnership Securities and exercise rights related thereto)

####  

#### 12

#### 

####  

#### and Section7.11 (“Purchase and Sale of Partnership Securities”), solely with respect todecisions by the Company to purchase or otherwise acquire and sell PartnershipSecurities for its own account;

####  

#### (viii)     Section 7.06 (“Loansfrom the General Partner; Loans or Contributions from the Partnership or GroupMembers”), solely with respect to the decision by the Company to lend funds toa Group Member, subject to the provisions of Section 7.09 of the PartnershipAgreement;

####  

#### (ix)       Section 7.07 (“Indemnification”),solely with respect to any decision by the Company to exercise its rights as an“Indemnitee;”

####  

#### (x)        Section 7.12 (“RegistrationRights of the General Partner and its Affiliates”), solely with respect to anydecision to exercise registration rights;

####  

#### (xi)       Section 11.01 (“Withdrawalof the General Partner”), solely with respect to the decision by the Company towithdraw as general partner of the Partnership and to giving notices requiredthereunder;

####  

#### (xii)      Section 11.03 (a)and (b) (“Interest of Departing General Partner and Successor General Partner”);and

####  

#### (xiii)     Section 15.01 (“Rightto Acquire Limited Partner Interests”).

####  

ARTICLE VI

 

Exculpation and Indemnification

 

## SECTION 6.01. Indemnification.(a)  To the fullest extent permitted bylaw but subject to the limitations expressly provided in this Agreement, allIndemnitees shall be indemnified and held harmless by the Company from andagainst any and all losses, claims, damages, liabilities, joint or several,expenses (including legal fees and expenses), judgments, fines, penalties,interest, settlements or other amounts arising from any and all claims,demands, actions, suits or proceedings, whether civil, criminal, administrativeor investigative, in which any Indemnitee may be involved, or is threatened tobe involved, as a party or otherwise, by reason of its status as an Indemnitee;provided, however, that the Indemnitee shall not be indemnifiedand held harmless if there has been a final and non-appealable judgment enteredby a court of competent jurisdiction determining that, in respect of the matterfor which the Indemnitee is seeking indemnification pursuant to this Section 6.01,the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or,in the case of a criminal matter, acted with knowledge that the Indemnitee’sconduct was unlawful. Any indemnification pursuant to this Section 6.01shall be made only out of the assets of the Company, it being agreed that theMember shall not be personally liable for such indemnification and shall haveno obligation to contribute or loan any moneys or property to the Company toenable it to effectuate such indemnification.

##  

## 13

## 

##  

### (b)  To the fullest extent permitted by law,expenses (including legal fees and expenses) incurred by an Indemnitee who isindemnified pursuant to Section 6.01 in defending any claim, demand,action, suit or proceeding shall, from time to time, be advanced by the Companyprior to a determination that the Indemnitee is not entitled to be indemnifiedupon receipt by the Company of any undertaking by or on behalf of the Indemniteeto repay such amount if it shall be determined that the Indemnitee is notentitled to be indemnified as authorized in this Section 6.01.

###  

### (c)  The indemnification provided by this Section 6.01shall be in addition to any other rights to which an Indemnitee may be entitledunder any agreement, as a matter of law or otherwise, both as to actions in theIndemnitee’s capacity as an Indemnitee and as to actions in any other capacity(including any capacity under the Underwriting Agreement, and shall continue asto an Indemnitee who has ceased to serve in such capacity and shall inure tothe benefit of the heirs, successors, assigns and administrators of theIndemnitee.

###  

### (d)  The Company may purchase and maintain (orreimburse the Member or its Affiliates for the cost of) insurance, on behalf ofthe Indemnitees, the Company and its Affiliates and such other Persons as the Companyshall determine, against any liability that may be asserted against, or expensethat may be incurred by, such Person in connection with the Company’sactivities or such Person’s activities on behalf of the Company, regardless ofwhether the Company would have the power to indemnify such Person against suchliability under the provisions of this Agreement.

###  

### (e)  For purposes of this Section 6.01, theCompany shall be deemed to have requested an Indemnitee to serve as fiduciaryof an employee benefit plan whenever the performance by it of its duties to theCompany also imposes duties on, or otherwise involves services by, it to theplan or participants or beneficiaries of the plan; excise taxes assessed on anIndemnitee with respect to an employee benefit plan pursuant to applicable lawshall constitute “fines” within the meaning of Section 6.01(a); and actiontaken or omitted by it with respect to any employee benefit plan in theperformance of its duties for a purpose reasonably believed by it to be in theinterest of the participants and beneficiaries of the plan shall be deemed tobe for a purpose that is in the best interests of the Company.

###  

### (f)  In no event may an Indemnitee subject theMember to personal liability by reason of the indemnification provisions setforth in this Agreement.

###  

### (g)  An Indemnitee shall not be deniedindemnification in whole or in part under this Section 6.01 because theIndemnitee had an interest in the transaction with respect to which theindemnification applies if the transaction was otherwise permitted by the termsof this Agreement.

###  

### (h)  The provisions of this Section 6.01 arefor the benefit of the Indemnitees, their heirs, successors, assigns andadministrators and shall not be deemed to create any rights for the benefit ofany other Persons.

###  

### 14

### 

###  

### (i)  No amendment, modification or repeal of thisSection 6.01 or any provision hereof shall in any manner terminate, reduceor impair the right of any past, present or future Indemnitee to be indemnifiedby the Company, nor the obligations of the Company to indemnify any suchIndemnitee under and in accordance with the provisions of this Section 6.01as in effect immediately prior to such amendment, modification or repeal withrespect to claims arising from or relating to matters occurring, in whole or inpart, prior to such amendment, modification or repeal, regardless of when suchclaims may arise or be asserted.

###  

## SECTION 6.02. Liabilityof Indemnitees. (a)  No Indemniteeshall be personally liable for the debts, obligations and liabilities of theCompany, whether arising in contract, tort or otherwise.

##  

### (b)  Notwithstanding anything to the contrary setforth in this Agreement, no Indemnitee shall be liable for monetary damages tothe Company, the Member or any other Person who has acquired an interest in theCompany, for losses sustained or liabilities incurred as a result of any act oromission of an Indemnitee unless there has been a final and non-appealablejudgment entered by a court of competent jurisdiction determining that, inrespect of the matter in question, the Indemnitee acted in bad faith or engagedin fraud, willful misconduct or, in the case of a criminal matter, acted withknowledge that the Indemnitee’s conduct was criminal.

###  

### (c)  To the full extent that the Act permits thelimitation or elimination of liability of Directors, a Director shall not beliable to the Company or its Members for monetary damages for breach offiduciary duty as a Director. To the extent that, at law or in equity, anIndemnitee has duties (including fiduciary duties) and liabilities relatingthereto to the Company, such Indemnitee acting in connection with the Company’sbusiness or affairs shall not be liable to the Company or to the Member for itsgood faith reliance on the provisions of this Agreement.

###  

### (d)  Any amendment, modification or repeal of thisArticle VI or any provision hereof shall be prospective only and shall notin any way affect the limitations on the liability of the Indemnitees underthis Article VI as in effect immediately prior to such amendment,modification or repeal with respect to claims arising from or relating tomatters occurring, in whole or in part, prior to such amendment, modificationor repeal, regardless of when such claims may arise or be asserted.

###  

ARTICLE VII

 

Distributions

 

## SECTION 7.01. Distributions/AvailableCash. The Member shall in its sole discretion determine from time to timeto what extent (if any) the Company’s cash on hand exceeds the current andanticipated needs of the Company. To the extent any such excess exists, the Membermay make distributions to the Member, subject to the Act.

##  

## 15

## 

##  

ARTICLE VIII

 

Books and Records; Fiscal Year; Bank Accounts; Tax Matters

 

## SECTION 8.01. Booksand Records. The books and records of the Company shall, at the cost andexpense of the Company, be kept by the Company at the principal office of theCompany or at such other location as the Board may from time to time determine.

##  

## SECTION 8.02. FiscalYear. Unless otherwise determined by the Board, the Company’s books andrecords shall be kept on a December 31 calendar year basis and shall reflectall Company transactions and be appropriate and adequate for conducting theCompany’s affairs.

##  

## SECTION 8.03. BankAccounts. All funds of the Company will be deposited in its name in anaccount or accounts maintained with such bank or banks selected by the Board. Checksshall be drawn upon the Company account or accounts only for the purposes ofthe Company and may be signed by such persons as may be designated by theBoard.

##  

## SECTION 8.04. TaxMatters. Bulk Ships intends and acknowledges that, for so long as itremains the sole Member of the Company, the Company shall be disregarded as aseparate entity from Bulk Ships for U.S. Federal income tax purposes and BulkShips shall file such elections with the U.S. Federal tax authorities as may berequired to assure such tax status.

##  

ARTICLE IX

 

Dissolution and Liquidation.

 

## SECTION 9.01. Dissolution.The Company shall be dissolved and its affairs shall be wound up upon the firstto occur of any of the following events (each a “Dissolution Event” (a) thewritten consent of the Member to dissolve the Company, (b) the entry of adecree of judicial dissolution of the Company pursuant to the provisions of theAct, (c) the sale or other disposition of all or substantially all of theassets and properties of the Partnership and its Subsidiaries, or (d) thedissolution of the Partnership.

##  

## SECTION 9.02. WindingUp. On the occurrence of a Dissolution Event, the Member shall be theliquidator, or shall appoint a liquidator, to wind up the affairs of theCompany pursuant to this Agreement. The liquidator shall proceed diligently towind up the affairs of the Company and discharge the liabilities of theCompany, establish reserves, and sell, liquidate or distribute the assets ofthe Company in accordance with the Act. The costs of winding up the Companyshall be borne as a Company expense. In performing its duties, the liquidatoris authorized to sell, distribute, exchange or otherwise dispose of Companyassets in accordance with the Act in any reasonable manner that the liquidatorshall determine to be in the best interest of the Member.

##  

## 16

## 

##  

## SECTION 9.03. Cancellationof Certificate of Formation. Upon the completion of the winding up of the Companyas provided in Section 9.02 in connection with the liquidation of theCompany, the Company shall be terminated and the Certificate of Formation, aswell as all qualifications of the Company as a foreign limited liabilitycompany in jurisdictions other than the State of Delaware, shall be canceledand such other actions as may be necessary to terminate the Company shall betaken.

##  

ARTICLE X

 

Miscellaneous

 

## SECTION 10.01.Entire Agreement. This Agreement and the exhibits hereto constitute thecomplete and exclusive statement of the agreement regarding the operation ofthe Company and replaces and supersedes all prior agreements regarding theoperation of the Company.

##  

## SECTION 10.02.Governing Law. This Agreement shall be governed by, and construed underthe internal laws of the State of Delaware, all rights and remedies beinggoverned by such laws without regard to principles of conflict of law. ThisAgreement shall be construed in accordance with Section 18-1101 of the Act.

##  

## SECTION 10.03.Headings. All headings herein are inserted only for convenience and easeof reference and are not to be considered in the construction or interpretationof any provision of this Agreement.

##  

## SECTION 10.04.Severability. If any provision of this Agreement is held to be illegal,invalid or unenforceable under the present or future laws effective during theterm of this Agreement, such provision will be fully severable; this Agreementshall be construed and enforced as if such illegal, invalid or unenforceableprovision had never comprised a part of this Agreement; and the remainingprovisions of this Agreement shall remain in full force and effect and shallnot be affected by the illegal, invalid or unenforceable provision or by itsseverance from this Agreement.

##  

## SECTION 10.05.Third Party Beneficiary. This Agreement is made solely and specificallyfor the benefit of the Member and its successors and assigns and no otherPerson shall have any rights, interest or claims hereunder or be entitled toany benefits under or on account of this Agreement as a third party beneficiaryor otherwise; provided, however, that Article VI shallbenefit Indemnitees.

##  

## SECTION 10.06.Amendments; Waiver. Amendments to this Agreement may be made from timeto time; provided, however, that no amendment or modification ofthis Agreement or any provision hereof shall be valid or effective unless inwriting and signed by each and every Member. No consent to, or waiver,discharge or release (each, a “Waiver”) of, any provision of or breachunder this Agreement shall be valid or effective unless in writing and signedby the party giving such Waiver, and no specific Waiver shall constitute aWaiver with respect to any other provision or breach, whether or not of similarnature. Failure on the part of any party hereto to insist in any instance

##  

## 17

## 

##  

## upon strict, complete and timely performance by another party hereto ofany provision of or obligation under this Agreement shall not constitute aWaiver by such party of any of its rights under this Agreement or otherwise.

##  

[Signature Page Follows]

 

18

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IN WITNESS WHEREOF,the Member has duly executed this Amended and Restated Limited LiabilityCompany Agreement as of the date first set forth above.

 

 
|   | OSG BULK SHIPS, INC.,                        |
|--------|----------------------------------------------|
|   |
|   | by                                           |
|   |    /s/ Myles R. Itkin         |
|   | Name: Myles R. Itkin                         |
|   | Title: Senior Vice President & Treasurer |
|        |                                              |  |  |  |

 

 

[SignaturePage to Amended and Restated Limited Liability Company Agreement of OSG AmericaLLC]

 

----

 

EXHIBIT 1

 

CERTIFICATE OF LIMITED LIABILITY COMPANY INTEREST

 

OF

 

OSG AMERICA LLC

 

FORMED UNDER THE LAWS OF THE STATE OFDELAWARE

 

Certificate Number:

 

ThisCertificate of Limited Liability Company Interest (this “Certificate”) evidencesthe ownership by                           of      % of the limited liability companyinterests in OSG AMERICA LLC (the “Company”) subject to the Certificateof Formation and the Amended and Restated Limited Liability Company Agreementof the Company.

 

This Certificateevidences a limited liability company interest in the Company and shall be asecurity for the purposes of the Uniform Commercial Code—Investment Securitiesof the State of Delaware.

 

Witness,the signature of the Company.
| Dated: |             |   |   |
|--------|------------------|--------|--------|
|   |             |
|   | OSG AMERICA LLC, |
|   |
|   | by               |
|   |             |
|   | Name:            |
|   | Title:           |
|        |                  |        |        |  |  |  |

 

 

FOR VALUERECEIVED, the undersigned hereby sells, assigns and transfers unto                              all of its right, title and interest in the limited liability company ownershipinterests in OSG AMERICA LLC represented by this Certificate.

 
| Dated:          |   |   |
|-----------------|--------|--------|
|            |
|            |
|            | by     |
|            |   |   |
|            |   |   |
| In  Presence of |   |   |
|                 |        |        |  |  |  |  |

 

----