UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 17, 2015
ATWOOD OCEANICS, INC.
(Exact name of registrant as specified in its charter)
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Texas | 1-13167 | 74-1611874 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) |
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15011 Katy Freeway, Suite 800, Houston, Texas | 77094 |
(Address of principal executive offices) | (Zip Code) |
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Registrant’s telephone number, including area code: (281) 749-7800
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| N/A | |
| (Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report) | |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
Alpha Admiral Company, a subsidiary of Atwood Oceanics, Inc. (the “Company”), and Daewoo Shipbuilding & Marine Engineering Co., Ltd. (“DSME”) entered into Supplemental Agreement No. 4 dated 17 December 2015 to the Drillship Contract dated 27 September 2012 by and between Alpha Admiral Company and DSME (the “Admiral Supplemental Agreement”). The Admiral Supplemental Agreement provides for, among other things: (i) a delay in the delivery of the Atwood Admiral until September 30, 2017, (ii) a payment of $50 million by Alpha Admiral Company to DSME on December 31, 2015, and (ii) an extension of the remaining milestone payments of $93.9 million until the delivery date. This description of the Admiral Supplemental Agreement is a summary only and is qualified in its entirety by the full and complete terms of the Admiral Supplemental Agreement, which is attached as Exhibit 10.1 hereto
Alpha Archer Company, a subsidiary of the Company, and DSME entered into Supplemental Agreement No. 4 dated 17 December 2015 to Drillship Contract dated 24 June 2013 by and between Alpha Archer Company and DSME (the “Archer Supplemental Agreement’). The Archer Supplemental Agreement provides for, among other things: (i) a delay in the delivery of the Atwood Archer until June 30, 2018, (ii) a payment of $50 million by Alpha Archer Company to DSME on December 31, 2015, and (ii) an extension of the remaining milestone payments of $305 million until the delivery date. This description of the Archer Supplemental Agreement is a summary only and is qualified in its entirety by the full and complete terms of the Archer Supplemental Agreement, which is attached as Exhibit 10.2 hereto
ITEM 7.01 REGULATION FD DISCLOSURE
On December 18, 2015, the Company issued a press release announcing the drillships delivery delay. The press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information disclosed under this Item 7.01, including Exhibits 99.1, is being furnished and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section and such information, including Exhibit 99.1, shall not be incorporated by reference into any filing under the Exchange Act of the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such a filing.
SECTION 9 - FINANCIAL STATEMENTS AND EXHIBITS
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
The exhibits to this report furnished pursuant to item 7.01 are as follows:
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10.1 | Supplemental Agreement No. 4 dated 17 December 2015 to the Drillship Contract dated 27 September 2012 by and between Alpha Admiral Company and Daewoo Shipbuilding & Marine Engineering Co., Ltd. |
10.2 | Supplemental Agreement No. 4 dated 17 December 2015 to Drillship Contract dated 24 June 2013 by and between Alpha Archer Company and Daewoo Shipbuilding & Marine Engineering Co., Ltd. |
99.1 | Press Release dated December 18, 2015, announcing the changes to ultra-deepwater drillship delivery and milestone payment schedules. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| ATWOOD OCEANICS, INC. |
| (Registrant) |
Date: December 18, 2015 |
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| /s/ Mark W. Smith |
| Mark W. Smith |
| Chief Financial Officer |
EXHIBIT INDEX
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EXHIBIT NO | DESCRIPTION |
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10.1 | Supplemental Agreement No. 4 dated 17 December 2015 to the Drillship Contract dated 27 September 2012 by and between Alpha Admiral Company and Daewoo Shipbuilding & Marine Engineering Co., Ltd. |
10.2 | Supplemental Agreement No. 4 dated 17 December 2015 to Drillship Contract dated 24 June 2013 by and between Alpha Archer Company and Daewoo Shipbuilding & Marine Engineering Co., Ltd. |
99.1 | Press Release dated December 18, 2015, announcing the changes to ultra-deepwater drillship delivery and milestone payment schedules. |
Exhibit 10.1
Supplemental Agreement No. 4
Dated Effective as of 17 December 2015
To DRILLSHIP CONTRACT dated 27 September, 2012
By and between
ALPHA ADMIRAL COMPANY (the “Buyer”)
and
DAEWOO SHIPBUILDING & MARINE ENGINEERING CO., LTD. (“Builder”)
(together, the “Parties” and each individually, a “Party”)
WHEREAS
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A. | The Builder and the Buyer are Parties to that certain Drillship Contract dated 27 September 2012 (the “Contract”) for the construction and sale of one (1) Deepwater Drillship with Hull No. 3619. |
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B. | On 1 November 2014, the Parties supplemented the Contract by executing Supplemental Agreement No. 1 (“Supplemental Agreement No. 1”), pursuant to which the DELIVERY DATE for the DRILLSHIP was extended from 31 March 2015 (the “Original Delivery Date”) to 30 September 2015 (the “Fall 2015 Delivery Date”) in exchange for payment to the BUILDER by the BUYER of INTERIM PAYMENT 1 (in the amount of USD $50,000,000) on 1 November 2014, INTERIM PAYMENT 2 (in the amount of USD $25,000,000) on 30 June 2015, and USD $2,731,625 on the Fall 2015 Delivery Date (the “Original Financing Payment”). |
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C. | Effective 6 February 2015, the Parties further supplemented the Contract by executing Supplemental Agreement No. 2 (“Supplemental Agreement No. 2”), pursuant to which the DELIVERY DATE for the DRILLSHIP could potentially be extended for up to two consecutive six month periods as specified therein. |
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D. | The Buyer has delivered notice pursuant to and in accordance with Supplemental Agreement No. 2, and therefore the DELIVERY DATE for the DRILLSHIP has been extended to the Spring 2016 Delivery Date of 31 March 2016. |
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E. | Effective 18 May 2015, the Parties further supplemented the Contract by executing Supplemental Agreement No. 3 (“Supplemental Agreement No. 3”), pursuant to which the Parties modified the payment schedule for the delivery of certain payment milestones as specified in Supplemental Agreement No. 2, as well as certain provisions related to the storage location of the DRILLSHIP within the SHIPYARD prior to the DELIVERY DATE and costs related thereto. |
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F. | The Parties now wish to further modify the payment schedule for the delivery of certain milestone payments, extend the potential DELIVERY DATE of the DRILLSHIP, and amend certain fees related to the financing and maintenance of the DRILLSHIP while at the SHIPYARD. |
NOW, in consideration of the premises and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, IT IS HEREBY AGREED AS FOLLOWS:
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1. | This Supplemental Agreement No. 4 (the “Agreement”) is supplemental to the Contract and shall be considered an integral part thereof. Unless otherwise defined in this Supplemental Agreement No. 4, words and expressions defined in the Contract or Supplemental Agreement No. 1, Supplemental Agreement No. 2, or Supplemental Agreement No. 3 shall have the same meaning when used in this Supplemental Agreement No. 4. |
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2. | BUILDER and BUYER agree to waive the requirement for separate written notice as specified by Section 4 of Supplemental Agreement No. 2, and instead hereby agree to extend the DELIVERY DATE for the DRILLSHIP by an additional eighteen (18) months from the Spring 2016 Delivery Date (the “Supplemental Extension Period”) to 30 September 2017 (the “Fall 2017 Delivery Date”). Article VII.2.(a) of the Contract shall be deleted in its entirety and shall be replaced with the following: |
The DRILLSHIP shall be DELIVERED safely afloat by BUILDER to BUYER at a berth in the SHIPYARD on or before 30th September 2017, except that, in the event of delays in the construction of the DRILLSHIP or any performance required under this CONTRACT due to causes which under
the terms of this CONTRACT permit postponement of the date for DELIVERY, the aforementioned date for DELIVERY of the DRILLSHIP shall be postponed accordingly. The aforementioned date, or such later date to which the requirement of DELIVERY is postponed pursuant to such terms, is herein called the “DELIVERY DATE”.
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3. | The BUYER and BUILDER agree to amend and revise INTERIM PAYMENT 4 as defined in Supplemental Agreement No. 2, from the original value of One Hundred and Forty Million Nine Hundred Thousand United States Dollars (USD $140,900,000) no later than 31 March 2016, to an amended value of Fifty Million United States Dollars (USD $50,000,000) due no later than 31 December 2015, with such amended payment subsequently defined as INTERIM PAYMENT 4 (“INTERIM PAYMENT 4”). The Parties agree that the CONTRACT PRICE, which was reduced pursuant to Supplemental Agreement No. 1, Supplemental Agreement No. 2, and Supplemental Agreement No. 3, shall be further reduced by INTERIM PAYMENT 4 such that PAYMENT MILESTONE 2, due at the DELIVERY DATE of the DRILLSHIP, shall be reduced to ninety three million nine hundred thousand US Dollars (USD $93,900,00.00). Accordingly, Article II.3(b) of the Contract shall be amended such that the phrase “One Hundred Forty Three Million Nine Hundred Thousand (USD $143,900,000.00)” shall be deleted in its entirety and replaced with “Ninety Three Million Nine Hundred Thousand (USD $93,900,000.00)”. |
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4. | Notwithstanding the provisions of Article VII.2. of the Contract (as amended by this Supplemental Agreement No. 4), at any time after the Effective Date of this Agreement but prior to 15 August 2017, BUYER may give BUILDER written notice of its requirement that the DELIVERY DATE for the DRILLSHIP be accelerated to forty five (45) days from the date of such notice (the “Accelerated Delivery Notice - Fall 2017”). In the event an Accelerated Delivery Notice - Fall 2017 is delivered, upon receipt of the Accelerated Delivery Notice - Fall 2017, BUILDER will promptly restart its construction and other activities and use its best efforts to deliver the DRILLSHIP within the forty five (45) day period. In the event BUILDER fails to meet the accelerated DELIVERY DATE and deliver the DRILLSHIP within forty five (45) days from receipt of such notice, BUYER shall not be liable for the Extension Fee - Fall 2017 for any day following the forty five day period, in addition to remaining entitled to any other BUYER remedies provided in the Contract. |
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5. | BUYER and BUILDER further agree that: |
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a. | As of the earlier of the date of payment for INTERIM PAYMENT 4 or 1 January 2016 (“Payment Date”), and continuing for every day throughout the earlier of the DELIVERY DATE on 30 September 2017, or the DELIVERY DATE set forth in the Accelerated Delivery Notice - Fall 2017, the BUILDER shall charge BUYER the following amounts: |
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i. | documented expenses in connection with the maintenance, preservation, storage and required third parties, including BUILDER-supplied labor, for the DRILLSHIP shall be agreed in writing in advance and paid using the Maintenance Day Rate schedule as set forth in Appendix 1 to this Supplemental Agreement No. 4; |
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ii. | documented expenses plus a five percent (5%) markup for fuel oils and/or other consumables necessary for the Supplemental Extension Period to be supplied by BUILDER and reimbursed by BUYER; provided, however, that the major fuel purchase immediately prior to the DELIVERY of the DRILLSHIP shall be provided at documented cost without the aforementioned five percent (5%) markup; |
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iii. | a fee of nine thousand four dollars and eleven cents United States Dollars (USD $9,004.11) per day (the “Supplemental Financing Payment - Fall 2017”), which amount shall be calculated by adding the daily interest on the outstanding amount of PAYMENT MILESTONE 2 (as amended by Clause 3, above) as of the Payment Date at a rate of three and one half percent (3.5%) per annum; provided that, in the event the outstanding CONTRACT PRICE is reduced by BUYER making any additional payments towards MILESTONE PAYMENT 2 prior to the DELIVERY DATE of the DRILLSHIP (“Early Payment”), the Supplemental Financing Payment - Fall 2017 shall be reduced on a pro-rata basis based on the proportion of such Early Payment as a function of the outstanding CONTRACT PRICE. |
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iv. | a fee of one thousand three hundred and thirty three United States Dollars (USD $1,333.00) per day (the “Supplemental Classification Payment”); and |
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v. | a fee of two thousand seven hundred sixty three United States Dollars (USD $2,763.00) per day (the “ Supplemental Insurance Payment”). |
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b. | commencing 1 October 2016, and continuing for every day throughout the earlier of the DELIVERY DATE on 30 September 2017 or the DELIVERY DATE set forth in the Accelerated Delivery Notice - Fall 2017, the BUILDER shall charge BUYER an additional fee equal to two thousand five hundred seventy two dollars and sixty cents United States dollars (USD $2,572.60) per day (the “Supplemental Dock Fee”) for additional incurred costs; provided that, in the event the outstanding CONTRACT PRICE is reduced by BUYER making any additional payments towards MILESTONE PAYMENT 2 prior to the DELIVERY DATE of the DRILLSHIP, the Supplemental Dock Fee shall be reduced on a pro-rata basis based on the proportion of such early payment as a function of the outstanding CONTRACT PRICE. |
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c. | on the first of the month immediately following the payment of INTERIM PAYMENT 4 and continuing monthly until the DELIVERY DATE, BUILDER shall invoice BUYER for the aggregate Maintenance Day Rate, Supplemental Financing Payment - Fall 2017, Supplemental Classification Payment, and Supplemental Insurance Payment, and any Supplemental Dock Fee, if applicable, (“Extension Fee - Fall 2017”) accrued for the preceding calendar month. BUYER shall be obligated to pay the aggregate amount within ten (10) BANKING DAYS after receipt of the relevant invoice. Payment of such invoices shall be considered full and final payment to BUILDER of all of BUILDER’s costs incurred in connection with the extension of the DELIVERY DATE. |
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6. | BUILDER agrees to use its best efforts to not move the DRILLSHIP within the SHIPYARD and to keep the DRILLSHIP inside the breakwater area of BUILDER’s shipyard. In the event that the DRILLSHIP must be moved outside breakwater due to an imminent emergency threatening the SHIPYARD caused by a typhoon, cyclone or other tropical storm, BUYER shall pay for all incurred and documented reasonable costs and expenses for movement of the DRILLSHIP into and out of the breakwater area and all incurred and documented reasonable costs and expenses for storage of the DRILLSHIP while outside the breakwater as referenced in the breakwater cost quotation attached hereto as Appendix 2. Notwithstanding the foregoing, BUILDER agrees to use its best efforts to return the DRILLSHIP back inside the breakwater area of the SHIPYARD as soon as reasonably possible. For clarity, BUILDER may not concurrently charge BUYER for the vessel movement fee as specified in Appendix I and the foregoing breakwater fee in relation to any one movement operation. |
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7. | BUYER and BUILDER agree in the event that the BUILDER should move the DRILLSHIP outside breakwater due to the SHIPYARD quayside availability, BUILDER shall provide reasonably satisfactory support for such decision in advance of any move and notify BUYER of the same, and BUYER shall pay for all incurred and documented reasonable costs and expenses for movement of the DRILLSHIP into and out of the breakwater area and all incurred and documented reasonable costs and expenses for storage of the DRILLSHIP while outside the breakwater, up to a maximum of fifty thousand United States Dollars (USD $50,000.00) per day, or any portion thereof, that the DRILLSHIP is outside the breakwater and BUYER shall only pay such amounts for a maximum of two occurrences per year, with a maximum duration six (6) days per occurrence. Notwithstanding the foregoing, BUILDER agrees to use its best efforts to return the DRILLSHIP back inside the breakwater area of the SHIPYARD as soon as reasonably possible. For clarity, BUILDER may not concurrently charge BUYER for the vessel movement fee as specified in Appendix I and the foregoing breakwater fee in relation to any one movement operation. |
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8. | BUILDER represents that the movement cost estimate in Appendix 2 is a good faith estimate of the actual expenses to be incurred for a movement operation of the DRILLSHIP outside the breakwater. The costs assessed for any movement operation outside the breakwater as referenced in Section 6 and Section 7 above shall not exceed the estimate attached hereto as Appendix 2 without prior written consent from BUYER. BUILDER shall provide the crews, equipment, and other services as quoted in the estimate unless otherwise agreed by the BUYER in writing. To the extent that the fees incurred and documented are less than such estimate, and/or to the extent that BUILDER does not provide the crews, equipment, and other services as quoted in the estimate, BUILDER shall proportionally reduce BUYER’s obligations for reimbursement of such costs and only charge BUYER for the actual incurred and documented costs and expenses for any such movement operation up to the proportionally reduced maximum amount quoted in Appendix 2 for an emergency |
move as referenced in Section 6, or a pro-rata reduction of the USD $50,000 per day obligation as referenced in Section 7 for a movement operation related to BUILDER quayside availability.
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9. | BUYER and BUILDER agree that the Original Financing Payment of USD $2,731,625 as referenced in Supplemental Agreement No. 1, Supplemental Agreement No. 2 and Supplemental Agreement No. 3 shall be reduced to USD $1,408,337 effective as of 18 May 2015, and that the payment made by BUYER on 30 September 2015 in the amount of one million four hundred eight thousand three hundred thirty seven United States Dollars (USD $1,408,337.00) shall serve as final accord and satisfaction of BUYER’s obligations in relation to the Original Financing Payment and Builder’s Invoice No. 3619-INV-001-CO issued 21 September 2015. |
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10. | BUYER and BUILDER agree that, in the event of a BUILDER DEFAULT as defined in the Contract and referenced in Article VII, Clause 5 of the Contract, BUYER’s right to take early DELIVERY of the DRILLSHIP shall not be unreasonably withheld, delayed, or conditioned, and in any event such early DELIVERY shall occur no later than fourteen (14) days following BUILDER DEFAULT and written notice from BUYER requesting early DELIVERY. BUILDER shall endeavor to perform all actions necessary to effect such early DELIVERY and such transfer of risk and title, including but not limited to obtaining a waiver or release of any security interest held by a third party which would otherwise prohibit BUYER’s assumption of title and risk of the DRILLSHIP pursuant to this Section 10. |
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11. | Appendix I attached to Supplemental Agreement No. 3 shall be replaced in its entirety by the Appendix I attached to this Supplemental Agreement No. 4, and is hereby incorporated by reference. |
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12. | All the terms and conditions of the Contract, Supplemental Agreement No. 1, Supplemental Agreement No. 2, and Supplemental Agreement No. 3 shall remain unchanged and be in full force and effect unless otherwise provided hereunder. |
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13. | The existence and content of this Supplemental Agreement No. 4 shall remain strictly private and confidential to the Parties and their advisors and shall not be disclosed by either Party to any third party (except any financier of the Drillship or its advisers) absent the agreement of the other Party, save by compulsion of law or regulatory authority. |
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14. | Each Party hereto confirms that its respective obligations under, arising out of or in connection with, the Contract shall continue in full force and effect as amended by this Supplement Agreement No. 4. |
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15. | This Supplemental Agreement No. 4 shall be governed by and construed in accordance with the laws of England and any dispute arising under this Supplemental Agreement No. 4 shall be submitted to arbitration in accordance with Article XIII (DISPUTES AND ARBITRATION) of the Contract. |
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16. | This Supplemental Agreement No. 4 may be executed by each of the Parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Supplemental Agreement No. 4 in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Supplemental Agreement No. 4, although the original signature pages shall be thereafter appended to this Supplemental Agreement No. 4. |
[Signature Page Follows]
For and on behalf of
Alpha Admiral Company
By: /s/Anthony H. Dyne
Name: Anthony H. Dyne
Title: Director
For and on behalf of
Daewoo Shipbuilding & Marine Engineering Co., Ltd.
By: /s/ Young Soon Lee
Name: Young Soon Lee
Title: Vice President
Exhibit 10.2
Supplemental Agreement No. 4
Dated Effective as of 17 December 2015
To DRILLSHIP CONTRACT dated 24 June 2013
By and between
ALPHA ARCHER COMPANY (the “Buyer”)
and
DAEWOO SHIPBUILDING & MARINE ENGINEERING CO., LTD. (“Builder”)
(together, the “Parties” and each individually, a “Party”)
WHEREAS
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A. | The Builder and the Buyer are Parties to that certain Drillship Contract dated 24 June 2013 (the “Contract”) for the construction and sale of one (1) Deepwater Drillship with Hull No. 3622. |
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B. | On 1 November 2014, the Parties supplemented the Contract by executing Supplemental Agreement No. 1 (“Supplemental Agreement No. 1”), pursuant to which the DELIVERY DATE for the DRILLSHIP was extended from 31 December 2015 (the “Original Delivery Date”) to 30 June 2016 (the “Summer 2016 Delivery Date”) in exchange for payment to the BUILDER by the BUYER of INTERIM PAYMENT 1 (in the amount of USD $50,000,000) on 30 November 2014, INTERIM PAYMENT 2 (in the amount of USD $25,000,000) on 30 June 2015, and USD $3,214,250 on the Summer 2016 Delivery Date (the “Original Financing Payment”). |
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C. | Effective 6 February 2015, the Parties further supplemented the Contract by executing Supplemental Agreement No. 2 (“Supplemental Agreement No. 2”), pursuant to which the DELIVERY DATE for the DRILLSHIP could potentially be extended for up to two consecutive six month periods as specified therein. |
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D. | Effective 18 May 2015, the Parties further supplemented the Contract by executing Supplemental Agreement No. 3 (“Supplemental Agreement No. 3”), pursuant to which the Parties modified the payment schedule for the delivery of certain payment milestones as specified in Supplemental Agreement No. 2, as well as certain provisions related to the storage location of the DRILLSHIP within the SHIPYARD prior to the DELIVERY DATE and costs related thereto. |
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E. | The Parties now wish to further modify the payment schedule for the delivery of certain milestone payments, extend the potential DELIVERY DATE of the DRILLSHIP, and amend certain fees related to the financing and maintenance of the DRILLSHIP while at the SHIPYARD. |
NOW, in consideration of the premises and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, IT IS HEREBY AGREED AS FOLLOWS:
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1. | This Supplemental Agreement No. 4 (the “Agreement”) is supplemental to the Contract and shall be considered an integral part thereof. Unless otherwise defined in this Supplemental Agreement No. 4, words and expressions defined in the Contract or Supplemental Agreement No. 1, Supplemental Agreement No. 2, or Supplemental Agreement No. 3 shall have the same meaning when used in this Supplemental Agreement No. 4. |
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2. | BUILDER and BUYER agree to waive the requirement for separate written notice as specified by Section 2 and Section 4 of Supplemental Agreement No. 2, and instead hereby agree to extend the DELIVERY DATE for the DRILLSHIP by an additional twenty four (24) months from the Summer 2016 Delivery Date per Supplemental Agreement No. 2, (the “Supplemental Extension Period”) to 30 June 2018 (the “Summer 2018 Delivery Date”). Article VII.2.(a) of the Contract shall be deleted in its entirety and shall be replaced with the following: |
The DRILLSHIP shall be DELIVERED safely afloat by BUILDER to BUYER at a berth in the SHIPYARD on or before 30th June 2018, except that, in the event of delays in the construction of the DRILLSHIP or any performance required under this CONTRACT due to causes which under the
terms of this CONTRACT permit postponement of the date for DELIVERY, the aforementioned date for DELIVERY of the DRILLSHIP shall be postponed accordingly. The aforementioned date, or such later date to which the requirement of DELIVERY is postponed pursuant to such terms, is herein called the “DELIVERY DATE”.
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3. | The BUYER and BUILDER agree to amend and revise INTERIM PAYMENT 3 as defined in Supplemental Agreement No. 2, from the original value of One Hundred and Fifty Million United States Dollars (USD $150,000,000) no later than 31 December 2015, to an amended value of Fifty Million United States Dollars (USD $50,000,000) due no later than 31 December 2015, with such amended payment subsequently defined as INTERIM PAYMENT 3 (“INTERIM PAYMENT 3”). The Parties agree that the CONTRACT PRICE, which was reduced pursuant to Supplemental Agreement No. 1, Supplemental Agreement No. 2, and Supplemental Agreement No. 3, shall be further reduced by INTERIM PAYMENT 3 such that PAYMENT MILESTONE 2, due at the DELIVERY DATE of the DRILLSHIP, shall be reduced to three hundred five million US Dollars (USD $305,000,000.00). Accordingly, Article II.3(b) of the Contract shall be amended such that the phrase “Three Hundred Fifty Five Million (USD $355,000,000.00)” shall be deleted in its entirety and replaced with “Three Hundred Five Million (USD $305,000,000.00)”. |
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4. | The BUYER and BUILDER agree to eliminate INTERIM PAYMENT 4 as defined in Supplemental Agreement No. 2, with original value of Two Hundred Million United States Dollars (USD $200,000,000) no later than 31 December 2016, and that the remaining outstanding CONTRACT PRICE balance of three hundred five million United States Dollars (USD $305,000,000.00) for MILESTONE PAYMENT 2 will be due upon the DELIVERY DATE. |
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5. | The BUYER and BUILDER agree that the WARRANTY PERIOD as defined in Article IX.1 of the Contract shall commence on 31 December 2016, or at any time prior to such date upon the completion of the scope of work as referenced in Section 6 of Supplemental Agreement No. 2. Should the WARRANTY PERIOD not commence by 31 December 2016, the BUYER shall have no obligation to pay any fees, including but not limited to the Supplemental Financing Payment - Summer 2018 or the Supplemental Dock Fee, if applicable, until the WARRANTY PERIOD actually commences. If BUYER wishes to advance the completion date of the DRILLSHIP and the commencement of the WARRANTY PERIOD before the current target completion date of 31 December 2016 (the “Target Completion Date”), BUILDER may advance the completion date of the DRILLSHIP and the commencement of the WARRANTY PERIOD up to two (2) months from the Target Completion Date, provided always that BUYER serves a six (6) months prior notice from the date BUYER wishes to advance the completion date of the DRILLSHIP and the commencement of the WARRANTY PERIOD. In the event that BUYER has accelerated the completion date of the DRILLSHIP and the commencement date of the WARRANTY PERIOD per the foregoing sentence, and BUYER has also delivered an Accelerated Delivery Notice - Summer 2018 as defined herein at least forty five (45) days in advance of the date as specified in BUYER’s six (6) month notice to advance the completion date of the DRILLSHIP and the commencement of the WARRANTY PERIOD as provided above, and BUILDER does not commence the WARRANTY PERIOD by the date provided in BUYER’s six (6) month notice, the BUYER shall have no obligation to pay any fees, including but not limited to the Supplemental Financing Payment - Summer 2018 or the Supplemental Dock Fee, if applicable, until the WARRANTY PERIOD actually commences. |
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6. | Notwithstanding the provisions of Article VII.2. of the Contract (as amended by this Supplemental Agreement No. 4), at any time at least forty five (45) days prior to the agreed date for the commencement of the WARRANTY PERIOD as specified in Section 5 of this Supplemental Agreement No. 4, but prior to 15 May 2018, BUYER may give BUILDER written notice of its requirement that the DELIVERY DATE for the DRILLSHIP be accelerated to forty-five (45) days from the date of such notice (the “Accelerated Delivery Notice - Summer 2018”), provided that such notice may not advance the DELIVERY DATE ahead of the agreed date for the commencement of the WARRANTY PERIOD as specified in Section 5 of this Supplemental Agreement No. 4. In the event an Accelerated Delivery Notice - Summer 2018 is delivered, upon receipt of the Accelerated Delivery Notice - Summer 2018, BUILDER will promptly restart its construction and other activities and use its best efforts to deliver the DRILLSHIP within the forty five (45) day period. In the event BUILDER fails to meet the accelerated DELIVERY DATE and deliver the DRILLSHIP within forty five (45) days from receipt of such notice, BUYER shall not be liable for the Supplemental Financing Payment Summer |
- 2018 or the Extension Fee - Summer 2018 for any day thereafter, in addition to remaining entitled to any other BUYER remedies provided in the Contract.
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7. | BUYER and BUILDER agree that as of 1 April 2016 (“Payment Date”) and continuing for every day throughout the earlier of the DELIVERY DATE on 30 June 2018 or the DELIVERY DATE set forth in the Accelerated Delivery Notice - Summer 2018, the BUYER shall pay BUILDER a fee of twenty nine thousand two hundred forty six dollars and fifty eight cents United States Dollars (USD $29,246.58) per day (the “Supplemental Financing Payment - Summer 2018”), which amount shall be calculated by adding the daily interest on the outstanding amount of PAYMENT MILESTONE 2 (as amended by Clause 3, above) as of the Payment Date at a rate of three and one half percent (3.5%) per annum; provided that, in the event the outstanding CONTRACT PRICE is reduced by BUYER making any additional payments towards MILESTONE PAYMENT 2 prior to the DELIVERY DATE of the DRILLSHIP, the Supplemental Financing Payment - Summer 2018 shall be reduced on a pro-rata basis based on the proportion of such early payment as a function of the outstanding CONTRACT PRICE. Commencing on the first of the month immediately following the Payment Date and continuing monthly until the DELIVERY DATE, BUILDER shall invoice BUYER for Supplemental Financing Payment - Summer 2018 for the preceding calendar month. BUYER shall be obligated to pay the aggregate amount within ten (10) BANKING DAYS after receipt of the relevant invoice. Payment of such invoices shall be considered full and final payment to BUILDER of all costs associated with such amounts. |
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8. | BUYER and BUILDER further agree that: |
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a. | beginning with the commencement of the WARRANTY PERIOD, and continuing for every day throughout the earlier of the DELIVERY DATE on 30 June 2018 or the DELIVERY DATE set forth in the Accelerated Delivery Notice - Summer 2018, the BUILDER shall charge BUYER the following amounts: |
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i. | documented expenses in connection with the maintenance, preservation, storage and required third parties, including BUILDER-supplied labor, for the DRILLSHIP shall be agreed in writing in advance and paid using the Maintenance Day Rate schedule as set forth in Appendix 1 to Supplemental Agreement No. 4; |
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ii. | documented expenses plus a five percent (5%) markup for fuel oils and/or other consumables necessary for the WARRANTY PERIOD to be supplied by BUILDER and reimbursed by BUYER; provided, however, that the major fuel purchase immediately prior to the DELIVERY of the DRILLSHIP shall be provided at documented cost without the aforementioned five percent (5%) markup; |
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iv. | a fee of one thousand three hundred and thirty three United States Dollars (USD $1,333.00) per day (the “Supplemental Classification Payment”); and |
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v. | a fee of two thousand seven hundred sixty three United States Dollars (USD $2,763.00) per day (the “ Supplemental Insurance Payment”). |
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b. | commencing 1 July 2017, and continuing for every day throughout the earlier of 30 June 2018 or the DELIVERY DATE set forth in the Accelerated Delivery Notice - Summer 2018, the BUILDER shall charge BUYER an additional fee equal to eight thousand three hundred fifty six dollars and sixteen cents United States dollars (USD $8,356.16) per day (the “Supplemental Dock Fee”) for additional incurred costs; provided that, in the event the outstanding CONTRACT PRICE is reduced by BUYER making any additional payments towards MILESTONE PAYMENT 2 prior to the DELIVERY DATE of the DRILLSHIP, the Supplemental Dock Fee shall be reduced on a pro-rata basis based on the proportion of such early payment as a function of the outstanding CONTRACT PRICE. |
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c. | on the first of the month immediately following the commencement of the WARRANTY PERIOD and continuing monthly until the DELIVERY DATE, BUILDER shall invoice BUYER for the aggregate Maintenance Day Rate, Supplemental Classification Payment, and Supplemental Insurance Payment, and any Supplemental Dock Fee, if applicable, (“Extension Fee - Summer 2018”) accrued for the preceding calendar month. BUYER shall be obligated to pay the aggregate amount within 10 BANKING DAYS after receipt of the relevant invoice. Payment of such invoices shall be considered full and final payment to BUILDER of all of BUILDER’s costs incurred in connection with the extension of the DELIVERY DATE. |
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9. | BUILDER agrees to use its best efforts to not move the DRILLSHIP within the SHIPYARD and to keep the DRILLSHIP inside the breakwater area of BUILDER’s shipyard. In the event that the DRILLSHIP must be moved outside breakwater due to an imminent emergency threatening the SHIPYARD caused by a typhoon, cyclone or other tropical storm, BUYER shall pay for all incurred and documented reasonable costs and expenses for movement of the DRILLSHIP into and out of the breakwater area and all incurred and documented reasonable costs and expenses for storage of the DRILLSHIP while outside the breakwater as referenced in the breakwater cost quotation attached hereto as Appendix 2, but only to the extent that such movement operation occurs after the commencement of the WARRANTY PERIOD. Notwithstanding the foregoing, BUILDER agrees to use its best efforts to return the DRILLSHIP back inside the breakwater area of the SHIPYARD as soon as reasonably possible. For clarity, BUILDER may not concurrently charge BUYER for the vessel movement fee as specified in Appendix I and the foregoing breakwater fee in relation to any one movement operation. |
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10. | BUYER and BUILDER agree in the event that the BUILDER should move the DRILLSHIP outside breakwater due to the SHIPYARD quayside availability, BUILDER shall provide reasonably satisfactory support for such decision and notify BUYER of the same in advance of any move, and BUYER shall pay for all incurred and documented reasonable costs and expenses for movement of the DRILLSHIP into and out of the breakwater area and all incurred and documented reasonable costs and expenses for storage of the DRILLSHIP while outside the breakwater, but only to the extent that such movement operation occurs after the commencement of the WARRANTY PERIOD, up to a maximum of fifty thousand United States Dollars (USD $50,000.00) per day, or any portion thereof, that the DRILLSHIP is outside the breakwater and BUYER shall only pay such amounts for a maximum of two occurrences per year, with a maximum duration of six (6) days per occurrence. Notwithstanding the foregoing, BUILDER agrees to use its best efforts to return the DRILLSHIP back inside the breakwater area of the SHIPYARD as soon as reasonably possible. For clarity, BUILDER may not concurrently charge BUYER for the vessel movement fee as specified in Appendix I and the foregoing breakwater fee in relation to any one movement operation. |
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11. | BUILDER represents that the movement cost estimate in Appendix 2 is a good faith estimate of the actual expenses to be incurred for a movement operation of the DRILLSHIP outside the breakwater. The costs assessed for any movement operation outside the breakwater as referenced in Section 9 and Section 10 above shall not exceed the estimate attached hereto as Appendix 2 without prior written consent from BUYER. BUILDER shall provide the crews, equipment, and other services as quoted in the estimate unless otherwise agreed by the BUYER in writing. To the extent that the fees incurred and documented are less than such estimate, and/or to the extent that BUILDER does not provide the crews, equipment, and other services as quoted in the estimate, BUILDER shall proportionally reduce BUYER’s obligation under Appendix 2 and only charge BUYER for the actual incurred and documented costs and expenses for any such movement operation up to the proportionally reduced maximum amount quoted in Appendix 2 for an emergency move as referenced in Section 9, or a pro-rata reduction of the USD $50,000 per day obligation as referenced in Section 10 for a movement operation related to BUILDER quayside availability. |
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12. | The BUYER and BUILDER agree that the Original Financing Payment of $3,214,250.00 as referenced in Supplemental Agreement No. 1, Supplemental Agreement No. 2, and Supplemental Agreement No. 3 and due upon the commencement of the WARRANTY PERIOD shall be eliminated and no longer be due and payable to BUILDER in recognition of the revision of the terms as set forth herein. |
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13. | BUYER and BUILDER agree that, in the event of a BUILDER DEFAULT as defined in the Contract and referenced in Article VII, Clause 5 of the Contract, BUYER’s right to take early DELIVERY of the DRILLSHIP shall not be unreasonably withheld, delayed, or conditioned, and in any event such early DELIVERY shall occur no later than fourteen (14) days following BUILDER DEFAULT and written notice from BUYER requesting early DELIVERY. BUILDER shall endeavor to perform all actions necessary to effect such early DELIVERY and such transfer of risk and title, including but not limited to obtaining a waiver or release of any security interest held by a third party which would otherwise prohibit BUYER’s assumption of title and risk of the DRILLSHIP pursuant to this Section 13. |
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14. | Appendix I attached to Supplemental Agreement No. 3 shall be replaced in its entirety by the Appendix I attached to this Supplemental Agreement No. 4, and is hereby incorporated by reference. |
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15. | All the terms and conditions of the Contract, Supplemental Agreement No. 1, Supplemental Agreement No. 2, and Supplemental Agreement No. 3 shall remain unchanged and be in full force and effect unless otherwise provided hereunder. |
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16. | The existence and content of this Supplemental Agreement No. 4 shall remain strictly private and confidential to the Parties and their advisors and shall not be disclosed by either Party to any third party (except any financier of the Drillship or its advisers) absent the agreement of the other Party, save by compulsion of law or regulatory authority. |
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17. | Each Party hereto confirms that its respective obligations under, arising out of or in connection with, the Contract shall continue in full force and effect as amended by this Supplement Agreement No. 4. |
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18. | This Supplemental Agreement No. 4 shall be governed by and construed in accordance with the laws of England and any dispute arising under this Supplemental Agreement No. 4 shall be submitted to arbitration in accordance with Article XIII (DISPUTES AND ARBITRATION) of the Contract. |
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19. | This Supplemental Agreement No. 4 may be executed by each of the Parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Supplemental Agreement No. 4 in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of an executed original counterpart of this Supplemental Agreement No. 4, although the original signature pages shall be thereafter appended to this Supplemental Agreement No. 4. |
[Signature Page Follows]
For and on behalf of
Alpha Archer Company
By: /s/Anthony H. Dyne
Name: Anthony H. Dyne
Title: Director
For and on behalf of
Daewoo Shipbuilding & Marine Engineering Co., Ltd.
By: /s/ Young Soon Lee
Name: Young Soon Lee
Title: Vice President
Exhibit 99.1
ATWOOD OCEANICS ANNOUNCES CHANGES TO ULTRA-DEEPWATER DRILLSHIP DELIVERY AND MILESTONE PAYMENT SCHEDULES
FOR IMMEDIATE RELEASE
HOUSTON, December 18, 2015-- Atwood Oceanics, Inc. (NYSE: ATW) announced today that subsidiaries of the Company have agreed with Daewoo Shipbuilding & Marine Engineering Co. (DSME) to delay the Company’s requirement to take delivery of two newbuild ultra-deepwater drillships, the Atwood Admiral and the Atwood Archer, to September 30, 2017 and June 30, 2018, respectively.
In consideration of the agreement, the Company will make payments of $50 million for each drillship on December 31, 2015, and DSME will extend all remaining milestone payments, $93.9 million for the Admiral and $305 million for the Archer, until their respective delivery dates. The Company retains the option to take earlier delivery of each vessel, subject to a forty-five (45) day notice period to DSME.
Atwood Oceanics, Inc. is a leading offshore drilling contractor engaged in the drilling and completion of exploratory and developmental wells for the global oil and gas industry. The Company currently owns 11 mobile offshore drilling units and is constructing two ultra-deepwater drillships. The Company was founded in 1968 and is headquartered in Houston, Texas. Atwood Oceanics, Inc. common stock is traded on the New York Stock Exchange under the symbol "ATW."
As part of our ongoing commitment to our shareholders, Atwood Oceanics uses a variety of Social Networks sites to disseminate company information. For a full list of the official Social Media pages for Atwood Oceanics, please visit the Social Media Disclaimer page of our IR site at: http://ir.atwd.com/GenPage.aspxIID=4010374&GKP=210376.
Contact: Mark W. Smith
Senior Vice President and CFO
(281) 749-7840
Forward Looking Statements
Statements contained in this press release with respect to the future, including information regarding the expected delivery dates, are forward-looking statements. These statements reflect management's reasonable judgment with respect to future events. Forward-looking statements are subject to numerous risks, uncertainties and assumptions and actual results could differ materially from those anticipated as a result of various factors including: uncertainties related to the level of activity in offshore oil and gas exploration and development; oil and gas prices; competition and market conditions in the contract drilling industry; our ability to enter into and the terms of future contracts; possible cancelation or suspension of drilling contracts; the availability of qualified personnel; labor relations; operating hazards and risks; terrorism and political and other uncertainties inherent in foreign operations (including risk of war, civil disturbances, seizure or damage to equipment and exchange and currency fluctuations); the impact of governmental and industry laws and regulations; and environmental matters. These factors and others are described and discussed in our most recently filed annual report on Form 10-K, in our Forms 10-Q for subsequent periods and in our other filings with the Securities and Exchange Commission which are available on the SEC's website at www.sec.gov. Each forward looking statement speaks only as of the date of the particular statement and we undertake no duty to update the content of this press release or any forward-looking statement contained herein to conform the statement to actual results or to reflect changes in our expectations.
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