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): June 14, 2006
ALEXANDER & BALDWIN, INC.
(Exact name of registrant as specified in its charter)
Hawaii 0-565 99-0032630
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(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
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incorporation) Identification No.)
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822 Bishop Street, P. O. Box 3440
Honolulu, Hawaii 96801
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(Address of principal executive office and zip code)
(808) 525-6611
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(Registrant's telephone number, including area code)
Not Applicable
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(Former Name or Former Address, 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 (see General Instruction A.2.):
_
|_| 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.
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The information set forth below in Item 2.03 is incorporated into this
Item 1.01 by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
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Off-Balance Sheet Arrangement of a Registrant.
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On June 14, 2006, Alexander & Baldwin, Inc. ("A&B"), Kukui'ula
Development Company (Hawaii), LLC ("Kukui'ula"), DMB Kukui'ula LLC, DMB
Communities LLC (the preceding two entities, jointly and severally, "DMB"),
collectively, the "Indemnitors," entered into a General Contract of Indemnity
("Indemnity") in favor of Travelers Casualty and Surety Company of America
("Travelers"). The Indemnity was entered into in connection with Travelers'
execution of an agreement with Kukui'ula for the delivery of one or more bonds.
Kukui'ula is a real-estate development joint venture (in which A&B is a member
and has a 50 percent voting interest) that is developing 1,000 acres of land on
the South Shore of Kauai. The joint venture is more fully described in Note 6 of
the Notes to Consolidated Financial Statements in A&B's most recently filed Form
10-K. The bonds are being issued to secure final subdivision approvals, which
will allow for closing of the Kukui'ula lots to take place, and will cover
various construction activities at Kukui'ula, such as project amenities, roads,
utilities and other infrastructure, and subdivision improvements.
Under the Indemnity, the Indemnitors, jointly and severally, agree to
indemnify and exonerate Travelers from all loss, cost, and expense of any kind
or nature, including unpaid premiums, interest, court costs, and attorneys' and
other professional fees (collectively, "Loss"), which Travelers incurs in
connection with any of the bond(s) issued. In the event of default under the
bond agreement between Kukui'ula and Travelers, Indemnitors agree to promptly
reimburse Travelers for all sums paid on account of such Loss and/or to deposit
with Travelers, on demand, a reserve against such Loss. An event of default
includes, among others, failure to perform work of the bonded contracts in a
timely and proper fashion, a declaration of default by any bonded contract
owner, the sustaining of Loss by Travelers, and the establishment by Travelers
of reserves against Loss in connection with the bonds.
Under the Indemnity, the Indemnitors shall have no rights of indemnity,
contribution, or right to seek collection of any other outstanding obligation
against any other indemnitor or their property until the obligations of the
Indemnitors to Travelers have been satisfied in full. However, in connection
with the Indemnity, Kukui'ula, A&B and DMB have separately entered into a Mutual
Indemnification Agreement ("Agreement") under which the parties agree that they
shall each be proportionately liable (60% for DMB and 40% for A&B) for all
payments required to be made under the Indemnity. Under the Indemnity, the
maximum potential amount of aggregate future payments is a function of the
amount covered by outstanding bond(s) at the time of default, reduced by the
amount of work completed. Bonds with an aggregate value of $250 million are
expected to be issued and retired over a six-year period ending in 2012.
However, the total amount of bonds outstanding at any point in time is generally
limited to approximately $200 million. In other words, assuming an event of
default where the maximum amount of bonds are issued and no work is completed,
the maximum potential amount of aggregate future payments under the Indemnity is
approximately $200 million. Including amounts recoverable from DMB under the
Agreement, the maximum potential amount of aggregate future payments for A&B
under the Indemnity is approximately $80 million.
The foregoing description of the Indemnity and Agreement is qualified
in its entirety by the terms of the Indemnity and Agreement, which are filed
hereto as Exhibits 10.1 and 10.2.
Item 9.01. Financial Statements and Exhibits.
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(d) Exhibits
10.1 General Contract of Indemnity, among Alexander &
Baldwin, Inc., Kukui'ula Development Company
(Hawaii), LLC, DMB Kukui'ula LLC, and DMB Communities
LLC, in favor of Travelers Casualty and Surety
Company of America, dated June 13, 2006.
10.2 Mutual Indemnification Agreement, among Kukui'ula
Development Company (Hawaii), LLC, DMB Kukui'ula LLC,
DMB Communities LLC, and Alexander & Baldwin, Inc.,
dated June 14, 2006.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date June 15, 2006
ALEXANDER & BALDWIN, INC.
/s/ Christopher J. Benjamin
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Christopher J. Benjamin
Senior Vice President,
Chief Financial Officer and
Treasurer
- ------------------------------ TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
General Contract Hartford, Connecticut 06183
Of Indemnity
(Commercial Contract - Form B)
We, the undersigned, hereinafter referred to, individually and/or collectively,
as "Indemnitors," hereby request, have requested and/or will request TRAVELERS
CASUALTY AND SURETY COMPANY OF AMERICA, ST. PAUL FIRE AND MARINE INSURANCE
COMPANY, any of their present or future direct or indirect parent companies, any
of the respective present or future direct or indirect affiliates or
subsidiaries of such companies and parent companies, and/or any of the
aforementioned entities' successors or assigns, hereinafter referred to,
individually and/or collectively, as "Company," to furnish bonds, undertakings,
guarantees, and/or contractual obligations, including renewals and extensions
thereof, executed or procured by Company, whether before or after the date of
this Agreement, and bonds and undertakings for which Company has obligations as
a result of an asset purchase, acquisition, merger or like transaction,
hereinafter referred to, individually and/or collectively, as "Bond(s)." As an
inducement therefore we make the following representations of fact, promises and
agreements:
REPRESENTATIONS OF FACT:
1. In the transaction of business one, some or all of the Indemnitors are
required, or may desire to give such Bond(s).
2. Indemnitors have a substantial, material and beneficial interest (a) in the
obtaining of Bond(s) by any of the Indemnitors and (b) in the
transaction(s) for which any other Indemnitor has applied or will apply to
Company for Bond(s) pursuant to this General Contract of Indemnity,
hereinafter referred to as "Agreement." It is understood that the purpose
of this Agreement is to induce Company to furnish Bond(s); however, Company
is under no obligation to furnish Bond(s) to Indemnitors.
3. Indemnitors have the full power and authority to execute, deliver and
perform this Agreement and to carry out the obligations stated herein.
Indemnitors further acknowledge and agree that (a) the execution, delivery
and performance of this Agreement by such Indemnitors, (b) the compliance
with the terms and provisions hereof, and (c) the carrying out of the
obligations contemplated herein, do not, and will not, conflict with and
will not result in a breach or violation of any terms, conditions or
provisions of the charter documents or bylaws of such Indemnitors, or any
law, governmental rule or regulation, or any applicable order, writ,
injunction, judgment or decree of any court or governmental authority
against Indemnitors, or any other agreement binding upon Indemnitors, or
constitute a default thereunder.
PROMISES AND AGREEMENTS: In consideration of the furnishing of any such Bond,
the forbearance of cancellation of any existing Bond(s) by Company, the
assumption of obligations by Company of any Bond, and for other valuable
consideration, Indemnitors hereby jointly and severally promise and agree as
follows:
1. To pay all premiums for each Bond, as they fall due, until Company has been
provided with competent legal evidence that the Bond has been duly
discharged.
2. To indemnify and exonerate Company from and against any and all loss, cost
and expense of whatever kind, including unpaid premiums, interest, court
costs and counsel fees, as well as any expense incurred or sustained by
reason of making any investigation which it may incur or sustain as a
result of or in connection with the furnishing of Bond(s), the assumption
of obligations of Company of Bond(s), and/or the enforcement of this
Agreement, hereinafter referred to as "Loss." To this end Indemnitors
promise:
(a) To promptly reimburse Company for all sums paid on account of such Loss
and it is agreed that (1) originals or photocopies of claim drafts, or
of payment records, kept in the ordinary course of business, including
computer printouts, verified by affidavit, shall be prima facie
evidence of the fact and amount of such Loss, (2) Company shall be
entitled to reimbursement for any and all disbursements made by it,
under the belief that it was liable, or that such disbursement was
necessary or expedient.
(b) To deposit with Company, on demand, the amount of any reserve against
such Loss which Company is required, or deems it prudent to establish
whether on account of an actual liability or one which is, or may be,
asserted against it and whether or not any payment for such Loss has
been made.
3. This Agreement shall apply to any and all Bond(s) furnished as follows:
(a) If Company executes the Bond(s), procures the execution of Bond(s) by
other sureties, executes Bond(s) with co-sureties and/or obtains
reinsurance;
(b) For or on behalf of any or all of the following:
(1) Kukui'ula Development Company (Hawaii), LLC.
4. (a) The validity and effect of this Agreement shall not be impaired by
and Company shall incur no liability on account of, and Indemnitors
need not be notified of:
(1) Company's failure or refusal to furnish Bond(s), including but not
limited to final Bond(s) where Company has furnished a bid Bond.
(2) Company's consent or failure to consent to changes in the terms
and provisions of any Bond, or the obligation or performance
secured by any Bond.
(3) The taking, failing to take, or release of security, collateral,
assignment, indemnity agreements and the like, as to any Bond.
(4) The release by Company, on terms satisfactory to it, of any
Indemnitors.
(5) Information which may come to the attention of Company which
affects or might affect its rights and liabilities or those of any
of the Indemnitors.
(b) The validity and effect of this Agreement shall not be impaired by and
Company shall incur no liability on account of the cancellation or
termination of any Bond(s).
5. Indemnitors shall have no rights of indemnity, contribution or right to
seek collection of any other outstanding obligation against any other
Indemnitors or their property until the obligations of the Indemnitors
to Company under this Agreement have been satisfied in full.
6. Company shall have the right, in its sole discretion, (a) to deem this
Agreement breached should any Indemnitors become involved in any
agreement or proceeding of liquidation, receivership, bankruptcy,
insolvency or creditor assignment, whether voluntarily or
involuntarily, or should any Indemnitors, if an individual, die, or be
convicted of a felony, become a fugitive from justice, or for any
reason disappear and cannot immediately be found by Company by use of
usual methods, and (b) to adjust, settle, compromise or defend any
claim, demand, suit or judgment upon any Bond(s).
7. If Company has or obtains collateral or letters of credit, Company
shall not have any obligations to release collateral or letters of
credit or turn over the proceeds thereof until it shall have received a
written release in form and substance satisfactory to Company with
respect to each and every Bond. Any collateral or letters of credit
provided to Company by any Indemnitor or any third party, or the
proceeds thereof, may be applied to any Loss.
8. Indemnitors also understand and agree that their obligations remain in
full force and effect for any Bond(s) issued pursuant to this
Agreement, notwithstanding that the entity on whose behalf Bond(s) were
issued has been sold, dissolved or whose ownership has been otherwise
altered in any way.
9. This Agreement shall remain in full force and effect until terminated.
Indemnitors may only terminate participation in this Agreement by
providing written notice to the Company of Indemnitors' intent to
terminate. Such notice shall be addressed to St. Paul Travelers Bond,
Attention: Senior Vice President Commercial Surety, One Tower Square,
Hartford, Connecticut 06183. Such notice of termination shall become
effective thirty (30) days after Company's receipt of the same. The
obligations and liability of Indemnitors giving such notice shall
thereafter be limited to Bond(s) furnished before the effective date of
the notice, which liability shall include any Bond(s) which were
originally issued prior to the effective date of notice and renewed or
otherwise extended subsequent to the notice or effective date of
termination.
10. (a) As security for their obligations hereunder, Indemnitors grant to
Company a security interest in the following properties, assets and
rights of the Indemnitors (if any), wherever located, whether now owned
or hereafter acquired or arising, and all proceeds and products
thereof:
(1) Any goods (including equipment and inventory) needed to complete
any Bonded Contract;
(2) Any general intangibles (including proprietary software) needed to
complete any Bonded Contract;
(3) All sums which are or may become payable in connection with any
Bonded Contract.
(b) For purposes of this agreement, "Bonded Contract" means an agreement of
Kukui'ula Development Company (Hawaii), LLC for which Company executes
a Bond, procures a Bond, assumes the obligations of a Bond, or has
guaranteed performance.
11. This Agreement shall for all purposes constitute a Security Agreement for
the benefit of Company in accordance with the Uniform Commercial Code
("UCC") and all similar statutes. In the event there is an act of default
under any Bonded Contract, Indemnitors hereby irrevocably authorize
Company, without notice to any Indemnitor, to perfect the security interest
granted herein by filing either (a) this Agreement or a copy or other
reproduction of this Agreement, and/or (b) any initial financing statements
or amendments thereto that describe the collateral referred to in paragraph
10, and that contain any other information relating to any Indemnitor
required by Part 5 of Article 9 of the UCC for the jurisdiction where such
financing statement or amendment is filed. Company may add schedules or
other documents to this agreement as necessary to perfect its rights. The
failure to file or record this Agreement or any financing statement shall
not release or excuse any of the obligations of Indemnitors under this
Agreement.
12. Indemnitors agree that any of the following shall constitute an act of
default:
(a) Failure to perform the work of Bonded Contracts in timely and proper
fashion, or to make payment when due of bills in connection therewith;
(b) A declaration of default by any Bonded Contract owner;
(c) Indemnitors become the subject of any agreement or proceeding of
liquidation, receivership, bankruptcy, insolvency or creditor
assignment, whether voluntarily or involuntarily;
(d) Indemnitors, if an individual, die, or be convicted of a felony, become
a fugitive from justice, or for any reason disappear and cannot
immediately be found by the Company by use of usual methods;
(e) The sustaining of Loss by Company under Bond(s); and/or
(f) The establishment by Company of reserves against Loss in connection
with Bond(s).
13. Whereas, the obligee or beneficiary under certain Bond(s) may make a demand
for payment ("Demand") against the Bond(s). When such Demand is made,
Company must pay the amount of the Demand, not to exceed the penal sum of
the Bond(s), as well as all necessary fees, within the time period required
by the Demand. Under such Bond(s), Company, with the knowledge and consent
of the Indemnitors, has expressly waived all defenses to making such
payment. If the Indemnitors receive notice from Company that a Demand has
been made against the Bond(s) by the obligee or beneficiary, Indemnitors
will, at least three (3) business days before payment of such Demand is due
the obligee, pay Company the full amount of the Demand, which amount shall
not exceed the penal sum of the Bond, as well as all necessary fees. Such
payment will be made by wire transfer or otherwise in immediately available
funds to the bank account specified in the notice provided to the
Indemnitors by Company. The Indemnitors waive, to the fullest extent
permitted by applicable law, each and every right which they may have to
contest such payment. Failure to make payment to Company as herein provided
shall cause the Indemnitors to be additionally liable for any and all costs
and expenses, including but not limited to attorney's fees, incurred by
Company in enforcing this Agreement, together with interest on unpaid
amounts due Company. Interest shall accrue, commencing the date Company
pays the amount of the Demand, at 110% of the prime rate of interest in
effect on December 31 of the previous calendar year as published in the
Wall Street Journal. Indemnitors stipulate and agree that the Company will
suffer immediate irreparable harm and will have no adequate remedy at law
should Indemnitors fail to perform this obligation, and therefore Company
shall be entitled to specific performance of this obligation.
14. Indemnitors hereby expressly authorize Company to access credit records and
to make such pertinent inquiries as may be necessary from third party
sources for underwriting purposes, claim purposes and/or debt collection.
To the extent required by law, Company will, upon request, provide notice
whether or not a consumer report has been requested by Company, and if so,
the name and address of the consumer reporting agency furnishing the
report.
15. In the event of a claim or notice of a potential claim, Company shall have
the right, at all times, to reasonable access to the books, records, and
accounts of the Indemnitors for the purpose of examining the same.
16. Company may furnish copies of any and all statements, agreements, financial
statements and any information which it now has or may hereafter obtain
concerning Indemnitors, to other persons or companies for the purpose of
procuring co-suretyship or reinsurance.
17. A duplicate or facsimile copy or electronic reproduction of the original
document shall have the same force and effect as the original.
18. This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
19. If any provision or portion of this Agreement shall be unenforceable, this
Agreement shall not be void, but shall be construed and enforced with the
same effect as though such provision or portion were omitted.
20. This Agreement is in addition to and not in lieu of any other agreements
and obligations undertaken in favor of Company, whether now existing or
entered into hereafter.
21. The rights and remedies afforded to Company by the terms of this Agreement
can only be impaired by a written rider to this Agreement signed by an
authorized employee of the Company.
22. Company's failure to act to enforce any or all of its rights under this
Agreement shall not be construed as a waiver of these rights.
23. The date of this agreement shall be the earliest date any Indemnitor
executes this Agreement.
24. Special Provisions: Any suit on this Agreement shall be brought in a court
of competent jurisdiction in Honolulu, Hawaii, and indemnitors consent to
such venue and jurisdiction and agree that the laws of the State of Hawaii,
exclusive of its conflict of laws principles, shall govern such litigation.
WE HAVE READ THIS CONTRACT OF INDEMNITY CAREFULLY. THERE ARE NO SEPARATE
AGREEMENTS OR UNDERSTANDINGS WHICH IN ANY WAY LESSEN OUR OBLIGATIONS AS ABOVE
SET FORTH. IN TESTIMONY HEREOF, THE INDEMNITORS HAVE SET THEIR HANDS AND FIXED
THEIR SEALS AS SET FORTH BELOW.
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If Indemnitor a Corporation, Limited Liability Company, Partnership,
or Trust sign below:
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Instructions: All signatures must be notarized. If the entity is: 1) a
Corporation, the Secretary and an Authorized Officer should sign on behalf of
the Corporation; 2) a Limited Liability Company, the Manager or Member(s) should
sign on behalf of the LLC; 3) a Partnership, the Partner(s) should sign on
behalf of the Partnership; or 4) a Trust, all Trustees should sign. Two
signatures are required for all entities except where otherwise instructed by
Company.
Each of the undersigned hereby affirms to Company as follows: I am a secretary
or a duly authorized officer, manager or official of the business entity
Indemnitor on whose behalf I am executing this Agreement. In such capacity I am
familiar with all of the documents which set forth and establish the rights
which govern the affairs, power and authority of such business entity including,
to the extent applicable, the certificate or articles of incorporation, bylaws,
corporate resolutions, and partnership, operating or limited liability
agreements of such business entity. Having reviewed all such applicable
documents and instruments and such other facts as deemed appropriate, I hereby
affirm that such entity has the power and authority to enter into this Agreement
and that I am duly authorized to execute this Agreement on behalf of said
entity.
Kukui'Ula Development Company (Hawaii), LLC 71-0883454
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Indemnitor - Corporation, Limited Liability (Federal Tax ID) Month/Day/Year
Company, Partnership, or Trust (circle one)
By: DMB Kukui'Ula, LLC, an Arizona limited
liability company, Member
By: DMB Communities, LLC, an Arizona limited
liability company, its Sole Member
By: DMB Associates, Inc., an Arizona
Corporation, its manager
By By
(Seal) /s/ Andrew Beams (Seal) /s/ Mary S. Alexander
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(Signature of Authorized Officer) (Signature of Authorized Officer)
Andrew Beams, Vice President Mary S. Alexander, Vice President
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(Print or Type Name and Title) (Print or Type Name and Title)
7600 East Double Tree Ranch Road Arizona
Suite 300,
Scottsdale, AZ 85258
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(Address) (State of Incorporation/Formation)
ACKNOWLEDGEMENT
STATE OF ARIZONA County of MARICOPA
On this 14th day of June, 2006, before me personally appeared Andrew Beams,
known or proven to me to be the Vice President of the (Corporation, Limited
Liability Company, Partnership, or Trust (circle one); hereinafter referred to
as "Entity") and Mary Alexander, known or proven to me to be the Vice President
of the Entity executing the above instrument, and acknowledged said instrument
to be the free and voluntary act and deed of said Entity, for the uses and
purposes therein mentioned and on oath stated that the seal affixed is the seal
of said Entity and that it was affixed and that they executed said instrument
by authority of said Entity. IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my OFFICIAL SEAL the day and year first above written.
/s/ Vanessa Muir
-------------------------------------------------
Notary Public (signature)
Vanessa Muir
-------------------------------------------------
Notary Public (print or type)
Notary Public residing at: Maricopa County, AZ
Commission expires: August 10, 2007
DMB Kukui'Ula LLC, an Arizona limited
liability company 86-0877780
- ------------------------------------------- ----------------------------------
Indemnitor - Corporation, Limited Liability (Federal Tax ID) Month/Day/Year
Company, Partnership, or Trust (circle one)
By: DMB Communities LLC, an Arizona
liability company, its sole Member
By: DMB Associates, Inc., an Arizona
Corporation, its manager
By By
(Seal) /s/ Andrew Beams (Seal) /s/ Mary S. Alexander
- -------------------------------------- ----------------------------------
(Signature of Authorized Officer) (Signature of Authorized Officer)
Andrew Beams, Vice President Mary S. Alexander, Vice President
- -------------------------------------- ----------------------------------
(Print or Type Name and Title) (Print or Type Name and Title)
7600 East Double Tree Ranch Road Arizona
Suite 300,
Scottsdale, AZ 85258
- -------------------------------------- ----------------------------------
(Address) (State of Incorporation/Formation)
ACKNOWLEDGEMENT
STATE OF ARIZONA County of MARICOPA
On this 14th day of June, 2006, before me personally appeared Andrew Beams,
known or proven to me to be the Vice President of the (Corporation, Limited
Liability Company, Partnership, or Trust (circle one); hereinafter referred to
as "Entity") and Mary Alexander, known or proven to me to be the Vice President
of the Entity executing the above instrument, and acknowledged said instrument
to be the free and voluntary act and deed of said Entity, for the uses and
purposes therein mentioned and on oath stated that the seal affixed is the seal
of said Entity and that it was affixed and that they executed said instrument
by authority of said Entity. IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my OFFICIAL SEAL the day and year first above written.
/s/ Vanessa Muir
-------------------------------------------------
Notary Public (signature)
Vanessa Muir
-------------------------------------------------
Notary Public (print or type)
Notary Public residing at: Maricopa County, AZ
Commission expires: August 10, 2007
DMB Communities LLC, an Arizona limited
liability company 86-087780
- ------------------------------------------- ----------------------------------
Indemnitor - Corporation, Limited Liability (Federal Tax ID) Month/Day/Year
Company, Partnership, or Trust (circle one)
By: DMB Associates, Inc., an Arizona
Corporation, its manager
By By
(Seal) /s/ Andrew Beams (Seal) /s/ Mary S. Alexander
- -------------------------------------- ----------------------------------
(Signature of Authorized Officer) (Signature of Authorized Officer)
Andrew Beams, Vice President Mary S. Alexander, Vice President
- -------------------------------------- ----------------------------------
(Print or Type Name and Title) (Print or Type Name and Title)
7600 East Double Tree Ranch Road Arizona
Suite 300,
Scottsdale, AZ 85258
- -------------------------------------- ----------------------------------
(Address) (State of Incorporation/Formation)
ACKNOWLEDGEMENT
STATE OF ARIZONA County of MARICOPA
On this 14th day of June, 2006, before me personally appeared Andrew Beams,
known or proven to me to be the Vice President of the (Corporation, Limited
Liability Company, Partnership, or Trust (circle one); hereinafter referred to
as "Entity") and Mary Alexander, known or proven to me to be the Vice President
of the Entity executing the above instrument, and acknowledged said instrument
to be the free and voluntary act and deed of said Entity, for the uses and
purposes therein mentioned and on oath stated that the seal affixed is the seal
of said Entity and that it was affixed and that they executed said instrument
by authority of said Entity. IN WITNESS WHEREOF, I have hereunto set my hand
and affixed my OFFICIAL SEAL the day and year first above written.
/s/ Vanessa Muir
-------------------------------------------------
Notary Public (signature)
Vanessa Muir
-------------------------------------------------
Notary Public (print or type)
Notary Public residing at: Maricopa County, AZ
Commission expires: August 10, 2007
Alexander & Baldwin, Inc. 99-0032630
- ------------------------------------------- ----------------------------------
Indemnitor - Corporation, Limited Liability (Federal Tax ID) Month/Day/Year
Company, Partnership, or Trust (circle one)
By By
(Seal) /s/ Nelson N. S. Chun (Seal) /s/ Alyson J. Nakamura
- ------------------------------------------- ----------------------------------
(Signature of Authorized Officer) (Signature of Authorized Officer)
Nelson N. S. Chun Senior Vice President Alyson J. Nakamura Secretary
- ------------------------------------------- ----------------------------------
(Print or Type Name and Title) (Print or Type Name and Title)
822 Bishop Street, Honolulu, HI 96813 Hawaii
- ------------------------------------------- ----------------------------------
(Address) (State of Incorporation/Formation)
ACKNOWLEDGEMENT
STATE OF HAWAII City and County of Honolulu
On this 13th day of June, 2006, before me personally appeared Nelson N. S. Chun,
known or proven to me to be the Senior Vice President of the (Corporation,
Limited Liability Company, Partnership, or Trust (circle one); hereinafter
referred to as "Entity") and alyson J. Nakamura, known or proven to me to be the
Secretary of the Entity executing the above instrument, and acknowledged said
instrument to be the free and voluntary act and deed of said Entity, for the
uses and purposes therein mentioned and on oath stated that the seal affixed is
the seal of said Entity and that it was affixed and that they executed said
instrument by authority of said Entity. IN WITNESS WHEREOF, I have hereunto
set my hand and affixed my OFFICIAL SEAL the day and year first above written.
/s/ Patricia M. Kono
-------------------------------------------------
Notary Public (signature)
Patricia M. Kono
-------------------------------------------------
Notary Public (print or type)
Notary Public residing at: Honolulu, Hawaii
Commission expires: 10/1/08
MUTUAL INDEMNIFICATION AGREEMENT
--------------------------------
(KDCH, DMB and A&B)
This Mutual Indemnification Agreement (the "Agreement") is made as of
June 14, 2006, by and among (a) KUKUI`ULA DEVELOPMENT COMPANY (HAWAII),
LLC, a Hawaii limited liability company (the "KDCH Guarantor"), (b) DMB
KUKUI`ULA LLC, an Arizona limited liability company, and DMB COMMUNITIES LLC, an
Arizona limited liability company (jointly and severally, the "DMB Guarantors"),
and (c) ALEXANDER & BALDWIN, INC., a Hawaii corporation (the "A&B Guarantor").
The KDCH Guarantor, the DMB Guarantors, and the A&B Guarantor, are each referred
to herein as a "party", and collectively as the "parties" or the "Guarantors."
RECITALS:
A. KDCH Guarantor is planning, developing, permitting, subdividing, and
constructing on approximately 1,000 acres of real property situated at Koloa,
County and Island of Kauai, State of Hawaii, a mixed use resort community known
as "KUKUI`ULA", and in connection with the planning, development, permitting,
subdivision, construction, and sales of certain planned improvements at
Kukui`ula the KDCH Guarantor has requested that TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, ST. PAUL FIRE AND MARINE INSURANCE COMPANY, and any of their
present or future direct or indirect parent companies, and any of the respective
present or future direct or indirect affiliates or subsidiaries of such
companies and parent companies (collectively herein called the "Sureties")
furnish certain bonds, undertakings, guaranties and/or contractual obligations
in connection with the planning, development, permitting, subdivision,
construction, and sales of Kukui`ula (collectively called the "Bonds").
B. DMB Kukui`ula LLC, an Arizona limited liability company ("DMB
Kukui`ula"), is the managing member of KDCH Guarantor.
C. DMB Communities II LLC, an Arizona limited liability company, is the
sole member of DMB Kukui`ula.
D. DMB Communities LLC, an Arizona limited liability company ("DMB
Communities" is the majority member of DMB Communities II LLC.
E. A&B Guarantor is the ultimate parent company of KDC, LLC, a Hawaii
limited liability company, who is a member of KDCH Guarantor holding a 50%
membership interest therein.
F. As an inducement for and as a condition of Sureties' agreement to
issue the requested Bonds to KDCH Guarantor, the Sureties have required and the
KDCH Guarantor, the DMB Guarantors, and the A&B Guarantor have each executed
that certain General Contract of Indemnity (Commercial Contract - Form B) dated
as of June 13, 2006, in favor of Sureties (the "Contract of Indemnity").
G. By virtue of the Contract of Indemnity, the Guarantors have jointly
and severally promised the Sureties, that (1) all premiums for each of the Bonds
issued by Sureties will be paid as such premium falls due (collectively the
"Premiums"), and (2) to indemnify and exonerate Sureties from and against any
and all loss, costs and expense of whatever kind, including unpaid premiums,
interest, court costs and counsel fees, as well as any expense incurred or
sustained by reason of making any investigation which it may incur or sustain as
a result of or in connection with the furnishing of the Bonds, the assumption of
obligations of the Sureties and/or the enforcement of the Contract of Indemnity
(collectively called a "Loss").
In consideration of the matters described above, and of the mutual
benefits and obligations set forth in this Agreement, the KDCH Guarantors, the
DMB Guarantors, and the A&B Guarantor each covenants and agrees as follows:
AGREEMENT:
1. Agreement Among Guarantors. The KDCH Guarantor, the DMB Guarantors
--------------------------
and the A&B Guarantor agree among themselves that:
a. the KDCH Guarantor shall at all times remain fully liable
for 100% of all payments required to be made to the Sureties under the Contract
of Indemnity on account of the Premiums and/or any Loss, irrespective of the
amounts actually paid by any of the Guarantors to the Sureties or of any amounts
recovered by the Sureties from any of the Guarantors (subject to and except as
provided otherwise in this Agreement); and
b. the DMB Guarantors and the A&B Guarantor shall each be
proportionately liable (60% for the DMB Guarantors, 40% for the A&B Guarantor
(respectively, a "Pro Rata Obligation")) for all payments required to be made to
the Sureties under the Contract of Indemnity if KDCH fails to timely pay the
same to Sureties, irrespective of the amounts actually paid by any of the
Guarantors to the Sureties or of any amounts recovered by the Sureties from any
of the Guarantors (subject to and except as provided otherwise in this
Agreement).
The Guarantors desire through this Agreement to protect themselves against any
event or circumstance which results in any Guarantor paying or becoming
obligated to pay to the Sureties more than its respective Pro Rata Obligation in
relation to the overall amounts paid or owed to the Sureties under the Contract
of Indemnity.
2. Payment to the Sureties. If demand is made by the Sureties upon any
-----------------------
or all parties pursuant to the Contract of Indemnity, then subject to and except
as otherwise provided in this Agreement:
a. the KDCH Guarantor shall pay to the Sureties 100% of the
aggregate amount being demanded by the Sureties within five (5) business days
after any such demand; and
b. in the event that the KDCH Guarantor fails to pay such
demand in its entirety within said 5-business day period, then the DMB
Guarantors and the A&B Guarantor shall concurrently pay the aggregate amount so
demanded in the following proportions: The DMB Guarantors shall pay for 60% of
the total amount to be paid, and the A&B Guarantor shall pay for 40% of the
total amount to be paid.
The foregoing obligations shall not preclude any party from negotiating with the
Sureties in an attempt to reduce the payment to be made by such party, on the
express and continuing conditions that such reduction does not result in any
other party being required to pay more than such party would have been obligated
to pay had such separate negotiation not occurred. In the event any of the
parties is successful with such negotiation, the amount payable to the Sureties
shall be reduced and each party shall pay only its Pro-Rata Obligation of the
total reduced amount to be paid to the Sureties.
3. Indemnification.
---------------
a. Subject to Section 2 above and Section 4 below, the KDCH
Guarantor shall indemnify and hold harmless the DMB Guarantors and the A&B
Guarantor to the extent that the DMB Guarantors and/or the A&B Guarantor pays
any portion of the aggregate amounts owed by the Guarantors collectively to the
Sureties as described in Section 2 above.
b. Subject to Section 2 above and Section 4 below, the DMB
Guarantors shall indemnify and hold harmless the A&B Guarantor to the extent
that the A&B Guarantor pays more than 40% of the aggregate amounts owed by the
Guarantors collectively to the Sureties as described in Section 2 above.
c. Subject to Section 2 above and Section 4 below, the A&B
Guarantor shall indemnify and hold harmless the DMB Guarantors to the extent
that the DMB Guarantors pay more than 60% of the aggregate amounts owed by the
Guarantors collectively to the Sureties as described in Section 2 above.
d. Any amounts payable by the KDCH Guarantor, the DMB
Guarantors or the A&B Guarantor to any other party pursuant to this Section 3
shall be paid within ten (10) business days after the delivery of written demand
therefor by such other party. Any party making any payment directly to the
Sureties pursuant to this Section 3 shall send proof of such payment to the
other parties. Any payment not made within said ten (10) business day period
shall bear interest at the rate of 15% per annum, accruing from the date of
demand until the date paid.
4. Excluded Obligations. The obligations of the parties under Section 3
--------------------
above shall be subject to the following: In no event shall any party be liable
for any liability to the Sureties resulting from any breach by any of the other
parties under the Contract of Indemnity.
5. Term of Agreement. This Agreement shall continue in force so long as
-----------------
the Contract of Indemnity remains in existence and any Bonds issued pursuant
thereto have not been fully discharged.
6. Joint and Several Liability of the DMB Guarantors. The obligations
-------------------------------------------------
of each of the DMB Guarantors hereunder shall be joint and several.
7. Hawaii Law. This Agreement shall be governed by and construed under
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the laws of the State of Hawaii.
8. No Waiver. The waiver by one party of the performance of any
---------
condition or promise shall not be considered a waiver by such party of any other
condition or promise under this Agreement. The waiver by any party of the time
for performing any act shall not constitute a waiver of the time for performing
any other act or the same act required to be performed at a later time.
9. Attorneys' Fees. The prevailing party in any action brought by one
---------------
party against another shall be entitled to recover all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in
enforcing any of the terms and provisions of this Agreement.
10. Interpretation of Agreement. This Agreement has been reviewed by
---------------------------
counsel to each of the parties. No negotiations concerning or modifications made
to prior drafts of this Agreement shall be construed in any manner to limit,
reduce or impair the rights, remedies, duties and obligations of the parties
under this Agreement or to restrict or expand the meaning of any of the
provisions of this Agreement or to construe any of the provisions of this
Agreement in any party's favor.
11. Partial Invalidity. If any provision hereof is held invalid or not
------------------
enforceable to its fullest extent, such provision shall be enforced to the
extent permitted by law, and the validity of the remaining provisions hereof
shall not be affected thereby.
12. Assignees. This Agreement shall be binding upon and inure to the
---------
benefit of the KDCH Guarantor, the DMB Guarantors, and the A&B Guarantor and
each of their respective successors and assigns; provided that no such
assignment shall relieve any party of any liability under this Agreement.
13. Amendments. No amendment to this Agreement shall be valid unless
----------
made in writing and signed by or on behalf of the KDCH Guarantor, the DMB
Guarantors, and the A&B Guarantor.
14. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument, and in making proof of this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart.
15. Notices. All notices, requests, demands or documents which are
-------
required or permitted to be given or served hereunder shall be in writing and
sent by registered or certified mail, postage prepaid, or by courier service,
addressed as stated next to the signature of each party below. Such addresses
may be changed from time to time by the addressee by serving notice as
heretofore provided. Service of such notice or demand shall be deemed complete
on the date of actual delivery (or on the date of attempted delivery if
undeliverable or if delivery is refused).
[SIGNATURES APPEAR ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the KDCH Guarantor, the DMB Guarantors, and the A&B
Guarantor have executed this Agreement as of the day and year first above
written.
KDCH Guarantor: KUKUI`ULA DEVELOPMENT COMPANY
(HAWAII), LLC, a Hawaii limited liability company
BY: DMB KUKUI`ULA LLC, an Arizona limited
liability company
Its Managing Member
BY: DMB COMMUNITIES II LLC, an Arizona
limited liability company
Its Sole member
BY: DMB ASSOCIATES, INC., an
Arizona corporation
Its Manager
By /s/ Andrew Beams
--------------------------
Name: Andrew Beams
--------------------
Title: VP
-------------------
Address for Notices:
7600 East Doubletree Ranch Road
Scottsdale, Arizona 85258
Attn: General Counsel
Fax No. (480) 367-9788
DMB Guarantors:
DMB Kukui`ula: DMB KUKUI`ULA LLC, an Arizona limited liability
company
BY: DMB COMMUNITIES II LLC, an Arizona limited
liability company
Its Sole member
BY: DMB ASSOCIATES, INC., an Arizona
corporation
Its Manager
By /s/ Andrew Beams
--------------------------
Name: Andrew Beams
--------------------
Title: VP
-------------------
Address for Notices:
7600 East Doubletree Ranch Road
Scottsdale, Arizona 85258
Attn: General Counsel
Fax No. (480) 367-9788
DMB Communities: DMB COMMUNITIES, LLC, an Arizona limited liability
company
BY: DMB ASSOCIATES, INC., an Arizona corporation,
Its Manager
By /s/ Andrew Beams
--------------------------
Name: Andrew Beams
--------------------
Title: VP
-------------------
Address for Notices:
7600 East Doubletree Ranch Road
Scottsdale, Arizona 85258
Attn: General Counsel
Fax No. (480) 367-9788
A&B Guarantor: ALEXANDER & BALDWIN, INC.
a Hawaii corporation
By /s/ Nelson N. S. Chun
-------------------------------
Name: Nelson N. S. Chun
-------------------------
Title: Senior Vice President
------------------------
By /s/ Alyson J. Nakamura
-------------------------------
Name: Alyson J. Nakamura
-------------------------
Title: Secretary
------------------------
Address for Notices:
822 Bishop Street
Honolulu, HI 96813
Attn: Chief Legal Officer
Fax No. (808) 525-6678