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EXHIBIT C
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of the 17th day of
November, 1995, by and between RIVERSIDE PARTNERSHIP, an Illinois general
partnership ("Partnership"), THE ENVIRONMENTAL PRIVATE EQUITY FUND II, L.P., a
Delaware limited partnership ("EPEF"), and PRODUCTIVITY FUND III, L.P., a
Delaware limited partnership ("PF-III").
W I T N E S S E T H
WHEREAS, LaSalle National Bank (the "Bank") intends to loan funds to
RIVERSIDE L.L.C., an Illinois limited liability company ("RLLC") pursuant to
the terms and conditions of a loan agreement dated November 17, 1995 (the
"Loan");
WHEREAS, RLLC will to use the proceeds of the Loan to purchase shares of
common stock of Utilities, Inc. and ▇▇▇▇▇▇▇ Associates, Inc., which shares of
common stock will stand as collateral security for the Loan and will be
contributed (subject to the Loan) by RLLC to the Partnership, which is a
partnership formed by and between PF-III, EPEF and RLLC;
WHEREAS, as a condition to making the Loan and permitting the transfer of
common stock as aforesaid, the Bank requires that PF-III and EPEF guaranty the
obligations of RLLC under the Loan to the Bank; and
WHEREAS, in consideration for their respective guaranties, PF-III and EPEF
require that the Partnership indemnify PF-III and EPEF for any and all loss,
cost, damage or expense incurred by them in connection with their respective
guaranties;
NOW, THEREFORE, in consideration of the premises set forth above, the
parties hereto agree as follows:
A G R E E M E N T S
1. Indemnification. The Partnership agrees to indemnify and hold each of
PF-III and EPEF harmless from and against any and all loss, cost, damage or
expense (including reasonable attorneys' fees and costs of litigation) suffered
by them resulting from or incident to (a) any breach by RLLC of any covenant,
condition, representation, warranty or other provision of or in connection with
the Loan, (b) any inaccuracy or misrepresentation in or breach of any of the
warranties, representations, covenants or agreements made by RLLC in connection
with the Loan or in any certificate, document or instrument delivered by RLLC
in accordance with the Loan, whether or not such inaccuracy or breach was known
to, or should have been known by, PF-III or EPEF, or (c) any liabilities or
obligations of either PF-III or EPEF, including without limitation those
arising from or relating to, or arising in any manner from the guaranty by
PF-III and EPEF of the obligations of RLLC under or in connection with the
Loan.
2. Defense of Claims. In the event that any proceeding shall be
instituted or any claim or demand shall be asserted by any person against
PF-III or EPEF in respect of which
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indemnification may be sought under the provisions of this Agreement (the
"Indemnified Party"), the Indemnified Party shall cause written notice thereof
to be given to the Partnership. Notwithstanding the foregoing, the right to
indemnification hereunder shall not be affected by any delay in giving notice.
In the event of such claim, demand or legal proceeding, the Partnership shall
have the right to employ at its expense such counsel as is acceptable to the
Indemnified Party to defend any such claim, demand or legal proceeding asserted
against such Indemnified Party, and the Indemnified Party shall have the right
to participate in the defending in good faith of any such claim, demand or
legal proceeding; and so long as the Partnership is defending such claim,
demand or legal proceeding in good faith, the Partnership will not settle such
claim, demand or legal proceeding without the written consent of the
Indemnified Party, which shall not be unreasonably withheld. The Indemnified
Party will make available to the Partnership or its representatives all records
and other materials required by them for their use in contesting any claim,
demand or legal proceeding asserted by a third party against the Indemnified
Party. Whether or not the Partnership so elects to defend any such claim,
demand or legal proceeding, the Indemnified Party shall not have an obligation
to do so.
3. Notices. Unless stated otherwise herein, all notices provided for
herein shall be given in writing and shall be delivered personally or
telecopied, expressed or mailed, with postage or other delivery charges
prepaid, as follows:
If to the Partnership:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Tower
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to PF-III:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to EPEF:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Notices shall be effective (a) upon receipt, if delivered personally or
telecopied, (b) on the first business day after having been given to a
recognized overnight courier service, or (c) three (3) business days after
deposit in a regular receptacle for the United States mail, certified mail,
return receipt requested, postage prepaid. Any party hereto may specify a new
address for notice by giving notice of change of address to all other parties
in accordance with this Section 3.
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4. Governing Law. This Agreement has been executed and delivered in, and
shall be governed by and construed in accordance with, the laws of the State of
Illinois for agreements to be wholly performed in that State (i.e., without
application of such State's conflicts of laws provisions).
5. Headings. The titles of the Sections have been inserted as a matter of
convenience of reference only, and shall not control or affect the meaning or
construction of this Agreement.
6. Waiver of Rights. The failure or delay of any party hereto at any time
or times hereafter to require strict performance by another party hereto (as
applicable) of any of the provisions, terms and conditions contained in this
Agreement shall not waive, affect or diminish any right of any party at any
time or times thereafter to demand strict performance hereof, and such right
shall not be deemed to have been waived by any act or knowledge of any party,
their respective agents, officers or employees, unless such waiver is contained
in an instrument in writing signed by such party and directed to any other
party (as applicable) specifying such waiver. No waiver by any party hereto of
any failure to perform pursuant to the terms hereunder shall operate as a
waiver of any other or the same failure to perform pursuant to the terms
hereunder on a future occasion. No single or partial exercise by any party of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy.
7. Choice of Forum and Venue. ALL ACTIONS OR PROCEEDINGS ARISING DIRECTLY
OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS AGREEMENT
SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE UNITED STATES OF AMERICA,
STATE OF ILLINOIS, COUNTY OF ▇▇▇▇. EACH OF THE PARTIES HERETO HEREBY CONSENTS
AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED
WITHIN SUCH COUNTY. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT HE OR SHE MAY
HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST HIM OR
HER OR BROUGHT BY HIM OR HER IN ACCORDANCE WITH THIS SECTION.
8. Waiver of Jury Trial. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHTS THAT EACH MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT DELIVERED TO THE OTHERS AS
OF THE DATE HEREOF, PRIOR THERETO OR THEREAFTER, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY
HERETO. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT HE OR SHE HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF THIS AGREEMENT AND EACH OTHER DOCUMENT TO WHICH HE OR SHE IS NOW OR WILL BE
IN THE FUTURE A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
EACH PARTY ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER DOCUMENT.
9. Execution of Additional Instruments. Each party hereto shall execute
such other and further designations, powers of attorney and other instruments
necessary to comply with any applicable laws.
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10. Construction. Whenever the singular tense is used in this Agreement
and when required by the context, the same shall include the plural and vice
versa, and the masculine gender shall include the feminine and neuter genders
and vice versa.
11. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by applicable law.
12. Heirs, Successors and Assigns. Each and all of the covenants, terms,
provisions and agreements herein contained shall be binding upon and inure to
the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
assigns.
13. Beneficiaries of Agreement. The rights and obligations contained in
this Agreement are hereby declared by the parties hereto to have been provided
expressly for the exclusive benefit of such persons as set forth herein, and
shall not benefit, and do not benefit, any unrelated third parties.
14. Integrated Agreement. This Agreement is intended to be the sole
agreement of the parties hereto with respect to the matters contained herein.
15. Amendment. This Agreement may be amended only by a written instrument
of amendment which is signed by all parties hereto and which expressly refers
to this Section 15. No course of dealing, action or inaction shall be
effective as an amendment of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be treated as an original, but all of which,
collectively, shall constitute a single document.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first set forth above.
THE ENVIRONMENTAL PRIVATE EQUITY FUND II, L.P.
By: ENVIRONMENTAL PRIVATE EQUITY
MANAGEMENT II, L.P., its General Partner
By: FIRST ANALYSIS EPEF MANAGEMENT
COMPANY II, its Managing General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner
PRODUCTIVITY FUND MANAGEMENT COMPANY III,
L.L.C., its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Member
RIVERSIDE PARTNERSHIP
By: RIVERSIDE L.L.C., its Managing General Partner
By: FIRST ANALYSIS MANAGEMENT COMPANY
III, L.L.C. its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Member
