EXHIBIT 10.25
CERTIFICATION AND INDEMNIFICATION OF LOST PROMISSORY NOTE
This Certification and Indemnification of Lost Promissory Note (this
"Certification"), dated February 22, 2002, is made and entered into by and
between Bankrate, Inc., a Florida corporation, f/k/a Intelligent Life
Corporation ("Bankrate"), and Reassure America Life Insurance Company
("REALIC"), successor by merger to The Midland Life Insurance Company
("Midland").
RECITALS:
X. Xxxxxxxx previously executed and delivered that certain "10% Convertible
Subordinated Note Due 2004" dated August 20, 1999 (the "Note") in favor of
Midland in the amount of Four Million Three Hundred Fifty Thousand and No/100
Dollars ($4,350,000.00), plus interest accruing at a rate per annum of ten
percent (10%), a true and correct copy of which is attached to this
Certification as Exhibit A.
B. Pursuant to that certain Termination Agreement and General Release dated
as of February 6, 2002 (the "Termination Agreement"), by and among Bankrate,
REALIC and Gunster, Xxxxxxx & Xxxxxxx, P.A., a Florida professional association,
solely as escrow agent (the "Escrow Agent"), Bankrate agreed to pay REALIC Three
Million Four Hundred Thousand and No/100 Dollars ($3,400,000.00) as repayment in
full of the Note, and REALIC agreed to forgive the remaining indebtedness under
the Note.
C. The Termination Agreement requires REALIC to deliver to the Escrow Agent
the originally executed Note marked "CANCELLED".
X. XXXXXX has misplaced and is unable to locate the originally executed
Note.
X. Xxxxxxxx requested REALIC to provide, and REALIC agreed to provide, this
Certification and a copy of the executed Note marked cancelled in lieu of the
originally executed Note to confirm the full payment and satisfaction of the
Note.
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, warranties, covenants, agreements, terms and conditions set
forth in this Certification, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties, intending to
be legally bound, agree as follows:
1. Recitals. The foregoing recitals are true and complete in all material
respects and are hereby incorporated into this Certification.
2. REALIC's Representations, Warranties, Covenants and Agreements. REALIC
represents, warrants, covenants and agrees as follows:
A. The Note is paid in full;
B. The Note and/or any right, title or interest in or to the Note has not
been sold, pledged, hypothecated, assigned or otherwise transferred or
encumbered;
C. REALIC is not bound by any contract, agreement, covenant or other
obligation that may or does prevent it in any manner from performing its
obligations pursuant to this Certification;
64
D. The officer of REALIC executing and delivering this Certification is
duly authorized by REALIC to execute and deliver this Certification, and all
approvals and/or consents required to enable such officer to execute and deliver
this Certification have been obtained by REALIC;
E. REALIC and its legal representatives, successors and assigns shall, at
all times after the date of this Certification, indemnify and hold harmless
Bankrate and its respective officers, directors, shareholders, employees,
contractors, affiliates, successors, assigns, representatives, attorneys and
agents (collectively, the "Bankrate Group") from, against and in respect of any
and all damages, claims, losses, liabilities and reasonable expenses (including,
without limitation, legal, accounting and other expenses) incurred by any member
of the Bankrate Group which may arise out of, or in respect of (i) any violation
or breach of this Certification by REALIC, (ii) any falsity, inaccuracy or
misrepresentation set forth by REALIC in this Certification, and/or (iii) any
effort or claim (with or without merit) by any government, person, firm, entity
or group to collect any amount pursuant to the Note. In the event that
indemnification is sought by a member(s) of the Bankrate Group pursuant to this
Section 2(E), such indemnified party(ies) shall be entitled to select their own
legal counsel in their sole discretion, and the services of such legal counsel
shall be at the sole cost of REALIC; and
X. Xxxxxxx the execution and delivery of this Certification, nor the
performance of REALIC's obligations pursuant to this Certification, shall
contravene, conflict with, or result in a violation of (i) any of REALIC's
organizational or governing documents or (ii) any law, rule or regulation
applicable to REALIC.
3. Miscellaneous.
A. Only Written Amendments to this Certification Are Permitted. The
provisions of this Certification may not be amended, supplemented, waived or
changed orally, but only by a writing signed by the parties and making specific
reference to this Certification.
B. Assignment Under this Certification. REALIC may not assign its
obligations pursuant to this Certification without the prior written consent of
Bankrate. Bankrate may assign its rights pursuant to this Certification without
prior notice to REALIC.
C. This Certification is Governed by the Laws of Florida. This
Certification and all transactions contemplated by this Certification shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of Florida, without regard for principles of conflicts of laws.
D. Jurisdiction and Venue for any Legal Action Shall Be in Palm Beach
County, Florida. Any civil action or legal proceeding arising out of or relating
to this Certification shall be brought in the courts of record of the State of
Florida in Palm Beach County or the United States District Court, Southern
District of Florida, West Palm Beach Division. Each party consents to the
jurisdiction of such court in any such civil action or legal proceeding and
waives any objection to the laying of venue of any such civil action or legal
proceeding in such court. Service of any court paper may be effected on such
party by mail, as provided in this Certification, or in such other manner as may
be provided under applicable laws, rules of procedure or local rules.
E. Headings in this Certification are for Convenience Only. The headings
contained in this Certification are for convenience of reference only. The
headings are not considered a part of this Certification and shall not limit or
affect in any way the meaning or interpretation of this Certification.
F. Binding Effect. All of the terms and conditions of this Certification
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective legal representatives, successors, and permitted
assigns, whether so expressed or not.
65
G. Survival. All representations, warranties, covenants and agreements made
--------
in this Certification or otherwise made in writing by any party pursuant to this
Certification shall survive the execution and delivery of this Certification and
the consummation of the transactions contemplated by this Certification.
X. Xxxxxxx. The failure or delay of a party to at any time require
-------
performance by another party of any provision of this Certification, even if
known, shall not affect such party's right to require performance of that
provision or to exercise any of its rights, powers or remedies pursuant to this
Certification. Any waiver by a party of any breach of any provision of this
Certification shall not be construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision itself, or a waiver of any
right, power or remedy under this Certification.
I. Counterparts. This Certification may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Confirmation of execution
by electronic transmission of a facsimile signature page shall be binding upon
any party so confirming.
J. Further Assurances. The parties shall from time to time execute and
------------------
deliver such further and other transfers, assignments and documents, and do all
matters and things, which may be convenient or necessary to more effectively and
completely carry out the intentions of this Certification.
K. No Construction Against Draftsmen. The parties acknowledge that this is
---------------------------------
a negotiated agreement, and that in no event shall the terms of this
Certification be construed against any party on the basis that such party, or
its counsel, drafted this Certification.
L. Advice of Counsel. The parties acknowledge that they have had the
-----------------
opportunity to consult with a lawyer regarding any questions or concerns that
they may have with regard to this Certification. The parties represent that they
have either done so, or knowingly declined to do so.
M. Enforcement Costs. If any civil action, arbitration or other legal
-----------------
proceeding is brought for the enforcement of this Certification, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
provision of this Certification, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees, sales and use taxes,
court costs and all expenses even if not taxable as court costs (including,
without limitation, all such fees, taxes, costs and expenses incident to
arbitration, appellate, bankruptcy and post-judgment proceedings), incurred in
that proceeding, in addition to any other relief to which such party or parties
may be entitled. Attorneys' fees shall include, without limitation, paralegal
fees, investigative fees, administrative costs, sales and use taxes and all
other charges billed by the attorney to the prevailing party.
N. This Certification is the Entire Understanding. This Certification and
----------------------------------------------
its Exhibit A and the Termination Agreement represent the entire understanding
---------
and agreement between the parties with respect to the subject matter of the
same, and supersede all other negotiations, understandings and representations,
written or oral, (if any) made by and between such parties.
[SIGNATURES ON THE FOLLOWING PAGE]
66
The parties have executed this Certification as of the day and year first
above written.
BANKRATE:
Bankrate, Inc.
By:/s/ Xxxxxx X. XxXxxxxx
-----------------------
Name: Xxxxxx X. XxXxxxxx
------------------
Title: Senior Vice President-CFO
-------------------------
REALIC:
Reassure America Life Insurance Company
By:/s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
--------------------
Title: Senior Vice President
---------------------
67
