Exhibit 10.24
TERMINATION AGREEMENT AND GENERAL RELEASE
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This TERMINATION AGREEMENT AND GENERAL RELEASE (this "Agreement"), dated
February 6, 2002, is made and entered into by and between Bankrate, Inc., a
Florida corporation f/k/a Intelligent Life Corporation ("Bankrate"), Reassure
America Life Insurance Company ("REALIC"), successor by merger to The Midland
Life Insurance Company ("Midland"), and GUNSTER, YOAKLEY & XXXXXXX, P.A., a
Florida professional association, solely as escrow agent (the "Escrow Agent").
RECITALS
A. Bankrate had previously executed and delivered that certain "10%
Convertible Subordinated Note Due 2004" dated August 20, 1999 (the "Note"), in
favor of Midland.
B. Pursuant to the terms of the Note, Bankrate agreed to pay Midland in one
installment on or before August 20, 2004, the aggregate principal sum 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%).
C. Bankrate desires 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
desires to forgive the remaining in indebtedness under the Note.
D. Bankrate and REALIC each desire to release the other and related parties
with regard to the Note. NOW, THEREFORE, in consideration of the foregoing
recitals and the representations, warranties, covenants, agreements, terms and
conditions set forth in this Agreement, 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. Escrow Deposits. Each of Bankrate and REALIC agree that by no later than
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February 22, 2002 each of Bankrate and REALIC:
(A) Each will deliver to the Escrow Agent two (2) copies of this
Agreement executed by such party to be held in escrow pursuant to this Agreement
(each, an "Executed Agreement");
(B) Bankrate will send Three Million Four Hundred Thousand and
No/Dollars ($3,400,000.00) by wire transfer of immediately available funds to
the Escrow Agent pursuant to the following instructions: Wachovia Bank, N.A.
Palm Beach, Florida, ABA: 000000000, Account Name: Gunster, Yoakley & Xxxxxxx,
P.A. IOTA Account, Account Number: 00-000-000 to be held in escrow pursuant to
this Agreement (the "Escrowed Funds"); and
(C) REALIC will deliver the originally executed Note to the Escrow
Agent at 000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx, Xxxx Xxxx Xxxxx, XX 00000, to
be held in escrow pursuant to this Agreement (the "Escrowed Note").
2. Maintenance of Escrow. The Executed Agreements, the Escrowed Funds and
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the Escrowed Note shall be disbursed as set forth in Section 3.
3. Disbursement by the Escrow Agent. Upon the Escrow Agent's receipt of the
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Executed Agreements, the Escrowed Funds and the Escrowed Note as set forth
above, the Escrow Agent shall promptly disburse those items as follows:
(A) One (1) fully executed copy of the Executed Agreement shall be
delivered to Swiss Re Investors, 00 XXXX 00xx Xxxxxx, Xxx Xxxx, XX 00000 and the
Escrowed Funds shall be disbursed by wire transfer of immediately available
funds to an account designated in writing by REALIC; and
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(B) One (1) fully executed copy of the Executed Agreement and the
Escrowed Note shall be delivered to Bankrate c/o Xxxxxx X. XxXxxxxx at 00000
X.X. Xxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxx Xxxxx, XX 00000.
(C) If the Escrow Agent does not receive the Executed Agreements, the
Escrowed Funds and the Escrowed Note by 4:00 p.m. (EST) February 22, 2002, then
this Agreement shall be null and void and have no further force and effect and
the Escrow Agent shall promptly disburse any and all of the Executed Agreements,
the Escrowed Funds and/or the Escrowed Note in its possession to the respective
original sender of the same.
4. Acknowledgments. Each of Bankrate and REALIC agree as follows:
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(A) As of the date of this Agreement, the outstanding principal
balance plus accrued interest under the Note is $5,421,792.00 (See Exhibit A of
this Agreement);
(B) Bankrate has agreed to pay REALIC $3,400,000.00 as repayment in
full of the Note;
(C) REALIC hereby forgives the remaining indebtedness due and owing to
REALIC by Bankrate under the Notes; and
(D) Each party desires to terminate the Note and any and all rights
the parties may have pursuant to the Note, including, without limitation, rights
of conversion, rights of registration, and rights to payment of additional
interest on the Note.
5. General Release By REALIC. Subject only to receipt of a fully executed
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copy of the Executed Agreement and the Escrowed Funds from the Escrow Agent
pursuant to Section 3(A) above, REALIC hereby remises, releases, acquits,
satisfies and forever discharges Bankrate and its respective affiliates,
officers, directors, shareholders, employees, contractors, agents,
representatives and attorneys (the "Bankrate Released Parties") from all, and
all manner of action and actions, cause and causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
liens, judgments, executions, liabilities, responsibilities, claims and demands
whatsoever, in law or in equity, whether matured or unmeasured, known or
unknown, and the consequences thereof, which REALIC ever had, now has, or may
have against the Bankrate Released Parties related to the Note.
6. General Release by Bankrate. Subject only to receipt of a fully executed
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copy of the Executed Agreement and the Escrowed Note from the Escrow Agent
pursuant to Section 3(B) above, Bankrate hereby remises, releases, acquits,
satisfies and forever discharges REALIC and its respective affiliates, officers,
directors, shareholders, employees, contractors, agents, representatives and
attorneys (the "REALIC Released Parties") from all, and all manner of action and
actions, cause and causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, liens,
judgments, executions, liabilities, responsibilities, claims and demands
whatsoever, in law or in equity, whether matured or unmeasured, known or
unknown, and the consequences thereof, which Bankrate ever had, now has, or may
have against the REALIC Released Parties related to the Note.
7. The Escrow Agent. To induce the Escrow Agent to act under this
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Agreement, it is further agreed by Bankrate and REALIC that:
(A) The Escrow Agent shall not be under any duty to give the Executed
Agreements, the Escrowed Funds or the Escrowed Note held by it under this
Agreement any greater degree of care than it gives its own similar property and
shall not be required to invest any funds held under this Agreement except as
directed in this Agreement;
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(B) This Agreement expressly sets forth all the duties of the Escrow
Agent with respect to any and all matters pertinent to this Agreement. No
implied duties or obligations shall be read into this Agreement against the
Escrow Agent. The Escrow Agent shall not be bound by the provisions of any other
agreement among the other parties to this Agreement except this Agreement;
(C) The Escrow Agent shall have no liability with regard to any duty
under this Agreement nor be responsible for the loss of the Executed Agreements,
the Escrowed Funds or the Escrowed Note except in the event of willful and
intentional misconduct on the part of the Escrow Agent. Bankrate and REALIC
shall jointly and severally indemnify and hold harmless the Escrow Agent (and
any successor escrow agent) from and against any and all losses, liabilities,
claims, actions, damages and expenses, including reasonable attorneys' fees and
disbursements, arising out of and in connection with this Agreement;
(D) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other writing delivered
to it pursuant to this Agreement without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety or
validity of the service thereof. The Escrow Agent may act in reliance upon any
instrument or signature believed by it to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so;
(E) The Escrow Agent may act pursuant to the advice of counsel with
respect to any matter relating to this Agreement, and shall not be liable for
any action taken or omitted in accordance with such advice;
(F) The Escrow Agent does not have any interest in the Executed
Agreements, the Escrowed Funds or the Escrowed Note deposited under this
Agreement and is serving as escrow agent only;
(G) The Escrow Agent shall have no responsibility for the contents of
any writing of any third party contemplated in this Agreement as a means to
resolve disputes, and may rely without any liability upon the contents of such
writing;
(H) Notwithstanding its duties pursuant to this Agreement, the Escrow
Agent shall have the right to represent Bankrate as legal counsel, including,
without limitation, in connection with any dispute arising under this Agreement.
(I) Notwithstanding the provisions of Section 3 of this Agreement, in
the event of any disagreement among or between Bankrate and REALIC resulting in
adverse claims or demands being made in connection with the Executed Agreements,
the Escrowed Funds or the Escrowed Note, or in the event that the Escrow Agent
is in doubt as to what action it should take under this Agreement, the parties
agree and acknowledge that the Escrow Agent shall have the right to (i)
interplead all or any portion of the Escrowed Funds with the Circuit Court in
and for Palm Beach County, Florida; (ii) seek a final and non-appealable order
of a court of competent jurisdiction directing delivery of the Executed
Agreements, the Escrowed Funds or the Escrowed Note; or (iii) obtain a written
agreement executed by Bankrate and REALIC directing delivery of the Executed
Agreements, the Escrowed Funds or the Escrowed Note, in which event the Escrow
Agent shall disburse the Executed Agreements, the Escrowed Funds or the Escrowed
Note in accordance with such order or agreement. Any court order resulting from
or referred to by any action taken pursuant to clauses (i) or (ii) of this
Section 7(I) shall be accompanied by a legal opinion by counsel for the
presenting party, satisfactory to the Escrow Agent, to the effect that said
court order is final and non-appealable. The Escrow Agent shall act on such
court order and legal opinion without further question; and
(J) The Escrow Agent may resign from its position as escrow agent at
any time, for any reason or for no reason, and without prior notice; and
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(K) Except as may otherwise be provided in this Agreement, the Escrow
Agent's obligations pursuant to this Agreement shall terminate upon the
completion of disbursements pursuant to Section 3 above.
8. Miscellaneous.
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(A) Only Written Amendments to this Agreement Are Permitted. The
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provisions of this Agreement may not be amended, supplemented, waived or changed
orally, but only by a writing signed by the parties and making specific
reference to this Agreement.
(B) Assignment of Obligations Under this Agreement. With the exception
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of the Escrow Agent, no party may assign its obligations pursuant to this
Agreement.
(C) This Agreement is Governed by the Laws of Florida. This Agreement
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and all transactions contemplated by this Agreement 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
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County, Florida. Any civil action or legal proceeding arising out of or relating
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to this Agreement 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. 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
Agreement, or in such other manner as may be provided under applicable laws,
rules of procedure or local rules.
(E) Headings in this Agreement are for Convenience Only. The headings
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contained in this Agreement are for convenience of reference only. The headings
are not considered a part of this Agreement and shall not limit or affect in any
way the meaning or interpretation of this Agreement.
(F) Binding Effect. All of the terms and provisions of this Agreement
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shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective legal representatives, successors, heirs and
permitted assigns, whether so expressed or not.
(G) Survival. All covenants, agreements, representations and
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warranties made in this Agreement or otherwise made in writing by any party
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement.
(H) Waivers. The failure or delay of a party to at any time require
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performance by another party of any provision of this Agreement, 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 Agreement.
Any waiver by a party of any breach of any provision of this Agreement 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 Agreement.
(I) Counterparts. This Agreement may be executed in one or more
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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
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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 Agreement.
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(K) No Construction Against Draftsmen. The parties acknowledge that
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this is a negotiated agreement, and that in no event shall the terms of this
Agreement be construed against any party on the basis that such party, or its
counsel, drafted this Agreement.
(L) Advice of Counsel. The parties acknowledge that they have had the
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opportunity to consult with a lawyer regarding any questions or concerns that
they may have with regard to this Agreement. 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
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proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, 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 Agreement is the Entire Understanding. This Agreement
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represents the entire understanding and agreement between the parties with
respect to the subject matter of the same, and supersedes all other
negotiations, understandings and representations, written or oral, (if any) made
by and between such parties, including, without limitation, the Note.
[SIGNATURES ON THE FOLLOWING PAGE]
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The parties have executed this Agreement as of the day and year first above
written.
BANKRATE:
Bankrate, Inc.
By:/s/Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx
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Title:Senior Vice President
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Chief Financial Officer
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REALIC:
Reassure America Life Insurance Company
By: Swiss Re Investors, Inc. as Attorney-In-Fact
By:/s/Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
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Title:Senior Vice President
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THE ESCROW AGENT:
Gunster, Yoakley & Xxxxxxx, P.A.
By:/s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, For the Firm
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