Exhibit 10.1


 


TERMINATION OF LEASE


 


THIS AGREEMENT is made and entered into and
dated for purposes of reference as of March 20, 2009, between LANDMARK
BUILDING ONE, LLC, a California limited liability company, (“Landlord”) and
OVERSTOCK.COM, INC., a Delaware corporation (“Tenant”).


 


RECITALS:


 


WHEREAS, on or about February 16, 2006,
Tenant entered into that certain Lease Agreement (the “Lease”) with Natomas
Towne Center, LLC, a California limited liability company, as landlord; and


 


WHEREAS, on or about November 15, 2007,
Natomas Towne Center, LLC assigned all of its right, title and interest in and
to the Lease to Landlord; and


 


WHEREAS, Tenant desires to terminate the
Lease, as amended; and Landlord has agreed to such termination.


 


NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Landlord
and Tenant hereby agree as follows:


 


1.             Incorporation of Recitals. The parties agree that
the foregoing Recitals are true and correct and incorporated in this Agreement
by reference.


 


2.             Effective Date. The parties agree that the
effective date of the termination (the “Effective Date”) shall be
February 28, 2009.


 


3.             Termination of Lease. On the Effective Date of
this Agreement, the Lease, as amended, shall be fully and finally surrendered
and terminated. Tenant shall be deemed to have surrendered possession of the
Premises to Landlord in accordance with the provisions of the Lease on the
Effective Date. Tenant agrees to remove all personal property from the Leased Premises,
and shall deliver possession of the Leased Premises to Landlord on or before
the Effective Date, broom clean and in as good condition as at the time Tenant
first took possession thereof, normal wear and tear accepted. In the event
Tenant shall not deliver the Leased Premises to Landlord as described in this
paragraph 3, then Landlord reserves all rights and remedies to restore the
Leased Premises and/or to recover possession of the Leased Premises as provided
in the Lease (as amended) and under applicable law.


 


4.             Release of Liability. As of the Effective Date,
Landlord and Tenant shall be released and discharged from their respective
obligations arising from or connected with the provisions of the Lease, except
as otherwise set forth herein or in the Lease. This Termination of Lease shall
fully and finally settle all demands, charges, claims, accounts, or causes of
action of any nature, including without limitation, both known and unknown
claims and causes of action that arose out of or in connection with the Lease;
and except as otherwise described herein, constitutes a mutual release with
respect to the Lease.


 


5.             Representations of Parties. Each party represents
that, except as described in the Recitals above, it has not encumbered or made
any assignment, sublease, transfer, conveyance,


 

















 


or other disposition of the Lease, or
interest in the Lease, or any claim, demand, obligation, liability, action or
cause of action arising from the Lease. Each of the parties, and the
individuals signing on behalf of the parties, represents and warrants that it
has full right, power, and corporate authority to enter into and perform the
terms hereof.


 


6.             Miscellaneous. Time is of the essence of this Agreement.
This Agreement shall be governed by the laws of the State of Utah. Salt Lake
County, Utah shall be the proper venue for any litigation involving this
Agreement. This is the entire agreement between the parties and may not be
modified or amended except by written document signed by the party against whom
enforcement is sought. This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of
this Agreement. Delivery of a signed counterpart of this Agreement by facsimile
shall be the same as delivery of an original signed counterpart. Paragraph
headings are for convenience only and are not intended to expand or restrict
the scope or substance of the provisions of this Agreement. The prevailing
party in any litigation, arbitration or mediation relating to this Agreement
shall be entitled to recover its reasonable costs and attorneys’ fees from the
other party for all matters, including but not limited to bankruptcy
proceedings and appeals.


 


IN WITNESS WHEREOF, this Termination of Lease
is executed as of the date set forth in the first paragraph above.


 


	
  LANDLORD:

  	
  LANDMARK BUILDING ONE, LLC,

  
	
   

  	
  a California limited liability
  company

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Kern Schumacher

  
	
   

  	
  Its

  	
  Managing Member

  
	
   

  	
   

  
	
  TENANT:

  	
  OVERSTOCK.COM, INC,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jonathan E. Johnson, III

  
	
   

  	
  Its

  	
  President

  



 


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