$250,000 IS
UNCONDITIONALLY DUE AND PAYABLE UPON THE TERMINATION OF THE LOAN AGREEMENT AND
(II) NOTWITHSTANDING THE LENDER'S AGREEMENT TO WAIVE PAYMENT OF THE APPLICABLE
PREPAYMENT PENALTY IN ACCORDANCE WITH THE TERMS OF THIS LETTER AGREEMENT, IN THE
EVENT THAT THE PAYOUT CONDITIONS HAVE NOT BEEN SATISFIED BY 5:00 PM BOSTON TIME
ON THE PAYOFF DATE, THEN (X) THE PAYOUT AMOUNT SHALL NO LONGER BE VALID AND
(Y) THE LENDER'S AGREEMENT TO WAIVE PAYMENT OF THE APPLICABLE PREPAYMENT PENALTY
SHALL BE NULL AND VOID AB INITIO.
4.
THE PAYOUT AMOUNT MUST BE REMITTED BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS, FOR RECEIPT BY NO LATER THAN THE
PAYOFF DATE, AS FOLLOWS:
Bank:
Wells Fargo Bank
ABA #:
Acct. #:
Acct. Name:
Wells Fargo Retail Finance LLC
Ref/Attn:
Overstock.com
The Lender believes that the Payout Amount reflects all amounts (other than the
Applicable Prepayment Penalty) currently owed by the Borrower to the Lender.
Notwithstanding the release of the Lender's security interests upon the
satisfaction of the Payout Conditions in accordance with Paragraph 2 above, the
Borrower will remain liable to the Lender for any expenses incurred in
connection with the release of its security interests and liens, and for any
interest, fees, expenses or other amounts which may have been omitted in error
from the Payout Amount.
5.
THE BORROWER HEREBY UNCONDITIONALLY
RELEASES, WAIVES AND FOREVER DISCHARGES THE LENDER AND ITS AFFILIATES AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS,
PREDECESSORS, COUNSEL AND AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS,
OBLIGATIONS, LIABILITIES, SUITS AND CAUSES OF ACTION OF ANY KIND WHATSOEVER (IF
ANY), WHETHER NOW EXISTING OR HEREAFTER ARISING, UNDER, ARISING OUT OF, OR IN
CONNECTION WITH (I) THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY
OR (II) THE EXECUTION OF (OR THE SATISFACTION OF ANY CONDITION PRECEDENT OR
SUBSEQUENT TO) THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
2
6.
UPON THE REQUEST OF THE BORROWER, THE
LENDER AGREES TO EXECUTE AND DELIVER, IN FORM AND SUBSTANCE REASONABLY
ACCEPTABLE TO THE LENDER, ANY LIEN RELEASES AND OTHER SIMILAR DISCHARGE OR
RELEASE DOCUMENTS AS ARE REASONABLY NECESSARY TO RELEASE THE LIENS AND SECURITY
INTERESTS GRANTED TO THE LENDER UNDER THE LOAN DOCUMENTS AS SECURITY FOR THE
OBLIGATIONS.
NOTWITHSTANDING THE FOREGOING SENTENCE, THE LENDER SHALL HAVE NO
OBLIGATION TO DELIVER ANY SUCH RELEASES AND DISCHARGES UNLESS AND UNTIL BORROWER
SHALL HAVE PAID ALL REASONABLE COSTS AND EXPENSES INCURRED BY THE LENDER IN
CONNECTION WITH THE PREPARATION AND DELIVERY OF SAME, INCLUDING, BUT NOT LIMITED
TO, ALL ATTORNEYS' FEES AND EXPENSES.
7.
THE BORROWER ACKNOWLEDGES THAT THE
AMOUNTS REFERRED TO IN PARAGRAPH 1 AND PARAGRAPH 3 (WITH RESPECT TO THE
APPLICABLE PREPAYMENT PREMIUM) ABOVE ARE ENFORCEABLE OBLIGATIONS OF IT OWED TO
THE LENDER PURSUANT TO THE PROVISIONS OF THE LOAN DOCUMENTS AND CONFIRM ITS
AGREEMENT TO THE TERMS AND CONDITIONS OF THIS LETTER AGREEMENT BY RETURNING TO
THE LENDER A SIGNED COUNTERPART HEREOF.
8.
IN CONNECTION WITH THE FOREGOING, WELLS
FARGO BANK, NATIONAL ASSOCIATION, HEREBY AGREES TO PAY $10,000 TO THE BORROWER