NOTE PURCHASE AGREEMENT,
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT, AND
FIRST AMENDMENT TO SUB-SUBLEASE AGREEMENT
This Note Purchase Agreement, First Amendment to Stock Purchase Agreement and
First Amendment to Sub-Sublease Agreement (this "Agreement"), dated as of
January
, 2009, is entered into by and among Overstock.com, Inc., a Delaware
corporation ("Seller"), Mountain Reservations, Inc. (f/k/a OTravel.com, Inc.), a
Utah corporation (the "Company") and Castles Travel, Inc., a Delaware
corporation ("Buyer").
Seller, the Company and Buyer are referred to herein
individually as a "Party" and collectively as the "Parties".
Capitalized terms
used but not defined herein shall have the respective meanings ascribed thereto
in the Purchase Agreement (as defined below).
WHEREAS, the Parties have entered into a Stock Purchase Agreement dated as of
April 25, 2007 (the "Purchase Agreement");
WHEREAS, pursuant to Section 1.5(b)(ii) of the Purchase Agreement, Buyer issued
to Seller the Junior Seller Note, with an initial principal amount of
$3,000,000, and the Senior Seller Note, with an initial principal amount of
$3,000,000, each dated as of April 25, 2007 (collectively, the "Seller Notes");
WHEREAS, in connection with the Senior Seller Note, Buyer and Seller entered
into a Pledge Agreement dated as of April 25, 2007 (the "Pledge Agreement"),
whereby Buyer pledged to Seller and granted Seller a security interest in all of
the issued and outstanding capital stock of the Company (the "Pledged Stock");
WHEREAS, the Parties desire to enter into this Agreement to provide for the sale
to Buyer of the Seller Notes in exchange for the consideration described herein;
WHEREAS, in accordance with Section 9.3 of the Purchase Agreement, the Parties
desire to amend the Purchase Agreement as set forth herein; and
WHEREAS, the Company and Seller have entered into a Sub-Sublease Agreement dated
as of January 30, 2008 (the "Sub-Sublease Agreement"), and desire to amend the
Sub-Sublease Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
understandings herein contained, the receipt and sufficiency of which is
acknowledged, the Parties agree as follows:
1.
NOTE PURCHASE AGREEMENT.
(A)
PURCHASE AND SALE OF SELLER NOTES;
TERMINATION OF THE PLEDGE AGREEMENT.
SELLER HEREBY SELLS TO BUYER, AND BUYER
HEREBY PURCHASES FROM SELLER, ALL RIGHT, TITLE AND INTEREST IN THE SELLER NOTES
(INCLUDING ALL RIGHTS TO RECEIVE PAYMENT OF ANY UNPAID PRINCIPAL AND/OR ACCRUED
INTEREST THEREUNDER) (THE "PURCHASE OF SELLER NOTES") IN EXCHANGE FOR A CASH
PAYMENT OF $1,250,000 (THE "NOTE PURCHASE PRICE").
AS A RESULT OF THE PURCHASE
OF SELLER NOTES, AND CONDITIONED UPON RECEIPT BY SELLER OF
THE PURCHASE PRICE AS SPECIFIED IN SECTION 1(B) BELOW, BUYER AND SELLER HEREBY
AGREE THAT (I) THE SELLER NOTES ARE HEREBY CANCELLED AND THAT NEITHER SELLER NOR
ANY OTHER PERSON HAVE ANY FURTHER RIGHTS THEREUNDER AND (II) THE PLEDGE
AGREEMENT IS HEREBY TERMINATED AND CANCELLED WITH NO FURTHER ACTION REQUIRED
FROM ANY PARTY OR OTHER PERSON.
(B)
PAYMENT OF THE NOTE PURCHASE PRICE.
ON THE
DATE HEREOF, BUYER SHALL MAKE A PAYMENT TO SELLER BY WIRE TRANSFER, OR DELIVERY
OF OTHER IMMEDIATELY AVAILABLE