Exhibit 10.1
WELLS FARGO RETAIL FINANCE,
LLC
One Boston Place, 18 th Floor
Boston, Massachusetts 02108
August 3, 2009
Overstock.com, Inc.
6350 South 3000 East
Salt Lake City, Utah 84121
Ladies and Gentlemen:
Reference is hereby made to that
certain Amended and Restated Loan and Security Agreement (the
“ Loan Agreement ”) dated as of January 6,
2009 by and between Wells Fargo Retail Finance, LLC (the “
Lender” ), and Overstock.com, Inc. (the “
Borrower ”) and the Loan Documents executed in
connection therewith. All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Loan
Agreement.
The Borrower has notified the Lender
that it intends to repay all outstanding Obligations owing to the
Lender under the Loan Agreement and, concurrently therewith,
terminate the Loan Agreement, by no later than August 3,
2009. In connection therewith, the Borrower has requested
that the Lender agree to waive the Applicable Prepayment Premium
which would become payable upon termination of the Loan Agreement.
The Lender is willing to waive the Applicable Prepayment
Premium, subject to the terms and conditions contained
herein.
Accordingly, the Borrower and the
Lender hereby agree as follows:
1.
As of
August 3, 2009 (the “ Payoff Date ”), the amount required
to pay the outstanding Obligations (other than the Applicable
Prepayment Premium) is $144,497.50 (the “ Payout Amount ”), consisting
of:
(a)
$42,500 in
respect of the unpaid Administration Fee (as set forth in the Fee
Letter);
(b)
$99,800 in
respect of the unpaid Annual Fee (as set forth in the Fee Letter);
and
(c)
$2,197.50 in
respect of outstanding Lender Expenses.
2.
This will confirm
that, provided that the conditions in clause (a) and
(b) below (collectively, the “ Payout Conditions ”) have been satisfied
by no later than 5:00 pm Boston time on the Payoff
Date:
(a)
receipt by the
Lender of the Payout Amount in accordance with Paragraph 4 below;
and
