Exhibit 10.1
COLOCATION CENTER TERMINATION
AGREEMENT
THIS COLOCATION CENTER TERMINATION
AGREEMENT (this “Termination Agreement”) is made and
entered into as of the 29 th day of December, 2006, by and between
OMTek, LLC, a Utah limited liability company,
(“Lessor”) and Overstock.com, Inc., a Delaware
corporation, (“Lessee”).
R E C I T A L S:
A. Lessor and Lessee entered
into a Colocation Center Agreement dated July 1, 2005 (the
“Colocation Agreement”) with respect to certain
premises on the first floor of the building known as Old Mill
Corporate Center II (the “Building”) consisting of
11,289 rentable square feet and 9,567 useable square feet (the
“Premises”).
B. Lessee desires to terminate
the Colocation Agreement, and Lessor is willing to terminate the
Colocation Agreement on the terms and conditions set forth
hereinafter.
NOW, THEREFORE, in consideration of
their mutual promises and covenants set forth hereinafter, the
parties agree as follows:
1. Termination of
Colocation Agreement. Lessor and Lessee hereby agree that the
Colocation Agreement shall be terminated effective as of the date
hereof, subject to the terms and conditions of this Termination
Agreement.
2. Termination
Payment. As
consideration for termination of the Colocation Agreement, Lessee
shall pay to Lessor the sum of Five Million Four Hundred
Ninety-Nine Thousand Four Hundred Six and 88/100s Dollars
($5,499,406.88) (the “Termination Amount”) on or before
February 1, 2007.
Any amount not paid when due or
within five (5) days thereafter shall be subject to a late charge
in the amount of five percent (5%) of the delinquent amount.
Further, any payment not paid when due shall bear interest at the
rate of twelve percent (12%) per annum from the date five (5) days
after the due date. Any late charge shall bear interest at
the rate of twelve percent (12%) per annum from the date five (5)
days after the due date.
3. Failure to Pay
Termination Amount. Notwithstanding any other provision herein, in
the event Lessee fails to pay the entire Termination Amount, this
Termination Agreement shall be null and void; and any amounts paid
by Lessee shall be credited against rent owed under the Colocation
Agreement.
4. Termination of
Possession. Lessee
shall terminate its possession of the Premises on or before April
30, 2007. In the event Lessee is unable to terminate its
possession of the Premises on or before April 30, 2007, Lessee
shall give Lessor not less than fifteen (15) days written notice in
which Lessee specifies the date by which it will
terminate
