Exhibit 10.1

Execution Original

LOAN AGREEMENT

(OVERSTOCK LOAN)

THIS LOAN AGREEMENT (the “Agreement”) is made between O.COM LAND, LLC, a Utah limited liability company (hereafter referred to as the “Borrower” and/or “Grantor”) of 799 West Coliseum Way, Midvale, Utah 84047; OVERSTOCK.COM, INC., a Delaware corporation (“Guarantor”) of 799 West Coliseum Way, Midvale, Utah 84047; and PCL L.L.C., a Utah limited liability company (“Lender”) of 10011 South Centennial Parkway, Suite 275, Sandy, City UT 84070, effective as of the 6 day of November, 2017 (the “Effective Date”), on the following terms and conditions:

SECTION 1.                          TERM .   The term of this Agreement shall commence on the Effective Date, and shall continue thereafter until all Indebtedness of Borrower to Lender has been repaid in full and the parties terminate this Agreement in writing.

SECTION 2.                          DEFINITIONS .   The following words shall have the following meanings when used in this Agreement.  Terms not otherwise defined in this Agreement shall have the meaning attributed to such terms in the Utah Uniform Commercial Code.  All references to dollar amounts shall mean amounts in lawful money of the United States of America.

Agreement .  The word “Agreement” means this Loan Agreement, as this Loan Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Loan Agreement from time to time..

Borrower .   The word “Borrower” shall mean O.COM LAND, LLC, a Utah limited liability company its successors and/or assigns.

Certificate.  The Certificate of Officers described in Section 6.09 below.

Collateral .   The word “Collateral” means and includes without limitation all property and assets granted as collateral security for a Loan, whether real or personal property, whether granted directly or indirectly, whether granted now or in the future, and whether granted in the form of a security interest, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise.

Grantor .   The word “Grantor” means and includes without limitation each and all of the persons or entities granting a Security Interest in any Collateral for the

Indebtedness, including without limitation the Borrower granting such a Security Interest.

Event of Default .   The words “Event of Default” mean any of the Events of Default described in Section 11 below.

Guarantor .  The word “Guarantor” means OVERSTOCK.COM, INC., a Delaware corporation.

Guaranty .   The word “Guaranty” means the Guaranty of Guarantor in form identical to Exhibit “A” attached hereto.

Indebtedness .   The word “Indebtedness” means all Loans, together with all other obligations, debts and liabilities of Borrower to Lender, as well as all claims by Lender against Borrower, whether now or hereafter existing, voluntary or involuntary, due or not due, absolute or contingent, liquidated or unliquidated; whether Borrower may be liable individually or jointly with others; whether Borrower may be obligated as a guarantor, surety, or otherwise; whether recovery upon such Indebtedness may be or hereafter may become barred by any statute of limitations; and whether such Indebtedness may be or hereafter may become otherwise unenforceable.

Lender .   The word “Lender” means PCL L.L.C., a Utah limited liability company, its successors and assigns.

Loan .   The word “Loan” or “Loans” means any and all commercial loans and financial accommodations made by Lender to Borrower, whether now or hereafter existing, and however evidenced, including without limitation those loans and financial accommodations made from time to time pursuant to this Agreement, as described below or on any exhibit or schedule attached to this Agreement.

Loan Documents .   The words “Loan Documents” mean this Agreement, the Note and all other promissory notes, credit agreements, loan agreements, environmental agreements, security agreements, assignments, financing statements, mortgages, deeds of trust, and other instruments, agreements and documents, whether now or hereafter existing, executed by the Borrower in connection with the Note.

Note .   The word “Note” means that certain Promissory Note, of even date herewith, made by Borrower in favor of Lender in the principal amount of Forty Million and No/100 Dollars ($40,000,000.00), as well as any substitute, replacement or refinancing note or notes therefor.

Permitted Liens .   The words “Permitted Liens” mean:  (a) liens and security interests securing Indebtedness owed by Borrower to Lender; (b) liens for taxes,

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assessments, or similar charges either not yet due or being contested in good faith; and (c) liens of materialmen, mechanics, warehousemen, or carriers, or other like liens arising in the ordinary course of business and securing obligations which are not yet delinquent.

Personal Property .   The words “Personal Property” mean all personal property described in the Deed of Trust, Assignment of Rents, Assignment of Leases, Security Agreement and Fixture Filing, which Deed of Trust is defined below

Real Property .   The words “Real Property” means the real property more particularly described in the Deed of Trust, commonly described as the Peace Coliseum located in Salt Lake County, Utah, with an address of 799 W. Coliseum Way Midvale, UT 84047.  The Personal Property and Real Property are hereafter sometimes jointly and severally referred to as the “Property”.

Related Documents .   The words “Related Documents” mean and include without limitation all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, assignments, mortgages, deeds of trust, and all other Instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.

Security Interest .   The words “Security Interest” mean and include without limitation any type of collateral security, whether in the form of a lien, charge, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel trust, factor’s lien, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security devise, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise.

Trust Deed .   The words “Deed of Trust” mean that Deed of Trust, Assignment of Rents, Assignment of Leases, Security Agreement and Fixture Filing (“Trust Deed” and/or “Deed of Trust”), of even date herewith, between Borrower as Grantor/Trustor and Lender, securing the Note, together with any other agreements, promises, covenants, arrangements, or understandings, whether created by law, contract, or otherwise, evidencing, governing, representing, or creating a real property lien, mortgage, trust deed lien, power of sale or Security Interest in the Collateral.

SECTION 3.                          LOAN.   Lender agrees to loan to Borrower up to Forty Million Dollars ($40,000,000.00) as evidenced by the Note and other Loan Documents.  The Loan shall be disbursed to Borrower in a single disbursement through Landmark Title Company (“Title Company”).

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3.01 Conditions Precedent to Disbursement.   Lender’s obligation to disburse the Loan proceeds, or make any advance pursuant to the Loan, under this Agreement is subject to the following conditions precedent with all documents, instruments, reports, and other items required under this Agreement to be in form and substance reasonably satisfactory to Lender.

(a) Lender shall have received evidence that this Agreement and all Loan Documents have been duly authorized, executed, and delivered by Borrower to Lender;

(b) All security documents such as trust deeds, mortgages, security agreements and the like shall have been duly filed and/or recorded and Lender shall have received assurances from the Title Company that it is prepared to issue the required title insurance with respect to the Trust Deed securing repayment of the Note;

(c) Borrower shall have paid to Lender all fees, costs, and expenses specified in this Agreement and the Loan Documents as are then due and payable;

(d) There shall not exist at the time of closing a condition which would constitute an Event of Default under this Agreement.

3.02 Security for Repayment of Loan.   Repayment of the Loan (other than the Environmental Indemnity defined below and the Guaranty, which Guaranty is an independent, unsecured obligation of Guarantor) shall be secured by a first trust deed lien on the Real Property being pledged as collateral for repayment of the Loan (“Loan Proceeds”).  In addition, the Loan shall be secured by a security interest in the Personal Property.

3.03 Maturity .   Repayment of all sums due and owing under the Loan shall be fully repaid upon the Maturity Date.  The Maturity Date of the Loan is May 1, 2019.

3.04 Monthly Principal and Interest Payments .   During the Term of the Loan, Borrower shall make monthly interest-only payments (“Monthly Payments”).  The Monthly Payments shall be made in arrears.  The first Monthly Payment shall be made on December 1, 2017.  Monthly Payments shall thereafter be made on the 1st day of each of the following months through April 1, 2019 (for a total of 17 Monthly Payments).  The unpaid principal balance of the Loan, together with any and all fees, costs and accrued, but unpaid, interest, shall be repaid on or before the Maturity Date.  Any interest to accrue through December 1, 2017, at the option of the Lender, shall be either paid by Borrower in cash at Closing or paid in the first Monthly Payment of interest due on December 1, 2017.

3.05 Interest Rate . The regular annual simple interest rate for the entire Term of the Loan shall be Eight Percent (8.00%).

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3.06 Right to Prepay.   Borrower shall have the right to prepay the Note in full without penalty.  Borrowers shall not make partial payments of principal without the Lender’s prior written consent.

3.07 Periodic Statement.   Upon Borrower’s request, Lender shall provide Borrower with a statement of Borrower’s Loan account, which statements shall be considered to be correct and conclusively binding on Borrower unless Borrower notifies Lender to the contrary within thirty (30) days after Borrower’s receipt of any such statement which Borrower deems to be incorrect.

3.08 Environmental Indemnity .   Borrower shall execute in favor of Lender an environmental indemnity agreement (“Environmental Indemnity Agreement”) whereby Borrower agrees to indemnify Lender for any damages or claims resulting by reason of any environmental contamination or other claims relating to hazardous wastes.  The Environmental Indemnity Agreement shall survive repayment of the Loan and shall not be secured by any collateral.

SECTION 4.  COLLATERAL .   To secure payment of the Loan and performance of all other loans, obligations and duties owed by Borrower to Lender (other than the Environmental Indemnity Agreement, which is an unsecured obligation of the Borrower), Borrower (and others, if required) shall grant to Lender a lien, mortgage and/or power of sale upon the Real Property Collateral and a Security Interest in the Collateral, as more particularly described above and in the Trust Deed.  Lender’s Security Interest in the Collateral shall be a continuing lien and shall include the proceeds and products of the Collateral, including without limitation the proceeds of any insurance.  With respect to the Collateral, Borrower covenants and agrees with Lender as follows:

4.01 Perfection of Security Interests .   Borrower agrees to execute such financing statements and to take whatever other actions as may be requested by Lender to perfect and continue Lender’s Security Interests in the Collateral.  Upon request of Lender, Borrower will deliver to Lender any and all of the documents evidencing or constituting the Collateral.  Contemporaneous with the execution of this Agreement, Borrower will execute one or more UCC financing statements and any similar statements as may be required by applicable law, and will file, or Lender shall file, such financing statements and all such similar statements in the appropriate location or locations.  Borrower hereby appoints Lender as its irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect or to continue any Security Interest.  Lender may at any time, and without further authorization from Borrower, file a copy or other reproduction of this Agreement or any financing statement for use as a financing statement.  Borrower will reimburse Lender for all expenses for the perfection, termination, and the continuation of the perfection of Lender’s Security Interest in the Collateral.  Borrower will notify Lender promptly of any change in Borrower’s Employer Identification Number.  Borrower further agrees to notify Lender in writing prior to any change in address or

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location of Borrower’s principal offices or should Borrower merge or consolidate with any other entity.

4.02 Collateral Records .   Borrower shall keep correct and accurate records of the Collateral, all of which records shall be available to Lender or Lender’s representative upon demand for inspection and copying at any reasonable time.

4.03 Inspection Rights.   Lender, its assigns, or agents shall have the right at any time, upon reasonable notice, to inspect the Collateral.

4.04 No Transfer and/or Further Encumbrance.   Borrower shall not (i) sell, convey or alienate the Property, or any part thereof, or any interest therein, or be divested of title or any interest therein in any manner or way, whether voluntarily or involuntarily, and/or (ii) further encumber the Property, provided that Permitted Liens shall not be prohibited. Should Borrower do either of the foregoing, Lender shall have the right in its sole discretion to declare all sums evidenced by the Note immediately due and payable.  For purposes of this Paragraph 4.04, a transfer of an ownership interest of greater than ten percent (10%) in the entity comprising the Borrower shall constitute a transfer pursuant to this Paragraph 4.04.

SECTION 5.                          BORROWER’S REPRESENTATIONS AND WARRANTIES .   Borrower represents and warrants to Lender, as of the date of this Agreement, as of the date of the Closing Date and as of the date of any renewal, extension or modification of the Loan, and at all times any Indebtedness exists:

5.01 Authority. O.COM LAND, LLC, Borrower, is a limited liability company duly and properly organized pursuant to the laws of the State of Utah.  O.COM LAND, LLC has the full power and authority to own its properties and to transact the business in which it is presently engaged or presently proposes to engage.  The principal place of business of O.COM LAND, LLC is located in Salt Lake County, Utah.

5.02 Authorization.   The execution, delivery, and performance of this Agreement and all Loan Documents by Borrower have been duly authorized by all necessary action by Borrower; do not require the consent or approval of any other person, regulatory authority or governmental body; and do not conflict with (a) any agreement or other instrument binding upon Borrower; or (b) any law, governmental regulation, court decree, or order applicable to Borrower.

5.03 Financial Information.   Any financial statement of Borrower supplied to Lender truly and completely discloses Borrower’s financial condition as of the date of the statement, and there has been no material adverse change in Borrower’s financial condition subsequent to the date of the most recent financial statement supplied to Lender.  Borrower has no material contingent obligations except as disclosed in such financial statements.

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5.04 Legal Effect.   This Agreement constitutes, and any instrument or agreement required hereafter to be given by Borrower when delivered will constitute, legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms.

5.05 Litigation and Claims.   No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Borrower is pending or threatened, and no other event has occurred which may materially adversely affect Borrower’s financial condition or properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Lender in writing.

5.06 Taxes and Securities Laws .  To the best of Borrower’s knowledge, all tax returns and reports of Borrower that are or were required to be filed, have been filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided.  Borrower has no knowledge of any violations or cause for enforcement action by any State or Federal Agency covering any Securities Laws or regulations.

5.07 Binding Effect.   All of the Loan Documents are binding upon the Borrower, as well as upon its successors, representatives and assigns, and are legally enforceable in accordance with their respective terms.

5.08 Location of Borrower’s Offices and Records.   Borrower’s principal place of business is located at 799 W. Coliseum Way, Midvale, Utah 84047.

5.09 Information.   All information heretofore or contemporaneously herewith furnished by Borrower to Lender for the purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all information hereafter furnished by or on behalf of Borrower to Lender will be, true and accurate in every material respect on the date as of which such information is dated or certified; and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading.

5.10 Survival of Representations and Warranties.   Borrower understands and agrees that Lender, without independent investigation, is relying upon the above representations and warranties in extending the Loan to Borrower.  Borrower further agrees that the foregoing representations and warranties shall be continuing in nature and shall remain in full force and effect until this Agreement shall be terminated in the manner provided in Section 1 above.

5.11 Use of Loan Proceeds .  The Loan Proceeds will be used solely to refinance the existing financing presently encumbering the Real Property.

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5.12 Lien Priority.   Unless otherwise previously disclosed to Lender in writing, Borrower has not entered into or granted any security agreements, or permitted the filing or attachment of any security interests on or affecting any of the Collateral directly or indirectly securing repayment of Borrower’s Loan and the Note, that would be prior or that may in any way be superior to Lender’s Security Interests and rights in and to such Collateral.

SECTION 6.        GUARANTOR’S REPRESENTATIONS AND WARRANTIES .   Guarantor represents and warrants to Lender, as of the date of this Agreement, as of the date of the Closing Date and as of the date of any renewal, extension or modification of the Loan, and at all times any Indebtedness exists:

6.01 Authority. OVERSTOCK.COM, INC., is a corporation duly and properly organized pursuant to the laws of the State of Delaware.  OVERSTOCK.COM, INC., has the full power and authority to transact the business in which it is presently engaged or presently proposes to engage.  The principal place of business of OVERSTOCK.COM, INC., is located in Salt Lake County, Utah.

6.02 Authorization.   The execution, delivery, and performance of this Agreement and the Guaranty by OVERSTOCK.COM, INC., have been duly authorized by all necessary action by Guarantor; do not require the consent or approval of any other person, regulatory authority or governmental body; and do not conflict with (a) any agreement or other instrument binding upon Guarantor; or (b) any law, governmental regulation, court decree, or order applicable to Guarantor.

6.03 Financial Information.   Any financial statement of Guarantor supplied to Lender was prepared in accordance with generally accepted accounting principles and fairly presents in all material respects Guarantor’s financial condition as of the date of the statement, and there has been no material adverse change in Guarantor’s financial condition subsequent to the date of the most recent financial statement supplied to Lender.  Guarantor has no material contingent obligations except as disclosed in such financial statement.

6.04 Taxes.   To the best of Guarantor’s knowledge, all tax returns and reports of Guarantor that are or were required to be filed, have been filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by Guarantor in good faith in the ordinary course of business and for which adequate reserves have been provided.

6.05 Binding Effect.   This Loan Agreement and the Guaranty are binding upon the Guarantor, as well as upon its successors, representatives and assigns, and are legally enforceable in accordance with their respective terms.

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6.06 Location of Guarantor’s Offices and Records.   Guarantor’s principal place of business is located at 799 W. Coliseum Way, Midvale, Utah 84047.

6.07 Information.   All information heretofore or contemporaneously herewith furnished by Guarantor to Lender for the purposes of or in connection with this Agreement or any transaction contemplated hereby, is, and all information hereafter furnished by or on behalf of Guarantor to Lender, will be, true and accurate in every material respect on the date as of which such information is dated or certified; and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading.

6.08 Survival of Representations and Warranties.   Guarantor understands and agrees that Lender, without independent investigation, is relying upon the above representations and warranties in extending the Loan to Borrower and accepting the Guaranty from the Guarantor.

6.09 Securities Reporting and Securities Compliance .  Guarantor has no knowledge of any violations or cause for enforcement action by any State or Federal Agency covering any Securities Laws or regulations.  Guarantor represents and warrants that as of the Closing of the Loan, Guarantor will be in compliance with all applicable securities laws, both State and Federal, and will have made all required public disclosures, including the nature of the transaction, the fact that the loan is being made by family members of Patrick Byrne and such other and further disclosures as required by law.  As of Closing of the Loan, Guarantor shall provide Lender with either (i) a legal opinion acceptable to Lender that all required reporting has been made and that, to the best of counsel’s knowledge, Guarantor is in compliance with all applicable state and Federal Securities laws, or (ii) an Officer’ Certificate in form identical to the certificate (the “Certificate”) attached hereto as Exhibit “B”.

Guarantor further represents and warrants, that on an ongoing basis, from and after Closing, until the Loan is fully repaid, Guarantor will remain in compliance with applicable state and Federal securities laws and will continue to report as required by any and all applicable state and Federal securities laws.

SECTION 7.        AFFIRMATIVE COVENANTS.   Borrower, as applicable, covenants and agrees with Lender that, while this Agreement is in effect:

7.01 Notification.   Borrower shall promptly inform Lender in writing of: (a) all material adverse changes in Borrower’s financial conditions, and (b) all existing and all threatened litigation, claims, investigations, administrative proceedings or similar actions affecting Borrower which would reasonably be expected to materially affect the financial condition of Borrower.

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7.02 Financial Statements and Records. Borrower shall provide to Lender, upon Lender’s written request, the most recent financial statement and or tax returns of the Borrower.  Borrower shall maintain its books and records in accordance with generally accepted accounting principles, applied on a consistent basis, and permit Lender to examine and audit Borrower’s books and records at all reasonable times.  Borrower shall provide such other financial and informational reports as reasonably requested by the Lender.

7.03 Performance .   Borrower shall perform and comply with all terms, conditions, and provisions set forth in this Agreement and in the other Loan Documents in a timely manner, and promptly notify Lender if Borrower learns of the occurrence of any event which, with or without the passage of time, would constitute an Event of Default under this Agreement or under any of the other Loan Documents.

7.04 Additional Documentation and Information.   Borrower shall furnish such additional documentation, information and statements, lists of assets and liabilities, budgets, forecasts, tax returns, and other reports with respect to Borrower’s financial condition and business operations as Lender may request from time to time.

7.05 Insurance .   Borrower shall maintain fire and other risk insurance, public liability insurance, flood insurance and earthquake insurance as provided in Paragraph 1.04 (I) of the Deed of Trust and such other insurance as Lender may require with respect to the Real and Personal Property and its operations, in form, amounts, coverages and with insurance companies reasonably acceptable to Lender.  Borrower, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be canceled or diminished without at least ten (10) days’ prior written notice to Lender.  Each insurance policy also shall include an endorsement providing that coverage in favor or Lender will not be impaired in any way by any act, omission or default of Borrower or any other person.  In connection with all policies covering assets in which Lender holds or is offered a security interest for the Loans, Borrower will provide Lender with such loss payable or other endorsements as Lender may require.  Borrower shall promptly notice the Lender in the event that a policy of insurance described in the Section 6.05 is terminated or Borrower changes insurance carriers.

7.06 Insurance Reports .   Borrower shall furnish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as Lender may reasonably request, including without limitation the following: (a) the name of the insurer; (b) the risks insured; (c) the amount of the policy; (d) the properties insured; and (e) the then current property values on the basis of which insurance has been obtained.

7.07 Taxes, Charges and Liens .   Borrower shall pay and discharge when due all of its indebtedness and obligations, including without limitation all assessments, taxes, governmental charges, levies and liens, of every kind and nature, imposed upon Borrower or its properties, income, or profits, prior to the date on which penalties would attach, and

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all lawful claims that, if unpaid, might become a lien or charge upon any of Borrower’s properties, income or profits.  Provided however, Borrower will not be required to pay and discharge any such assessment, tax, charge, levy, lien or claim so long as (a) the legality of the same shall be contested in good faith by appropriate proceedings, and (b) Borrower shall have established on its books adequate reserves with respect to such contested assessment, tax, charge, levy, lien, or claim in accordance with generally accepted accounting practices.  Borrower, upon demand of Lender, will furnish to Lender evidence of payment of the assessments, taxes, charges, levies, liens and claims and will authorize the appropriate governmental official to deliver to Lender at any time a written statement of any assessments, taxes, charges, levies, liens and claims against Borrower’s properties, income, or profits.

7.08 Inspection . Borrower shall permit employees or agents of Lender at any reasonable time to inspect any and all Collateral for the Loan and Borrower’s other properties and to examine or audit Borrower’s books, accounts, and records and to make copies and memoranda of Borrower’s books, accounts, and records.  If Borrower now or at any time hereafter maintains any records (including without limitation computer generated records and computer software programs for the generation of such records) in the possession of a third party, Borrower, upon request of Lender, shall notify such party to permit Lender free access to such records at all reasonable times and to provide Lender with copies of any records it may request, all at Borrower’s expense.

7.09 Operations .   Borrower shall conduct its business affairs in a reasonable and prudent manner and in compliance with all applicable federal, state and municipal laws, ordinances, rules and regulations respecting its properties, charters, businesses and operations, including without limitation, compliance with the Americas With Disabilities Act and with all minimum funding standards and other requirements of ERISA and other laws applicable to Borrower’s employee benefit plans and with any and all other special regulations relating to Borrower’s businesses.

7.10 Additional Action s .   Borrower agrees that it is the intent of the parties that the Lender be granted a lien on the Real Property and Personal Property to secure repayment of the Loan.  In the event that it is determined after closing that Lender needs to take any further actions or have the Borrower sign additional documentation to achieve the intent of the parties, including the proper collateralization of the Loan, then in that event, the Borrower agrees to sign and/or deliver (now or in the future) such other documents as are necessary to achieve the intent of the parties or as required by the Lender.  Failure of the Borrower to execute such additional documentation or provide necessary information to complete such documentation shall be a default of the Loan.

7.11 Borrower’s Prepayment of the Loan.  Prior to or in conjunction with the occurrence of any of the following events, Borrower will prepay the Loan in full: (i) Guarantor shall cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change ownership, change its name, dissolve or effectuate a material

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change in its, or affiliate’s, capital structure, (ii) Guarantor engages in any business activities substantially different than those in which Guarantor is presently engaged, (iii) the decision making and control of the Borrower and/or the Guarantor shall change in any material respect from the effective date of this Loan Agreement, (iv) the diminution in ownership of Patrick Byrne of the Guarantor, (v) loss of current management control of the Guarantor by Patrick Byrne, and/or (vi) Guarantor, or any of its affiliates, shall materially change its/their ownership and/or equity structure.

SECTION 8.                          NEGATIVE COVENANTS OF BORROWER.   Borrower covenants and agrees with Lender that while this Agreement is in effect, Borrower shall not:

8.01 Continuity of Operations.   Cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change ownership, change its name or dissolve.

8.02 Business Activities.   Engage in any business activities substantially different than those in which Borrower is presently engaged.

8.03 No Sale or Transfer and/or Further Encumbrance .  Sell, convey or alienate the Property, or any part thereof, or any interest therein, or be divested of title or any interest therein in any manner or way, whether voluntarily or involuntarily, and/or   further encumber the Property.

SECTION 9.                          NEGATIVE COVENANTS OF GUARANTOR.   Guarantor covenants and agrees with Lender that while this Agreement is in effect, Guarantor shall not:

9.01 Continuity of Operations.   Cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change ownership, change its name, dissolve or effectuate a material change in its capital structure.

9.02 Business Activities.   Engage in any business activities substantially different than those in which Guarantor is presently engaged.

9.03 Decision making and Control .  Change the decision making and/or control of the Guarantor in any material respect from the effective date of this Loan Agreement until the Loan is fully repaid.

SECTION 10.                   CESSATION OF ADVANCES.  Notwithstanding the provisions of Section 3 above, if Lender has made any commitment to make any Loan to Borrower, whether under this Agreement or under any other agreement, Lender shall have no obligation to make any additional advance pursuant to the Loan or to disburse Loan proceeds if: (a) an Event of Default has occurred under the terms of this Agreement; (b) Borrower becomes insolvent, files a petition in bankruptcy or similar proceedings, or is

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adjudged a bankrupt; or (c) there occurs a material adverse change in Borrower’s financial condition.

SECTION 11.                   WAIVER OF CLAIMS .   Borrower (i) represents that it has no defenses to or set-offs against any Indebtedness or other obligations owing to Lender (the “Obligations”), nor claims against Lender or its affiliates for any matter whatsoever, related or unrelated to the Obligations, and (ii) releases Lender and its affiliates from all claims, causes of action, and costs, in law or equity, existing as of the date of this Agreement, which Borrower has or may have by reason of any matter of any conceivable kind or character whatsoever, related or unrelated to the Note, including the subject matter of this Agreement.  This provision shall not apply to claims for performance of express contractual obligations owing to Borrower by Lender or its affiliates.

SECTION 12.             EVENTS OF DEFAULT .   Each of the following shall constitute an Event of Default under this Agreement, unless cured within the applicable grace period expressly provided in this Section or consented to in writing by Lender:

12.01 Default on Indebtedness.   Failure of Borrower to make any payment when due on the Note.

12.02 Other Loan Document Obligations.   Failure of Borrower to comply with or to perform when due any other term, obligation, covenant or condition contained in this Agreement or in any of the Loan Documents, or failure of Borrower to comply with or to perform any other term, obligation, covenant or condition contained in any other agreement between Lender and Borrower.

12.03 Obligations of the Guarantor .  Failure of Guarantor to comply with or to perform any term, obligation, covenant or condition of Guarantor contained in this Agreement or in the Guaranty, or failure of Guarantor to comply with or to perform any other term, obligation, covenant or condition of Guarantor contained in any other agreement between Lender and Guarantor.

12.04 False Statements.   Any warranty, representation or statement made or furnished to Lender by or on behalf of Borrower or Guarantor under this Agreement, any of the other Loan Documents, or any financial statement, certificate or schedule delivered by Borrower or Guarantor to Lender pursuant to this Agreement, is false or misleading in any material respect at the time made or furnished, or becomes false or misleading in any material respect at any time thereafter.

12.05 Insolvency.   The insolvency of Borrower and/or the Guarantor, the appointment of a receiver for any part of Borrower’s property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower and/or the Guarantor.

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12.06 Creditor or Forfeiture Proceedings .   Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower, or by any governmental agency.  However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding, and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and furnishes reserves or a surety bond for the creditor or forfeiture proceeding satisfactory to Lender.

12.07 Default on Other Obligations Secured by the Collateral.   A default by Borrower in: (i) the payment of principal or interest on any other material obligation repayment of which is secured by the Collateral, or (ii) the performance or observance of any obligation in any agreement relating thereto, if the effect of such default is to cause, or permit the holder or holders of such obligation (or a trustee on behalf of such holder or holders) to cause such obligation to become due prior to its stated maturity.

12.08 Undischarged Judgments.   Unless Lender otherwise consents in writing, Borrower permits any judgment or judgments against it in excess of $500,000 in the aggregate, to remain undischarged for a period of more than sixty (60) days unless during such period such judgment is or judgments are effectively stayed or bonded, on appeal or otherwise.

12.09 Change in Corporate Control.  The decision making and control of the Borrower and/or the Guarantor shall change in any material respect from the effective date of this Loan Agreement.

12.10 Failure to meet all Required Government Regulations.   Borrower and/or Guarantor shall fail to meet all federal, state and local municipality regulations relating to the operations of Borrower’s and/or Guarantor’s business.

12.11 Sale or further encumbering of the Property.  Borrower shall (i)  s ell, convey or alienate the Property, or any part thereof, or any interest therein, or be divested of title or any interest therein in any manner or way, whether voluntarily or involuntarily, and/or (ii) further encumber the Property.

12.12 Material Change in Ownership or Equity of Guarantor .  Guarantor, or any of its affiliates, shall materially change its/their ownership and/or equity structure.

12.13 Borrower’s Right to Cure.   If any default, other than a default on payment of the Indebtedness under the Note, is curable and if Borrower has not been given a notice of a similar default within the preceding six (6) months, such default may be cured (and no Event of Default will be deemed to have occurred) if Borrower, after receiving written notice of such default from Lender: (a) cures the default within fifteen (15) days after receipt of such notice; or (b) if the cure requires more than fifteen (15) days, immediately

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initiate steps which Lender deems in Lender’s sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.  If Borrower defaults on any payment of interest under the Note, such default may be cured (and no Event of Default will be deemed to have occurred) if Borrower, after receiving written notice (or electronic notice with receipt confirmed) of such interest payment default from Lender cures the default within two (2) business days after receipt of such notice.

SECTION 13.  CONDITIONS PRECEDENT TO CLOSING.   Prior to Closing the Loan anticipated hereby, the following conditions shall have occurred to the satisfaction of Lender:

13.01 Lender’s Review .   The Loan Closing is subject to satisfactory review by Lender of Borrower’s and Guarantor’s organizational and authorizing documents.  Lender’s obligation to make the Loan is also conditioned upon Lender’s counsel’s preparation of all loan documents and review of all underwriting materials.

13.02                  First Trust Deed Lien .   The Trust Deed will actually be a first trust deed lien on the Real Property and Lender is insured by the Title Company through a ALTA lender’s policy (or policies) of title insurance, specifically deleting the standard exceptions, including the survey exception and the mechanic’s lien exception, and adding such endorsements as are required by the Lender, that the Trust Deed is a first trust deed lien on the Real Property.

13.03 Assignment of Leases and Estoppels.   Borrower shall assign to Lender any and all leases affecting the Real Property as security for repayment of the Note, in form acceptable to Lender.  In addition, Borrower, at the request of the Lender shall cause each of the tenants occupying the Real Property to execute subordination agreements.  Lender agrees that, provided the lease in question is acceptable to it, it will enter into a Non-Disturbance and Subordination Agreement with each of Borrower’s tenants, if any.

13.04 First Priority Security Interest in the Fixtures and Personal Property .   The Trust Deed will create a first priority security interest in the fixtures and personal property described in the Trust Deed and there will be no other security interests on the Personal Property and fixtures that are not released or terminated through Closing.  Lender shall have obtained and reviewed a Uniform Commercial Code search of the Personal Property and fixtures acceptable to Lender and Lender’s counsel.

13.05 Review of Underwriting Materials .   Lender and Lender’s counsel shall have reviewed to their satisfaction, in their sole discretion, all information relating to any reports required to be reviewed by them and the materials in such reports are satisfactory to the Lender and Lender’s counsel.

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13.06 Loan Origination Fee .   The Origination Fee as defined in Paragraph 15.04 shall have been paid, or will be paid through closing.

13.07 Guaranty of Loan .   The Guarantor shall have executed a Guaranty of the Loan in favor of Lender in form identical to Exhibit “A” attached hereto.

SECTION 14.      EFFECT OF AN EVENT OF DEFAULT.   If any Event of Default shall occur, except where otherwise provided in this Agreement or the Loan Documents, all commitments and obligations of Lender under this Agreement or the Loan Documents or any other agreement immediately will terminate (including any obligation to make Advances or disbursements), and, at Lender’s option, all Indebtedness will become due and payable immediately, all without notice of any kind to Borrower, except that in the case of an Event of Default of the type described in the “Insolvency” subsection above, such acceleration shall be automatic and not optional.  In addition, Lender shall have all the rights and remedies provided in the Loan Documents or available at law, in equity, or otherwise.  Except as may be prohibited by applicable law, all of Lender’s rights and remedies shall be cumulative and may be exercised singularly or concurrently.  Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower shall not affect Lender’s right to declare a default and to exercise its rights and remedies.

SECTION 15.      MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:

15.01 Entire Agreement; Amendments.   This Agreement, together with the other Loan Documents, constitute the entire understanding and agreement of the parties as to the matters set forth in this Agreement. Borrower and Guarantor agree that this Agreement and the related Loan Documents are the final expression of the agreement between Lender, Guarantor and Borrower and may not be contradicted by evidence of any alleged oral agreement.  No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

15.02 Applicable Law.  This Agreement has been delivered to Lender and accepted by Lender in the State of Utah.  This Agreement shall be governed by and construed in accordance with the laws of the State of Utah.  Borrower and Guarantor stipulate and agree that any action brought by either of them against the Lender or concerning the Guaranty and/or the Indebtedness may only be brought in the Third Judicial District Court in and for the State of Utah.

15.03 Caption Headings .   Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.

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15.04 Loan Origination Fee and Lender’s Costs and Expenses .   Borrower will pay, at Closing to Lender, a Loan Origination Fee (“Origination Fee”) equal to one percent (1%) of the Forty Million Dollar ($40,000,000) Loan.  Other than costs associated with the closing of the Loan, which shall be paid by the Lender, Borrower agrees to pay upon demand all of Lender’s expenses, including without limitation reasonable attorneys’ fees, incurred in connection with the enforcement, modification and collection of this Agreement or in connection with the Loan made pursuant to this Agreement.  Lender may pay a third party to assist in collection of the Loan and to enforce this Agreement, and Borrower will pay any and all sums Lender pays to said third party.  This includes, subject to any limits under applicable law, Lender’s reasonable attorneys’ fees and Lender’s legal expenses, whether or not there is a lawsuit initiated, including reasonable attorneys’ fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services.  Borrower also will pay any court costs, in addition to all other sums provided by law.

15.05 Notices .   All notices required to be given under this Agreement shall be given in writing, may be sent by facsimile (unless otherwise required by law), and shall be effective when personally delivered, when received by facsimile with confirmation of transmission, or when deposited with a nationally recognized overnight courier or deposited in the United States mail, certified with return receipt requested, postage prepaid, addressed to the party to whom the notice is to be given at the address shown below.  Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address. For notice purposes, Borrower will keep Lender informed at all times of Borrower’s current address.

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15.06 Severability .   If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances.  If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable.

15.07 Successors and Assigns .   All covenants and agreements contained by or on behalf of Borrower shall bind their successors and assigns and shall insure to the benefit of Lender, its successors and assigns.  Borrower shall not, however, have the right to assign its rights under this Agreement or any interest therein, without the prior written consent of Lender, which may be granted or withheld in Lender’s sole discretion.

15.08 Survival .   All warranties, representations, covenants and indemnifications made by Borrower in this Agreement or in any certificate or other instrument delivered by Borrower to Lender under this Agreement shall be considered to have been relied upon by Lender and will survive the making of the Loan and delivery to Lender of the Loan Documents, regardless of any investigation made by Lender or on Lender’s behalf.

15.09 Time Is of the Essence .   Time is of the essence in the performance of this Agreement.

15.10 Waiver .   Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender.  No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right.  A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement.  No prior waiver by Lender, nor any course of dealing between Lender and Borrower, or between Lender and any grantor, shall constitute a waiver of any of Lender’s rights or of any obligations of Borrower or of any Grantor as to any future transactions.  Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent in subsequent instances where such consent is required, and in all cases such consent may be granted or withheld in the sole discretion of Lender.

15.11 Borrower’s Indemnity .   Borrower hereby agrees to indemnify, defend and hold harmless Lender and all of Lender’s members, officers and employees (collectively, the “Indemnified Parties”) from and against any and all claims, causes of action, liabilities, damages, costs and expenses (including reasonable attorney’s fees) made against or incurred by any of the Indemnified Parties relating to a claim by any existing member of Borrower, shareholder of Guarantor or other third party contesting Borrower’s power or

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authority to enter into this Agreement or to consummate the transactions contemplated by this Agreement.

15.12 Counterparts.   This Agreement may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument.

15.13 Waiver of Right to Jury Trial .   WITH RESPECT TO ANY DISPUTE BETWEEN THE PARTIES RELATING TO THE LOAN, THE NOTE OR ANY OTHER OF THE RELATED DOCUMENTS, THE BORROWER, THE GUARANTOR AND LENDER HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL.

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Exhibit 10.2

Execution Original

PROMISSORY NOTE

FOR VALUE RECEIVED, the undersigned, O.COM LAND, LLC (hereafter the “Maker”) of 799 W. Coliseum Way, Midvale, UT 84047, promises to pay to the order of PCL L.L.C., a Utah limited liability company, its successors or assigns (sometimes referred to herein as “Holder”), at its office at 10011 South Centennial Parkway, Suite 275, Sandy City, Utah 84070, or at such other place as the Holder may from time to time designate in writing, the principal sum of FORTY MILLION AND NO/100 DOLLARS ($40,000,000.00), together with interest on the unpaid balance hereof, at the rate herein below provided, to be paid in lawful money of the United States of America as follows:

1.                                       As used herein, “Indebtedness” means the principal sum of FORTY MILLION AND NO/100 DOLLARS ($40,000,000.00) or so much thereof as may be outstanding from time to time, together with interest thereon, and such other sums which may become due pursuant to this Note and other documents securing repayment of this Note.

2.                                       For the entire eighteen (18) month term of this Note (“Term”), interest shall accrue on the unpaid principal balance at the fixed annual rate of Eight Percent (8.00%).

NOTICE:  Under no circumstance will the interest rate on this Note be more than the maximum rate allowed by applicable law .  Interest on this Note is computed on a simple interest basis; that is, by applying the ratio of the annual interest rate over a year of 365 days, times the outstanding principal balance, times the actual number of days the principal balance is outstanding.  Maker will pay Lender at Lender’s address shown above or at such other place as Lender may designate in writing.  Unless otherwise agreed or required by applicable law, payments will be applied first to any unpaid collection costs, then to unpaid interest, and any remaining amount to principal.

3.                                       During the Term of this Note, Maker shall make monthly interest-only payments (the “Monthly Payments).  The Monthly Payments shall be made in arrears.  The first Monthly Payment shall be made on or before December 1, 2017.  Monthly Payments shall be made on the 1st day of each of the succeeding months through April 1, 2019.  The unpaid balance of the Loan, any accrued but unpaid interest and all unpaid principal, shall be repaid on or before the Maturity Date.  The payment due on the Maturity Date will be a balloon payment.  Maker may prepay this Note in full without prepayment penalty. Partial prepayments of principal shall not be allowed without the written consent of the Holder.  Maker shall be required to prepay this Note in full in conjunction with the happening of certain events described in the Loan Agreement of even date herewith.

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4.                                       Notwithstanding anything contained herein to the contrary all outstanding principal and any accrued but unpaid interest hereunder shall, in all events, be due and payable in full on or before the May 1, 2019 Maturity Date.

5.                                       If (a) default occurs hereunder; or (b)  if default be made in the performance of any of the covenants or conditions of this Note, any instrument or agreement securing this Note, or of any other instrument executed in connection with this Note including the Loan Agreement, or by which this Note is secured; or (c)  if default be made in payment of the principal; or (d) if the interest is not paid when due, time being the essence hereof; then the entire principal balance, with interest as aforesaid, shall, at the election of the Holder hereof and without notice of said election, at once become due and payable.  If default be made in the payment of any sum due hereunder when due or if default be made in the performance of any of the covenants or conditions of this Note, any instrument or agreement securing this Note, or of any other instrument executed in connection with this Note including the Loan Agreement, or by which this Note is secured, then the rate of interest accruing hereunder (both before and after judgment) shall automatically and immediately increase to an annual interest rate of Eighteen percent (18%) per annum.  In the event any such default is thereafter fully cured and this Note is reinstated, the interest rate hereunder shall then revert to the rate then in effect under Paragraph 2 of this Note.

6.                                       Maker hereby agrees to pay to the Holder a late charge equal to five percent (5%) of any late payment, including the payment due on the Maturity Date, but in no event to exceed the maximum allowable by law, on any sums not paid within ten (10) days after their due date.

7.                                       The Maker and any guarantors and/or endorsers of this Note for themselves, their heirs, legal representatives, successors and assigns, respectively and severally, waive presentment, demand, protest and notice of dishonor and waive any right to be released by reason of any extension of time or change in terms of payment or any change, alteration or release of any security given for the payment hereof.  The Maker and any guarantors and/or endorsers of this Note for themselves, their heirs, legal representatives, successors and assigns, further, jointly and severally, agree to pay (i) all costs of collection, including without limitation reasonable attorney’s fees, and all expenses in connection with the protection or realization of the collateral securing this Note or the enforcement of any endorsement hereof incurred by the Holder of this Note on account of such collection, whether or not suit is filed hereon, and including, without limitation, all costs and expenses incurred by Holder in connection with any insolvency, bankruptcy, reorganization, arrangement or other similar proceedings involving the Maker or involving any guarantor or endorser hereof, or which in any way affect the exercise by the Holder of any of its rights and remedies hereunder or under any instrument or agreement securing this Note or executed in connection therewith, and (ii) all costs and expenses incurred in defending any action or counterclaim brought by the Maker against Holder pertaining to this Note or any instrument or agreement securing this Note or executed in connection herewith in which the Maker does not prevail, including all costs and expenses incurred on appeal.

8.                                       All payments hereon shall be in lawful money of the United States of America in immediately available funds, and shall be applied first to collection costs, then to accrued interest and late charges, and then to principal.

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9.                                       All agreements between the Maker and the Holder of this Note are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of deferment in accordance with this Note or any agreement, or advancement of the loan proceeds, acceleration of maturity of the loan, or otherwise, shall the amount paid or agreed to be paid to the Holder hereof for the loan, use, forbearance or detention of the money to be loaned hereunder exceed the maximum permissible under applicable law.  If, from any circumstances whatsoever, fulfillment of any provision hereof or any instrument or document securing this Note or any other agreement between the parties, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then, ipso facto , the obligation to be fulfilled shall be reduced to the limit of such validity.  This provision shall never be superseded or waived and shall control every other provision of all agreements between the Maker and Holder.

10.                                The provisions hereof shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision or portion hereof shall not affect the validity or enforceability of any other provision hereof.  This Note will be governed by the laws of the State of Utah.

11.                                This Note with interest is secured by (i) a first deed of trust lien upon the real property commonly described as The Peace Coliseum located in Salt Lake County, Utah, with an address of 799 W. Coliseum Way, Midvale, UT 84047, and assignments and security interests as more particularly described and evidenced by a Deed of Trust, Assignment of Rents, Assignment of Leases, Security Agreement and Fixture Filing dated even date herewith, (ii) such other collateral and security documents as required by the Holder.

12.                                This loan has been made in reliance upon the skill and abilities of the Maker and the individuals, shareholders, entities or partners constituting Maker as well as its financial strength.  In the event that the Maker shall, without the express written consent of the Holder, voluntarily or involuntarily sell, transfer, dispose of, lose, diminish, reduce or further encumber or agree to sell, transfer, dispose of, lose, diminish, reduce or further encumber all or any portion of or any interest in the Property described in the Deed of Trust and/or any security agreement described in Paragraph 11 above, then the Holder of this Note may, at its option, declare the entire indebtedness evidenced hereby immediately due and payable.

IN WITNESS WHEREOF, the parties have made this Note effective the day and year first above written.

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Exhibit 10.3

When Recorded Return to :

Sally B. McMinimee, Esq.

Prince, Yeates & Geldzahler

15 West South Temple, #1700

Salt Lake City, Utah 84101

DEED OF TRUST, ASSIGNMENT OF RENTS,

ASSIGNMENT OF LEASES, SECURITY AGREEMENT

AND FIXTURE FILING

(Overstock Loan)

THIS DEED OF TRUST, ASSIGNMENT OF RENTS, ASSIGNMENT OF LEASES, SECURITY AGREEMENT AND FIXTURE FILING (this “Deed of Trust” and/or “Trust Deed”)  is dated the 6 th  day of November, 2017, by and between O.COM LAND, LLC, a Utah limited liability company (hereafter referred to as “Trustor”, “Borrower”, “Debtor” and/or “Record Owner”), whose address is 799 W. Coliseum Way, Midvale, UT 84047, Attention Chief Executive and General Counsel, LANDMARK TITLE COMPANY (‘Trustee”), which has a place of business at 675 East 2100 South, #200, Salt Lake City, Utah 84106 and PCL L.L.C., a Utah limited liability company (hereafter sometimes referred to as “Lender” “Beneficiary” and/or “Secured Party”), whose place of business is c/o Cirque Property, 10011 South Centennial Parkway, Suite 275, Sandy City, UT 84070.

FOR GOOD AND VALUABLE CONSIDERATION, including Lender making a loan to Borrower/Trustor as described below, also referred to herein as the Indebtedness, herein recited, and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby GRANTS, CONVEYS AND WARRANTS TO TRUSTEE, IN TRUST, WITH POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the real property situated in Salt Lake County, State of Utah, described on Exhibit “A” attached hereto and incorporated herein by this reference (the “Property”), commonly described as 799 W. Coliseum Way, Midvale, UT 84047.

TOGETHER WITH all rents, issues, profits, income and other benefits derived from the Property (collectively the “rents”), subject to the right, power and authority hereinafter given to Trustor to collect and apply such rents;

TOGETHER WITH all leasehold estates, leases, tenancies, installment sales proceeds, options, rights to lease, right, title and interest of Trustor in and to all leases or subleases covering the Property, or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash in accounts specifically related to the Property or security deposits specifically related to the Property, advance rentals, and deposits or payments of similar nature;

TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase or lease the Property, or any portion thereof or interest therein, and any greater estate in the Property, owned or hereafter acquired;

TOGETHER WITH all right, title and interest which Trustor now has or may hereafter acquire in and to purchase agreements and/or sales contracts pertaining to the Property, or any part thereof;

TOGETHER WITH all interests, estate or other claims, both in law and in equity, which Trustor now has or may hereafter acquire in the Property and the personal property and fixtures described on Exhibit “B” attached hereto;

TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, and all tenements, hereditaments and appurtenances thereof and thereto;

TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property;

TOGETHER WITH any and all buildings and improvements now or hereafter erected on the Property, including, but not limited to, the structures, buildings, fixtures, attachments, appliances, equipment, machinery, and other articles attached to said buildings and improvements (the “Improvements”);

TOGETHER WITH all right, title and interest of Trustor in and to the following which is now owned or at any time hereafter acquired by Trustor or in which it may now or hereafter have an interest and which is located at the Property and used in connection with the Property:

A.                                         All building materials, fixtures, works, structures, facilities, including any future additions to, and improvements and betterments now or hereafter constructed upon., and all renewals and replacements of, any of the foregoing, which are now or hereafter shall be constructed or affixed or constructively affixed to the Property,  lighting fixtures, keys, security devices, supplies and equipment to be used in the operations of, to be incorporated into and/or placed in improvements constructed or to be constructed on the Property;

B.                                         All contracts and contract rights relating in any manner to the design and construction of improvements on the Property, or in any other manner relating to said Property, (including, but not limited to, insurance contracts, engineering reports, or other materials prepared in connection with the construction of improvements upon the Property);

C.                                         All plans and specifications prepared by any architect employed by Trustor for use in connection with building improvements on the Property and all management and operations contracts related thereto;

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D.                                         All other accounts, reserve accounts, hold-back accounts, or other accounts wherein funds are held, committed or placed to refurbish or otherwise improve the Trust Property, contract rights, general intangibles, rents, insurance proceeds, awards, condemnation awards, rebates, causes of action, building permits, governmental licenses or permits and rights in any manner relating to the Property, including the design and construction of improvements thereon, including but not limited to, any rights relating to the provision of electricity, gas, water, sewer and other utility services to the Property;

E.                                        All water, water rights and ditch rights (including water stock in utilities with ditch or irrigation rights) and all other rights, royalties and profits relating to the Property, including without limitation all minerals, oil, gas, geothermal and similar matters.

Trustor (Debtor) grants unto Trustee and Secured Party (Beneficiary) a “Security Interest,” as defined in the Utah Uniform Commercial Code, in the foregoing Personal Property and fixtures and in any and all Personal Property and/or fixtures described in any of the foregoing or following “TOGETHER WITH” paragraphs; and

TOGETHER WITH the rights hereinafter granted in paragraph l.06 with respect to all the estate, interest, right, title or other claim or demand, including claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire in the Property, and the rights hereinafter granted in paragraph 1.15 with respect to any and all awards made for the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Property, or any improvement made thereto, including, without limitation, any awards resulting from a change of grade of streets and awards for severance damages.

The foregoing entire estate, property and interest hereby conveyed, granted and created in and to Trustee, including the Property, the rents, the Improvements, the fixtures, and the Personal Property, is hereafter referred to as the “Trust Estate.”

FOR THE PURPOSE OF SECURING:

A.                                        Payment of indebtedness evidenced by that certain promissory note dated November 6 th , 2017, executed by Trustor as Maker in favor of Beneficiary in the face amount of Forty Million and No/100 Dollars ($40,000,000) (“Note”), with interest thereon and any and all modifications, extensions and renewals.

B.                                        Payment of all sums advanced by Beneficiary to protect the Trust Estate, with interest thereon at the rates provided in the Note described in Paragraph A above.

C.                                        Payment of all other sums, with interest thereon, which may hereafter be loaned to Trustor, or its successors or assigns, by Beneficiary, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.

D.                                        Performance of Trustor’s covenants and agreements set forth in that Loan Agreement between Trustor, the Beneficiary and Overstock.com, Inc., as Guarantor (“Guarantor”),

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dated November 6, 2017 (the “Agreement”) and any modification or amendment hereof or thereof (the Agreement is incorporated herein and by this reference is made a part hereof).

E.                                         All of the obligations and promissory notes described in Paragraphs A-D immediately preceding this Paragraph (specifically excluding the Guaranty of Overstock.com, Inc., which is not secured hereby) are hereafter collectively referred to hereafter as the “Indebtedness”.

This Deed of Trust, the Indebtedness, the Agreement and any other instrument given to evidence or further secure the payment and performance of any obligations secured hereby are hereafter referred to as the “Loan Instruments.”

ARTICLE I

COVENANTS AND AGREEMENTS OF TRUSTOR

Trustor hereby covenants and agrees:

1.01                            Payment of Secured Obligations .  To pay when due the principal of, and the interest on, the Indebtedness, charges, fees and all other sums as provided in the Loan

Instruments, and the principal of, and interest on, any future advances secured by this Deed of Trust.

1.02                            Possession and Use .  Until the occurrence of an event of default, Trustor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property.

1.03                            Maintenance, Repair, Alterations .  To complete and maintain in good and workmanlike manner any building or other improvement which may be constructed on the Property and promptly restore in like manner any Improvement which may be damaged or destroyed thereon, and to pay when due all claims for labor performed and materials

furnished therefor, to comply with all laws, ordinances, regulations, covenants, conditions and restrictions now or hereafter affecting the Trust Estate, or any part thereof, or requiring any alterations or improvements; not to commit or permit any waste or deterioration of the Trust Estate, and to keep the Trust Estate in good condition and repair, not to remove or substantially alter any such Improvements, once constructed or installed (except such alteration as may be required by laws, ordinances or regulations) or any of the Improvements without the prior written consent of Beneficiary; to keep and maintain abutting grounds, sidewalks, roads, bridges, walkways, parking and landscape areas in good and neat order and repair; not to commit, suffer or permit any act to be done in or upon the Trust Estate in violation of any law, ordinance or regulation.

1.04                            Required Insurance .  To at all times provide, maintain and keep in force the policies of insurance as required by Beneficiary and any other written agreement signed by both Trustor and Beneficiary, as required by Beneficiary and to the extent such insurance is available, including but not limited to the following:

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A.                                        Insurance against loss or damage to the Improvements by fire and any of the risks covered by insurance of the type now known as “fire and extended coverage,” in an amount equal to the full insurable value thereof (exclusive of the cost of excavations, foundations, and footings below the lowest basement floor);

B.                                        If requested by Beneficiary, business interruption insurance and/or loss of “rental value” insurance in such amounts as are satisfactory to Beneficiary;

C.                                        During the course of any construction or repair of Improvements on the Property, comprehensive public liability insurance on an “occurrence basis” against claims for “personal injury,” including, without limitation, bodily injury, death or property damage occurring on, in or about the Trust Estate, and the adjoining streets, sidewalks and passageways, such insurance to afford immediate minimum protection to a limit of not less than that required by Beneficiary with respect to personal injury or death to any one or more persons or damage to property;

D.                                        During the course of any construction or repair of Improvements on the Property, workers’ compensation insurance (including employer’s liability insurance, if requested by Beneficiary) for all employees of Trustor engaged on or with respect to the Trust Estate in such amount as is reasonably satisfactory to Beneficiary, or, if such limits are established by law, in such amounts;

E.                                         During the course of any construction or repair of Improvements on the Property, builder’s completed value risk insurance against “all risks of physical loss,” including collapse and transit coverage, during construction of such Improvements, covering the total value of work performed and equipment, supplies and materials furnished.  Said policy of insurance shall contain the “permission to occupy upon completion of work or occupancy” endorsement;

F.                                          If requested by Beneficiary, insurance against loss of occupancy or use arising from any breakdown of pressure vessels, air tanks, boilers, machinery, pressure piping, heating, air conditioning and elevator equipment and escalator equipment, provided the Improvements contain equipment of such nature, in such amounts as are reasonably satisfactory to Beneficiary;

G.                                        Insurance against loss or damage to the Personal Property by fire and other risks covered by insurance of the type known as “fire and extended coverage”;

H.                                       Comprehensive public liability insurance, including both bodily injury and property damage, in form, amounts and with companies (including companies with an A.M. Best’s rating of A-/X or better) approved by Beneficiary;

I.                                            Applicable Flood Insurance if the Property is located in a flood zone and earthquake insurance coverage in an amount equal to or greater than the principal amount of the Loan.

J.                                            Such other insurance and in such amounts as may from time to time be required by Beneficiary against the same or other hazards and is then available on commercially reasonable terms; and

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k.                                          All policies of insurance required by the terms of this Deed of Trust shall contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policy notwithstanding any act or negligence of Beneficiary which might otherwise result in forfeiture of said insurance and the further agreement of the insurer waiving all rights of set off, counterclaim or deductions against Beneficiary.

1.05                            Delivery of Policies, Payment of Premiums .  All policies of insurance shall be issued by companies and in amounts in each company satisfactory to Beneficiary.

All policies of insurance shall have attached thereto a lender’s loss payable endorsement for the benefit of Beneficiary in form satisfactory to Beneficiary.  Trustor shall furnish Beneficiary with a certificate or an original copy of all policies of required insurance.  If Beneficiary consents to Trustor providing any of the required insurance through blanket policies carried by Trustor and covering more than one location, then Trustor shall furnish Beneficiary with a certificate of insurance for each such policy setting forth the coverage, the limits of liability, the name of the carrier, the policy number, and the expiration date.  At least thirty (30) days prior to the expiration of each such policy, Trustor shall furnish Beneficiary with evidence satisfactory to Beneficiary of the payment of premium and the re-issuance of a policy continuing insurance in force as required by this Deed of Trust.  All such policies shall contain a provision that such policies will not be canceled or materially amended, which term shall include any reduction in the scope or limits of coverage, without at least fifteen (15) days’ prior written notice to Beneficiary.  In the event Trustor fails to provide, maintain, keep in force or deliver and furnish to Beneficiary the policies of insurance required by this Section, Beneficiary may procure such insurance or single interest insurance for such risks covering Beneficiary’s interest, and Trustor will pay all premiums thereon promptly upon demand by Beneficiary, and until such payment is made by Trustor, the amount of all such premiums, together with interest thereon at the rate provided in the Note, shall be secured by this Deed of Trust.  If requested by Beneficiary, after an event of default, Trustor shall deposit with Beneficiary in monthly installments, an amount equal to one-twelfth of the estimated aggregate annual insurance premiums on all policies of insurance required by this Deed of Trust.  Trustor further agrees, upon Beneficiary’s request, to cause all bills, statements or other documents relating to the foregoing insurance premiums to be sent or mailed directly to Beneficiary.  Upon receipt of such bills, statements or other documents, and providing Trustor has deposited sufficient funds with Beneficiary pursuant to this Section l.05, Beneficiary shall pay such amounts as may be due thereunder out of the funds so deposited with Beneficiary.  If at any time and for any reason the funds deposited with Beneficiary are or will be insufficient to pay such amounts as may then or subsequently be due, Beneficiary shall notify Trustor and Trustor shall immediately deposit an amount equal to such deficiency with Beneficiary.  Notwithstanding the foregoing, nothing contained herein shall cause Beneficiary to be deemed a trustee of said funds or to be obligated to pay any amounts in excess of the amount of funds deposited with Beneficiary pursuant to this Section l.05.  Beneficiary may commingle said reserve with its own funds and Trustor shall be entitled to no interest thereon.

1.06                            Insurance Proceeds .  After the happening of any casualty to the Trust Estate or any part thereof, Trustor shall give prompt written notice thereof to Beneficiary.  Provided that there is no default under the terms of the Loan Instruments and, except as otherwise provided in the Agreement, if the damage to the Improvements does not exceed fifty percent (50%) of the

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insurable value thereof or Trustor is obligated under the terms of any contract or agreement with another party to deliver the proceeds or repair or rebuild and if Trustor shall within one hundred twenty (120) days after any such loss give notice to Beneficiary that it elects to repair or rebuild or cause to be repaired and rebuilt the Trust Estate, except as otherwise provided in the Agreement, Beneficiary shall have no option to retain insurance proceeds and apply the same to the payment of the sum secured by this Deed of Trust, but shall pay such proceeds over to reimburse the Trustor from time to time, for expenditures made for repair of the improvements on the Property or for the erection of the improvements on the Property or for the erection of new improvements in their place as hereafter provided.  If Beneficiary is not required to pay over such proceeds to the Trustor under the Agreement or otherwise, then the insurance proceeds shall be applied by Beneficiary toward payment of the sum secured by this Deed of Trust and the excess, if any, shall be paid over to Trustor without any yield maintenance or prepayment penalty or premium, provided, however, that Beneficiary may elect to apply such proceeds to repair or rebuild the Trust Estate.  Except as otherwise set forth above or in the Agreement:

A.                                        In the event of election to repair or rebuild by either Trustor or Beneficiary, such insurance proceeds shall be held by the Beneficiary as a fund for the purpose of paying for the cost of work required to repair or restore the Trust Estate and doing such work as may be necessary to protect the Trust Estate against further injury.  The Beneficiary may commingle such fund with its own funds and Trustor shall be entitled to no interest thereon.  At the request of Borrower, Lender shall deposit the insurance proceeds in an independent interest bearing account.  If the insurance proceeds held by the Beneficiary shall exceed such cost, such excess shall belong to Beneficiary upon completion of and payment for such work, and such excess shall be applied to the payment of the sums secured by this Deed of Trust.

B.                                        In the event Trustor is proceeding with repairs or rebuilding, such insurance proceeds shall be paid by the Beneficiary as the work progresses upon Trustor’s request and against a certificate by Trustor dated no more than thirty (30) days prior to such request, setting forth the following:

(l)  That the sum then requested either has been paid by Trustor, or is justly due to contractors, subcontractors, materialmen, engineers, architects, or other persons who have rendered services or furnished materials for the work therein specified, and giving a brief description of such services and materials and the several amounts so paid or due to each of said persons in respect thereof; and

(2)  That the cost, as estimated by the persons signing such certificate, of the work required to be done subsequent to the date of such certificate in order to complete the same, does not exceed ninety percent (90%) of the insurance proceeds or any other funds referable to the work remaining in the hands of the Beneficiary after payment of the sum requested in such certificate.

C.                                        An opinion of counsel or other evidence, reasonably satisfactory to the Beneficiary, shall be furnished, to the effect that there has not been filed with respect to the Trust Estate or any part thereof any vendor’s, mechanic’s, laborer’s, materialmen’s or other like lien,

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which has not been discharged of record, except such as will be discharged by payment of the amount then requested.

1.07                            Assignment of Policies upon Foreclosure .  In the event of foreclosure of this Deed of Trust or other transfer of title or assignment of the Trust Estate in extinguishment in whole or in part, of the debt secured hereby, all right, title and interest of Trustor in and to all policies of insurance required by this Section shall inure to the benefit of and pass to the successor in interest to Trustor or the purchaser or grantee of the Trust Estate.

1.08                            Indemnification; Subrogation; Waiver of Offset .

A.                                        If Beneficiary is made a party defendant to any litigation concerning this Deed of Trust or the Trust Estate or any part thereof or interest therein, or the occupancy thereof by Trustor, then Trustor shall indemnify, defend and hold Beneficiary harmless from all liability by reason of said litigation, including reasonable attorneys’ fees and expenses incurred by Beneficiary in any such litigation, whether or not any such litigation is prosecuted to judgment.  If Beneficiary commences an action against Trustor to enforce any of the terms hereof or because of the breach by Trustor of any of the terms hereof, or for the recovery of any sum secured hereby, Trustor shall pay to Beneficiary reasonable attorneys’ fees and expenses, and the right to such attorneys’ fees and expenses shall be deemed to have accrued on the commencement of such action, and shall be enforceable whether or not such action is prosecuted to judgment.  If Trustor breaches any term of this Deed of Trust, Beneficiary may employ an attorney or attorneys to protect its rights hereunder, and in the event of such employment following any breach by Trustor, Trustor shall pay Beneficiary reasonable attorneys’ fees and expenses incurred by Beneficiary, whether or not an action is actually commenced against Trustor by reason of breach.

B.                                        Trustor waives any and all right to claim or recover against Beneficiary, its officers, employees, members, agents and representatives, for loss of or damage to Trustor, the Trust Estate, Trustor’s property or the property of others under Trustor’s control from any loss arising in connection with any election of Beneficiary not to obtain any policies of insurance required in Section l.04.

C.                                        All sums payable by Trustor hereunder or under any of the Loan Instruments shall be paid without notice, demand, counterclaim, set off, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the obligations and liabilities of Trustor hereunder shall in no way be released, discharged or otherwise affected (except as expressly provided herein) by reason of:  (i) any damage to or destruction of or any condemnation or similar taking of the Trust Estate or any part thereof; (ii) any restriction or prevention of or interference with any use of the Trust Estate or any part thereof; (iii) any title defect or encumbrance or any eviction from the Property or any part thereof by title paramount or otherwise; or (iv) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Beneficiary, or any action taken with respect to this Deed of Trust by any trustee or receiver of Beneficiary, or by any court, in any such proceeding; whether or not Trustor shall have notice or knowledge of any of the foregoing.

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1.09                            Compliance with Environmental Laws .  Trustor represents and warrants to Beneficiary to the best of Trustor’s knowledge and except as otherwise disclosed in writing to Beneficiary that: (1) During the period of Trustor’s ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Trustor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Beneficiary in writing or in Trustor’s public reports filed with the Securities and Exchange Commission, (a) any breach or violation of any Environmental Laws, (b) any use generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Beneficiary in writing, (a) neither Trustor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws.  Trustor authorizes Beneficiary and its agents to enter upon the Property to make such inspections and tests, at Trustor’s expense, as Beneficiary may deem reasonably appropriate to determine compliance of the Property with this section of the Deed or Trust.  Any inspections or tests made by Beneficiary shall be for Beneficiary’s purposes only and shall not be construed to create any responsibility or liability on the part of Beneficiary to Trustor or to any other person.  The representations and warranties contained herein are based on Trustor’s due diligence in investigating the Property for Hazardous Substances.  Trustor hereby (1) releases and waives any future claims against Beneficiary for indemnity or contribution in the event Trustor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify and hold harmless Beneficiary against any and all claims, losses, liabilities, damages, penalties and expenses which Beneficiary may directly or indirectly sustain or suffer resulting from a breach of this Section of the Deed of Trust or as a consequence of any use, generation, manufacturer, storage, disposal, release or threatened release occurring prior to Trustor’s ownership or interest in the Property, whether or not the same was or should have been known to Trustor.  The provisions of this section of the Deed of Trust, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Deed of Trust and shall not be affected by Beneficiary’s acquisition of any interest in the Property, whether by foreclosure or otherwise.

For purposes of this Section, “Hazardous Substances” mean materials that because of their quantity, concentration or physical, chemical or infectious properties may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or handled.  The words “Hazardous Substances” are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or wastes as defined by or listed under any federal or Utah State environmental laws (“Environmental Laws”).  For purposes of this Deed of Trust Hazardous Substances include petroleum and petroleum by-products, asbestos and hazardous chemicals.

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The obligations undertaken by Trustor in this Section 1.09 are in addition to and not in derogation of any obligations, warrants and covenants set forth in the Environmental Indemnity Agreement of even date herewith.

1.10                    Taxes and Impositions .

A.                                Trustor agrees to pay, at least ten (10) days prior to delinquency, all real property taxes and assessments, general and special, and all other taxes and assessments of any kind or nature whatsoever, including without limitation non-governmental levies or assessments such as maintenance charges, owner association dues or charges or fees, levies or charges resulting from covenants, conditions and restrictions affecting the Trust Estate, which are assessed or imposed upon the Trust Estate, or become due and payable, and which create, may create or appear to create a lien upon the Trust Estate, or any part thereof, or upon the Personal Property, equipment or other facility used in the operation or maintenance thereof (all of which taxes, assessments and other governmental charges of like nature are hereinafter referred to as “Impositions”); provided, however, that if, by law, any such Imposition is payable, or may at the option of the taxpayer be paid, in installments, Trustor must pay the same, together with any accrued interest on the unpaid balance of such Imposition, in installments as the same become due and before any fine, penalty, interest or cost may be added thereto for the nonpayment of any such installment and interest.

B.                                If at any time after the date hereof there shall be assessed or imposed (i) a tax or assessment on the Trust Estate in lieu of or in addition to the Impositions payable by Trustor pursuant to subparagraph A hereof, or (ii) a license fee, tax or assessment imposed on Beneficiary and measured by or based in whole or in part upon the amount of the outstanding obligations secured hereby, then all such taxes, assessments or fees shall be deemed to be included within the term “impositions” as defined in subparagraph A hereof, and Trustor shall pay and discharge the same as herein provided with respect to the payment of Impositions or, at the option of Beneficiary, all obligations secured hereby, together with all accrued interest thereon, shall immediately become due and payable.  Anything to the contrary herein notwithstanding, Trustor shall have no obligation to pay any franchise, estate, inheritance, income, excess profits or similar tax levied on Beneficiary or on the obligations secured hereby.

C.                                Subject to the provisions of subparagraph D of this Section l.10, Trustor covenants to furnish Beneficiary within thirty (30) days after the date upon which any such Imposition is due and payable by Trustor, official receipts of the appropriate taxing authority, or other proof satisfactory to Beneficiary, evidencing the payments thereof.

D.                                Trustor shall have the right before any delinquency occurs to contest or object to the amount or validity of any such Imposition by appropriate legal proceedings, but this shall not be deemed or construed in any way as relieving, modifying or extending Trustor’s covenant to pay any such Imposition at the time and in the manner provided in this Section l.10, unless Trustor has given prior written notice to Beneficiary of Trustor’s intent to so contest or object to any Imposition, and unless, (i) at Beneficiary’s satisfaction that the legal proceedings shall conclusively operate to prevent the sale of the Trust Estate, or any part thereof, to satisfy such Imposition prior to final determination of such proceedings; or (ii) Trustor shall furnish a good

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and sufficient bond or surety as requested by and satisfactory to Beneficiary; or (iii) Trustor shall have provided a good and sufficient undertaking as may be required or permitted by law to accomplish a stay of such proceedings.

E.                                 After an event of default, at the request of Beneficiary, Trustor shall pay to Beneficiary, on the day installments of principal and/or interest are payable under the Note, until the Indebtedness is paid in full, an amount equal to one-twelfth of the annual Impositions reasonably estimated by Beneficiary to pay the installment of taxes next due on the Trust Estate.  In such event, Trustor further agrees to cause all bills, statements or other documents relating to Impositions to be sent or mailed directly to Beneficiary.  Upon receipt of such bills, statements or other documents, and providing Trustor has deposited sufficient funds with Beneficiary pursuant to this Section l.10, Beneficiary shall pay such amounts as may be due thereunder out of the funds so deposited with Beneficiary.  If at any time and for any reason the funds deposited with Beneficiary are or will be insufficient to pay such amounts as may then or subsequently be due, Beneficiary shall notify Trustor and Trustor shall immediately deposit an amount equal to such deficiency with Beneficiary.  Notwithstanding the foregoing, nothing contained herein shall cause Beneficiary to be deemed a trustee of said fund or to be obligated to pay any amounts in excess of the amount of funds deposited with Beneficiary pursuant to this Section 1.10.  Beneficiary shall not be obliged to pay or allow any interest on any sums held by Beneficiary pending disbursement or application hereunder, and Beneficiary may impound or reserve for future payment of Impositions such portion of such payments as Beneficiary may in its absolute discretion deem proper.  Should Trustor fail to deposit with Beneficiary (exclusive of that portion of said payments which has been applied by Beneficiary on the principal of or interest on the indebtedness secured by the Loan Instruments) sums sufficient to fully pay such Impositions at least thirty (30) days before delinquency thereof, Beneficiary may, at Beneficiary’s election, but without any obligation so to do, advance any amounts required to make up the deficiency, which advances, if any, shall be secured hereby and shall be repayable to Beneficiary as herein elsewhere provided, or at the option of Beneficiary, Beneficiary may, without making any advance whatever, apply any other sums held by Beneficiary against any obligation of the Trustor secured hereby, including but not limited to the payment of Impositions.  Should any default occur or exist on the part of the Trustor in the payment or performance of any of Trustor’s obligations under the terms of the Loan Instruments, Beneficiary may, at any time at Beneficiary’s option, apply any sums or amounts in its hands received pursuant hereto, or as rents or income of the Trust Estate or otherwise, upon any indebtedness or obligation of the Trustor secured hereby in such manner and order as Beneficiary may elect.  Beneficiary agrees that receipt, use or application of any such sums paid by Trustor to Beneficiary hereunder shall not be construed to affect the maturity of any indebtedness secured by this Deed of Trust or any of the rights or powers of Beneficiary or Trustee under the terms of the Loan Instruments or any of the obligations of Trustor under this Deed of Trust.

F.                                  Trustor covenants and agrees not to suffer, permit or initiate the joint assessment of the Property and the Personal Property, or any other procedure whereby the lien of the real property taxes and the lien of the personal property taxes shall be assessed, levied or charged to the Trust Estate as a single lien.

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G.                                If requested by Beneficiary, Trustor shall cause to be furnished to Beneficiary a tax reporting service covering the Trust Estate of the type, duration, and with a company satisfactory to Beneficiary.

1.11                    Utilities .  Trustor agrees to pay when due all utility charges which are incurred by Trustor for the benefit of the Trust Estate or which may become a charge or lien against the Trust Estate for gas, electricity, water or sewer services furnished to the Trust Estate and all other assessments or charges of a similar nature, whether public or private, affecting the Trust Estate or any portion thereof, whether or not such taxes, assessments or charges are liens thereon.

1.12                    Actions Affecting Trust Estate .  Trustor agrees to appear in and contest any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney’s fees, in any such action or proceeding in which Beneficiary or Trustee may appear.

1.13                    Actions by Trustee and/or Beneficiary to Preserve Trust Estate .  Should Trustor fail to make any payment or to do any act as and in the manner provided in any of the documents evidencing the Indebtedness, the Loan Instruments or the Agreement, Beneficiary and/or Trustee, each in its own discretion, without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof.  In connection therewith (without limiting their general powers), Beneficiary and/or Trustee shall have and are hereby given the right, but not the obligation, (i) to enter upon and take possession of the Trust Estate; (ii) to make additions, alterations, repairs and improvements to the Trust Estate which they or either of them may consider necessary or proper to keep the Trust Estate in good condition and repair; (iii) to appear and participate in any action or proceeding affecting or which may affect the security hereof or the rights or powers of Beneficiary or Trustee; (iv) to pay, purchase, contest or compromise any encumbrance, claim, charge, lien or debt which in the judgment of either may affect or appears to affect the security of this Deed of Trust or be prior or superior hereto; and (v) in exercising such powers, to pay necessary expenses, including employment of counsel or other necessary or desirable consultants.  Trustor shall, immediately upon demand therefor by Beneficiary, pay all costs and expenses incurred by Beneficiary in connection with the exercise by Beneficiary of the foregoing rights, including without limitation costs or evidence of title, court costs, appraisals, surveys and attorney’s fees.

1.14                    Survival of Warranties .  Trustor agrees not to cancel, amend, transfer, or assign any of the agreements referred to herein without the written consent of Beneficiary.  All representations, warranties and covenants of Trustor contained herein or in the Agreement shall survive the close of the Agreement and shall remain continuing obligations, warranties and representations of Trustor during any time when any portion of the Indebtedness secured by this Deed of Trust remains outstanding.

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1.15                    Eminent Domain .  That should the Trust Estate, or part thereof or interest therein, be taken or damaged by reason of any public improvement or condemnation proceeding, or in any other manner (“Condemnation”), or should Trustor receive any notice or other information regarding such proceeding, Trustor shall give prompt written notice thereof to Beneficiary.

A.                                Beneficiary shall be entitled to all compensation, awards and other payments of relief therefor, and shall be entitled at its option to commence, appear in and prosecute in its own name any action or proceedings.  Beneficiary shall also be entitled to make any compromise or settlement in connection with such taking or damage.  All such compensation, awards, damages, rights of action and proceeds awarded to Trustor (the “Proceeds”) are hereby assigned to Beneficiary and Trustor agrees to execute such further assignments of the Proceeds as Beneficiary or Trustee may require.

B.                                In the event any portion of the Trust Estate is so taken or damaged,  Beneficiary shall have the option, in its sole and absolute discretion, to apply all such Proceeds, after deducting therefrom all costs and expenses (regardless of the particular nature thereof and whether incurred with or without suit), including attorneys’ fees incurred by it in connection with such Proceeds, upon any indebtedness secured hereby and in such order as Beneficiary may determine, or to apply all such Proceeds, after such deductions, to the restoration of the Trust Estate upon such conditions as Beneficiary may determine.  Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.

1.16                    Additional Security .  That in the event Beneficiary at any time holds additional security for any of the obligations secured hereby, it may enforce the sale thereof or otherwise realize upon the same, at its option, either before or concurrently herewith or after a sale is made hereunder.  No prior lien upon the Property shall be released as a result of this Trust Deed.  No merger will occur as a result of Beneficiary having more than one lien upon the Property.

1.17                    Appointment of Successor Trustee .  That Beneficiary may, from time to time, by a written instrument executed and acknowledged by Beneficiary, mailed to Trustor and recorded in the county in which the Trust Estate is located, and by otherwise complying with the provisions of the applicable law of the State of Utah, substitute a successor or successors to the Trustee named herein or acting hereunder.

1.18                    Successors and Assigns .  That this Deed of Trust applies to, inures to the benefit of and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns.  The term “Beneficiary” shall mean the owner and holder of the Indebtedness, or of any undivided interest therein, including all Participants, if any, in said loan to Trustor holding certificates of participation in said Note, or the equivalent, whether or not named as beneficiary herein.

1.19                    Inspections .  That Beneficiary, or its agents, representatives or workmen, are authorized to enter at any reasonable time upon or in any part of the Trust Estate for the purpose

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of inspecting the same and for the purpose of performing any of the acts it is authorized to perform under the terms of any of the Loan Instruments.

1.20                    Liens .  To pay and promptly discharge, at Trustor’s cost and expense, all liens, encumbrances and charges upon the Trust Estate, or any part thereof or interest therein, provided that the existence of any mechanic’s, laborers, materialman’s, supplier’s or vendor’s lien or right thereto or other Permitted Liens (as defined in the Loan Agreement) shall not constitute a violation of this section if payment is not yet due under the contract which is the foundation thereof and if such contract does not postpone payment for more than fifty-five (55) days after the performance thereof.  Trustor shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided Trustor shall first deposit with Beneficiary a bond or other security satisfactory to Beneficiary in such amounts as Beneficiary shall reasonably require, but not more than one and one-half (150%) of the amount of the claim, provided further than Trustor shall thereafter diligently proceed to cause such lien, encumbrance or charge to be removed and discharged.  If Trustor shall fail to discharge any such lien, encumbrance or charge, then, in addition to any other right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same, either by paying the amount claimed to be due, or by procuring the discharge of such lien by depositing in court a bond or the amount claimed or otherwise giving security for such claim, or in such manner as is or may be prescribed by law.

1.21                    Trustee’s Powers .  At any time, or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust and the Indebtedness secured hereby for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby or the effect of this Deed of Trust upon the remainder of said Trust Estate, Trustee may (i) reconvey any part of said Trust Estate, (ii) consent in writing to the making of any map or plat thereof, (iii) join in granting any easement or creating any restriction therein, or (iv) join in any extension agreement or any agreement subordinating the lien or charge hereof.

1.22                    Beneficiary’s Powers .  Without affecting the liability of any other person liable for the payment of any obligation herein mentioned, and without affecting the lien or charge of this Deed of Trust upon any portion of the Property, not then or theretofore released as security for the full amount of all unpaid obligations, Beneficiary may, from time to time (i) release any person so liable, (ii) extend the maturity or alter any of the terms of any such obligation, (iii) grant other indulgences, (iv) release or reconvey, or cause to be released or reconveyed at any time at Beneficiary’s option any parcel, portion or all of the Trust Estate, (v) take or release any other or additional security for any obligation herein mentioned, or (vi) make compositions or other arrangements with debtors in relation thereto.

1.23                    Financial Statements .  Upon written request of the Beneficiary, Trustor shall provide to Lender with yearly financial statements, certified by Trustor, within 90 days after the end of each fiscal year, as applicable.  Trustor shall maintain its books and records in accordance with generally accepted accounting principles, applied on a consistent basis or otherwise and that fairly and accurately reflects Trustor’s financial condition, and permit Lender to examine and audit Trustor’s books and records at all reasonable times.

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1.24                    Tradenames .  At the request of Beneficiary, Trustor shall execute a certificate in form satisfactory to Beneficiary listing the tradenames under which Trustor intends to operate and representing and warranting that Trustor does business under no other tradenames with respect to the Trust Estate.  Trustor shall immediately notify Beneficiary in writing of any change in said tradenames and will, upon request of Beneficiary, execute any additional financing statements and other certificates revised to reflect the change in trade name.

1.25                    Further Assurances .  Trustor (Debtor) will, from time to time, at Beneficiary’s reasonable request, for the purpose of perfecting Lender’s security interest in the Trust Estate, execute supplementary security agreements, trust deeds or equivalent security or lien instruments and other instruments of further assurance with respect to the Trust Estate or any part thereof.

1.26                    Transfer of Interest and/or Further Encumbrance .  The Trustor shall not transfer, or further encumber, the Trust Estate, or any part thereof, without the prior written consent of the Beneficiary.  Any transfer of Trustor’s interest in the Trust Estate by the Trustor, with Beneficiary’s consent only, shall be subject to this Deed of Trust and any such transferee shall assume all of the Trustor’s obligations hereunder and agree to be bound by all provisions and perform all obligations contained herein.  Absent Beneficiary’s consent, any assignment or assumption of Trustor’s interest herein will not relieve Trustor of any obligations pursuant to the Note, the Trust Deed or other loan documents.   Withdrawal of Trustor’s Manager, the change of more than ten percent (10%) of the membership interests of the Trustor, or the Manager of Trustor shall attempt to transfer (directly or indirectly) the Trust Estate to any entity, without the prior written consent of Beneficiary, shall be deemed a transfer hereunder and shall be a default under the provisions of this Paragraph, Paragraph 3.01, and the Loan Documents.

1.27                    Trustor’s Prepayment of the Indebtedness .  Prior to or in conjunction with the occurrence of any of the following events, Trustor will prepay the Loan in full: (i) Guarantor shall cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change ownership, change its name, dissolve or effectuate a material change in its, or affiliate’s, capital structure, (ii) Guarantor engages in any business activities substantially different than those in which Guarantor is presently engaged, (iii) the decision making and control of the Trustor and/or the Guarantor shall change in any material respect from the effective date of this Loan Agreement, (iv) the diminution in ownership of Patrick Byrne of the Guarantor, (v) loss of current management control of the Guarantor by Patrick Byrne, and/or (vi) Guarantor, or any of its affiliates, shall materially change its/their ownership and/or equity structure.

1.28                    Security Agreement; Financing Statements .  The following provisions shall apply to this Deed of Trust as a Security Agreement, see also Exhibit “C” attached hereto:

A.             This documents shall constitute a security agreement to the extent any of the Trust Estate includes fixtures and/or personal property, as more fully described in the “Together With Clauses” on pages 1, 2 and 3 above.  Beneficiary shall have all of the rights of a secured party under the Utah Uniform Commercial Code.

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B.             Upon the request of Beneficiary, Trustor shall execute financing statements and take any other action requested by Beneficiary to perfect Beneficiary’s security interest in any fixture and/or personal property constituting part of the Trust Estate.  Beneficiary may file executed counterparts or copies of this Deed of Trust as a financing statement.  Upon default, Trustor shall not remove any of the fixtures or personal property from the Property and shall assemble any Personal Property at a location and in a manner requested by the Beneficiary.

ARTICLE II

ASSIGNMENT OF RENTS, ISSUES AND PROFITS

2.01                    Assignment of Rents .  Trustor hereby assigns and transfers to Beneficiary all the rents, issues and profits of the Trust Estate, and hereby gives to and confers upon Beneficiary the right, power and authority to collect such rents, issues and profits.  Trustor irrevocably appoints Beneficiary its true and lawful attorney-in-fact, at the option of Beneficiary at any time and from time to time, to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in the name of Trustor or Beneficiary, for all such rents, issues and profits and apply the same to the indebtedness secured hereby; provided, however, that Trustor shall have the right to collect such rents, issues and profits (but not more than two (2) months in advance) prior to or at any time there is not an event of default under any of the Loan Instruments.  The assignment of the rents, issues and profits of the Trust Estate in this Article II is intended to be an absolute assignment from Trustor to Beneficiary and not merely the passing of a security interest.  The rents, issues and profits are hereby assigned absolutely by Trustor to Beneficiary, contingent only upon the occurrence of an event of default under any of the Loan Instruments.

2.02                    Collection Upon Default .  Upon any event of default under any of the Loan Instruments, Beneficiary may, at any time without notice, either in person, by agent or by a receiver appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of the Trust Estate, or any part thereof, in its own name sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorney’s fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine.  The collection of such rents, issues and profits, or the entering upon and taking possession of the Trust Estate, or other application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done in response to such default or pursuant to such notice of default; nor shall it constitute an assumption by the Beneficiary or any of the obligations, duties or covenants of Trustor related to such rents, issues and profits.

ARTICLE III

REMEDIES UPON DEFAULT

3.01                    Events of Default .  Time is of the essence hereof.  Any of the following events shall be deemed an event of default hereunder:

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A.                                Default shall be made in the payment of any installment of principal or interest or any other sum secured hereby when due, subject to the grace periods and cure provisions set forth in the Agreement; or

B.                                Trustor or the Guarantor of all or any portion of the Indebtedness  shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors; or shall seek, consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Trustor, or of all or any part of the Trust Estate, or of any or all of the royalties, revenues, rents, issues or profits thereof, or shall make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or

C.                                A court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against Trustor seeking a reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment or decree shall remain un-vacated and un-stayed for an aggregate of sixty (60) days (whether or not consecutive) from the first date of entry thereof; or any trustee, receiver or liquidator of Trustor, or of all or any part of the Trust Estate, or of any of all of the royalties, revenues, rents, issues or profits thereof, shall be appointed without the consent or acquiescence of Trustor and such appointment shall remain un-vacated and un-stayed for an aggregate of sixty (60) days (whether or not consecutive); or

D.                                A writ of execution or attachment or any similar process shall be issued or levied against all or any part of or interest in the Trust Estate, or any judgment involving monetary damages shall be entered against Trustor, which shall become a lien on the Trust Estate or any portion thereof or interest therein, and such execution, attachment or similar process or judgment is not released, bonded, satisfied, vacated or stayed within sixty (60) days after its entry or levy; or

E.                                 There has occurred a breach of or default under any term, covenant, agreement, condition, provision, representation or warranty contained in any of the Loan Instruments, including specifically the Agreement, or any part thereof, not referred to in this Section 3.01; or

F.                                  Failure of Trustor to make any payment for taxes or insurance as required hereby within ten (10) business days after notice of such failure from Beneficiary or Trustee; or

G.                                Default by Trustor in any loan, extension of credit, guarantee, security agreement, or any other agreement in favor of any other creditor that may materially affect Trustor’s ability to repay the Indebtedness or perform its obligations herein contained;

H.                               A default by the Guarantor in its guarantee of the Indebtedness;

I.                                    Any warranty, representation or statement made by Trustor to Beneficiary is false or misleading in any material respect; or

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J.                                    The sale, transfer, assignment, or hypothecation by Trustor of any interest (fee or mortgage) in the Property to a third-party without the prior written consent of the Beneficiary.

3.02                    Acceleration upon Default, Additional Remedies .  In the event of any event of default, Beneficiary may declare all Indebtedness secured hereby to be due and payable, and the same shall thereupon become due and payable without any presentment, demand, protest or notice of any kind.  Thereafter Beneficiary may:

A.                                Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court and without regard to the adequacy of its security, enter upon and take possession of the Trust Estate, or any part thereof, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Trust Estate, or part thereof or interest therein, increase the income therefrom or protect the security hereof and, with or without taking possession of the Trust Estate, sue for or otherwise collect the rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys’ fees, upon any indebtedness secured hereby, all in such order as Beneficiary may determine.  The entering upon and taking possession of the Trust Estate, the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done in response to such default or pursuant to such notice of default and, notwithstanding the continuance in possession of the Trust Estate or the collection, receipt and application of rents, issues or profits, Trustee or Beneficiary shall be entitled to exercise every right provided for in any of the Loan Instruments or by law upon occurrence of any event of default, including the right to exercise the power of sale;

B.                                Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof;

C.                                Exercise any or all of the remedies available to a secured party under the Utah Uniform Commercial Code, including, but not limited to:

(1)  Either personally, or by means of a court appointed receiver, take possession of all or any of the Personal Property and exclude therefrom Trustor and all others claiming under the Trustor, and thereafter hold, lease, use, operate, manage, maintain and control, make repairs, replacements, alterations, additions and improvements to and exercise all rights and powers of the Trustor in respect to the Personal Property or any part thereof.  In the event Beneficiary demands or attempts to take possession of the Personal Property in the exercise of any rights under any of the Loan Instruments, Trustor promises and agrees to promptly turn over and deliver complete possession thereof to Beneficiary;

(2)  Without notice to or demand upon Trustor, make such payments and do such acts as Beneficiary may deem necessary to protect its security interest in the Personal Property, including without limitation, paying, purchasing, contesting or compromising any encumbrance, charge or lien which is prior to or superior to the security interest granted hereunder, and in exercising any such powers or authority to pay all expenses incurred in connection therewith;

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(3)  Require Trustor to assemble the Personal Property, or any portion thereof, at a place designated by Beneficiary and reasonably convenient to both parties, and to promptly deliver such Personal Property to Beneficiary, or an agent or representative designated by it.  Beneficiary, and its agents and representatives, shall have the right to enter upon any or all of Trustor’s premises and property to exercise Beneficiary’s rights hereunder;

(4)  Sell, lease or otherwise dispose of the Personal Property at public sale, with or without having the Personal Property at the place of sale, and upon such terms and in such manner as Beneficiary may determine.  Beneficiary may be a purchaser at any such sale;

(5)  Unless the Personal Property is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Beneficiary shall give Trustor at least ten (10) days’ prior written notice of the time and place of any public sale of the Personal Property or other intended disposition thereof.  Such notice may be mailed to Trustor at the address set forth at the beginning of this Deed of Trust.

D.                                Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor’s interest in the Trust Estate to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of the County in which the Trust Estate is located.

E.                                 The waiver by Beneficiary of any default shall not constitute a waiver of any other or subsequent default.

3.03                    Foreclosure by Power of Sale .  Should Beneficiary elect to foreclose by exercise of the power of sale herein contained, Beneficiary shall notify Trustee and shall, upon the written request of the Trustee, deposit with Trustee this Deed of Trust and the Note and such receipts and evidence of expenditures made and secured hereby as Trustee may require.

A.                                Upon receipt of such notice from Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust.  Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and after Notice of Sale having been given as required by law, sell the Trust Estate at the time and place of sale fixed by it in said Notice of Sale, either as a whole, or in separate lots or parcels or items as Trustee shall deem expedient, and in such order as it may determine, but subject to any statutory right of Trustor to direct the order in which such property, if consisting of several known lots or parcels, shall be sold, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale.  Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty express of implied.  The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof.  Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers.

B.                                After deducting all costs, fees and expenses of Trustee and of this Trust, including costs or evidence of title in connection with sale, and all attorneys’ fees incurred in connection

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therewith, Trustee shall apply the proceeds of sale to payment of: All sums expended under the terms hereof, not then repaid, with accrued interest at the rate specified in the Note; all other sums then secured hereby and the remainder, if any, to the person or persons legally entitled thereto.

C.                                Trustee may postpone sale of all or any portion of the Trust Estate by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement or subsequently noticed sale, and without further notice, except as required by Utah law, make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale.

3.04                    Foreclosure as Mortgage .  Should Beneficiary elect to foreclose this Deed of Trust in the manner provided by law for the foreclosure of mortgages on real property, Beneficiary shall be entitled to recover in such proceeding all costs and expenses incident thereto, including a reasonable attorney’s fee in such amount as shall be fixed by the court.  Beneficiary shall be entitled to possession of the Property during any redemption period allowed under the laws of the State of Utah.

3.05                    Appointment of Receiver .  If an event of default described in Section 3.01 of this Deed of Trust shall have occurred and be continuing, Beneficiary, as a matter of right and without notice to Trustor or anyone claiming under Trustor, and without regard to the then value of the Trust Estate or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Trust Estate, and Trustor hereby irrevocably consents to such appointment and waives notice of any application therefor.  Any such receiver or receivers shall have all the usual powers and duties of Beneficiary in case of entry as provided in Section 3.02 and shall continue as such and exercise all such powers until the date of confirmation of sale of the Trust Estate unless such receivership is sooner terminated.

3.06                    Remedies Not Exclusive .  Trustee and Beneficiary, and each of them, shall be entitled to enforce payment and performance of any indebtedness or obligations secured hereby and to exercise all rights and powers under this Deed of Trust or under any Loan Instrument or other agreement or any laws now or hereafter in force, notwithstanding some or all of the said indebtedness and obligations secured hereby may now or hereafter be otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment or otherwise.  Neither the acceptance of this Deed of Trust nor its enforcement, whether by court action or pursuant to the power of sale or other powers herein contained, shall prejudice or in any manner affect Trustee’s or Beneficiary’s right to realize upon or enforce any other security now or hereafter held by Trustee or Beneficiary, it being agreed that Trustee and Beneficiary, and each of them, shall be entitled to enforce this Deed of Trust and any other security now or hereafter held by Beneficiary or Trustee in such order and manner as they or either of them may in their absolute discretion determine.  No remedy herein conferred upon or reserved to Trustee or Beneficiary is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.  Every power or remedy given by any of the Loan Instruments to Trustee or Beneficiary or to which either of them may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Trustee or Beneficiary, and either of them may pursue inconsistent remedies.  The failure on the part of Beneficiary to promptly enforce any right hereunder shall not operate as a waiver of such right.

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3.07                    Request for Notice .  Trustor hereby requests a copy of any notice of default and that any notice of sale hereunder be mailed to it at the address set forth in the first paragraph of this Deed of Trust.

ARTICLE IV

MISCELLANEOUS

4.01                    Governing Law .  This Deed of Trust, including enforcement remedies, shall be governed by the laws of the State of Utah.  In the event that any provision or clause of any of the Loan Instruments conflicts with applicable laws, such conflicts shall not affect other provisions of such Loan Instruments which can be given effect without the conflicting provision, and to this end the provisions of the Loan Instruments are declared to be severable.  This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought.

4.02                    Limitation of Interest .  It is the intent of Trustor and Beneficiary in the execution of this Deed of Trust and the Loan Instruments and all other instruments securing the Note to contract in strict compliance with the laws of the State of Utah governing the obligations evidenced by the Loan Instruments.  In furtherance thereof, Beneficiary and Trustor stipulate and agree that none of the terms and provisions contained in the Loan Instruments shall ever be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum interest rate permitted to be charged by the laws of the State of Utah governing the loan evidenced by the Note.  Trustor, or any guarantor, endorser or other party now or hereafter becoming liable for the payment of the Indebtedness, shall never be liable for unearned interest on the Indebtedness and shall never be required to pay interest on the Indebtedness at a rate in excess of the maximum interest that may be lawfully charged under the laws of the State of Utah and the provisions of this Section shall control over all other provisions of the Loan Instruments and any other document executed in connection herewith which may be in apparent conflict herewith.  In the event any holder of all or any portion of the Indebtedness shall collect monies which are deemed to constitute interest which would otherwise increase the effective interest rate on all or a portion of the Indebtedness to a rate in excess of that permitted to be charged by the laws of the State of Utah, all such sums deemed to constitute interest in excess of the legal rate shall be immediately returned to the Trustor upon such determination, or at the election of Beneficiary may be applied to principal, if said principal has not otherwise been paid.

4.03                    Statements by Trustor .  Trustor, within ten (10) days after being given notice by mail, will furnish to Beneficiary a written statement stating the unpaid principal of and interest on any portion of the Indebtedness and any other amounts secured by this Deed of Trust and stating whether any offset or defense exists against such principal and interest.

4.04                    Reconveyance by Trustee .  Upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and all of the promissory notes included in the Indebtedness to Trustee for cancellation and retention and upon payment by Trustor of Trustee’s fees, Trustee shall reconvey to Trustor, or the person or persons legally entitled thereto, without warranty, any portion of the Trust Estate then held hereunder.  The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness

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thereof.  The grantee in any reconveyance may be described as “the person or persons legally entitled thereto.”

4.05                    Notices .  Whenever Beneficiary, Trustor, or Trustee shall desire to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by certified mail, postage prepaid, return receipt requested, addressed to the address set forth at the beginning of this Deed of Trust.  Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change.

4.06                    Acceptance by Trustee .  Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law.

4.07                    Captions .  The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust.

4.08                    Invalidity of Certain Provisions .  If the lien of this Deed of Trust is invalid or unenforceable as to any part of the Indebtedness, or if the lien is invalid or unenforceable as to any part of the Trust Estate, the unsecured or partially secured portion of the Indebtedness shall be completely paid prior to the payment of the remaining and secured or partially secured portion of the Indebtedness, and all payments made on the Indebtedness, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the Indebtedness which is not secured or fully secured by the lien of this Deed of Trust.

4.09                    Financing Statement .  This Deed of Trust is also intended as a financing statement for both fixtures and personal property under the Utah Uniform Commercial Code.  The Trustor is the Record Owner of the Property.  Any security interest granted hereby shall apply also to proceeds, products and accessions.  Beneficiary shall file such UCC-1 statements as it deems appropriate.  If required by Beneficiary, Trustor shall execute such UCC-1 financing statements as required by Beneficiary.

4.10                    No Merger .  Upon the foreclosure of the lien created by this Deed of Trust on the Trust Estate pursuant to the provisions hereof, any prior liens held by the Beneficiary or any leases or subleases then existing and created by Trustor shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure sale shall so elect.  No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice thereof to such tenant or subtenant.

4.11                    Counterparts .  This Deed of Trust may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all

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of which shall constitute one and the same instrument.

IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written.

THIS IS TO CERTIFY that on the 3 rd  day of November    , 2017 before me personally appeared Carter Lee of O.COM LAND, LLC, a Utah limited liability company, who, as MANAGER, executed the foregoing DEED OF TRUST, ASSIGNMENT OF RENTS, ASSIGNMENT OF LEASES, SECURITY AGREEMENT AND FIXTURE FILING on behalf of O.COM LAND, LLC, in the capacity indicated, and who acknowledged to me that he/she executed the same for and on behalf of said limited liability company so to do; and acknowledged to me that he/she signed and executed the same freely and voluntarily; for the uses and purposes therein stated.

IN WITNESS WHEREOF, I hereunto set my hand and seal.

Seal

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Exhibit 10.4

Execution Original

GUARANTY OF OVERSTOCK.COM, INC.

( GUARANTY OF PAYMENT )

FOR VALUE RECEIVED, and for the purpose of enabling O.COM LAND, LLC, a Utah limited liability company, hereinafter called “Debtor” and/or “Borrower”, to obtain a loan (the repayment obligation of which is evidenced by the Promissory Note, as hereafter defined) from PCL L.L.C., a Utah limited liability company of 10011 South Centennial Parkway, Suite 275, Sandy City, Utah, hereinafter called “Lender”, the undersigned (also referred to hereafter as “Guarantor”) does hereby guarantee to the Lender, the prompt payment during the term of the Loan, at maturity of the Loan or at any time thereafter, of the forty million dollar ($40,000,000.00) loan (“Loan”) made by Lender to Debtor, evidenced by that certain Promissory Note made effective November 6, 2017, in the principal amount of Forty Million and 00/100 Dollars ($40,000,000.00) (“Promissory Note”) and such other loan documents as required by the Lender (“Loan Documents”).

In the event that said Debtor fails at any time or times to promptly pay any and all obligations pursuant to the Loan and/or Loan Documents, including the final payment of principal and interest due upon maturity of the Loan and the monthly interest-only payments, which are now due and/or which may hereafter accrue from said Debtor to said Lender, as the same become due, the undersigned Guarantor hereby promises to pay any and all such indebtedness as the same becomes due from said Debtor to said Lender, forthwith, upon demand, including attorney’s fees that may be incurred in enforcing the provisions of this Guaranty, including payment hereunder.

The undersigned Guarantor hereby waives presentment for payment, protest and notice of dishonor and of non-performance of any note or notes made or hereafter made by the Debtor to the Lender or of any other items of indebtedness held or hereafter held by Lender against Debtor.

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This is a specific guaranty and by this instrument the undersigned Guarantor guarantees the prompt payment of any and all of indebtedness evidenced by the Loan, the Loan Documents and/or the Promissory Note.

Guarantor executes this Guaranty for the purpose of inducing Lender to extend the Loan to Debtor, and Guarantor hereby agrees that the Loan to the Debtor was agreed to and extended by Lender to Debtor or for its account in reliance upon this Guaranty.  Guarantor further acknowledges that it has an economic interest in the successful refinancing and payment of the Loan encumbering the Property securing the Loan.

Except as otherwise provided herein, Guarantor agrees that upon any default of Debtor, Lender may, at its option, proceed directly and at once, and without notice to Guarantor of the occurrence of such default by Debtor, against Guarantor to collect and recover the full sum of the guaranteed indebtedness.  The obligations of Guarantor under this agreement are independent of the obligations of Debtor, and a separate action or actions may be brought and prosecuted against Guarantor whether action is brought against Debtor or whether Debtor be joined in any such action or actions.  Guarantor agrees that the payment of any indebtedness or other act which shall toll any applicable statute of limitations shall similarly operate to toll such statute of limitations applicable to Guarantor’s liability under this Guaranty.  Guarantor agrees to assume the responsibility for being and keeping itself informed of the financial condition of Debtor and of all other circumstances bearing upon the risk of nonpayment of the indebtedness which diligent inquiry would reveal, and that Lender shall have no obligation to advise Guarantor of any information relating to the financial condition of Debtor, and absent a written request for information by Guarantor, no obligation to inform Guarantor regarding the status of the guaranteed indebtedness.

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Guarantor agrees that Lender may, from time to time, at Lender’s election, without notice to Guarantor, without Guarantor’s consent, and without affecting Guarantor’s liability under this agreement, (a) renew, extend, accelerate or otherwise change the time for payment of, or otherwise change the terms of the indebtedness or any part thereof of Debtor, including increasing or decreasing the rate of interest on such indebtedness; (b) take and hold security (i) pledged for the payment of this Guaranty, if any, or (ii) pledged for repayment of the indebtedness guaranteed, and exchange, surrender, compromise, release, enforce, waive, or deal with such security in any manner Lender deems necessary, whether or not this security was provided by Debtor or Guarantor; (c) apply such security and direct the order or manner of sale as Lender in its discretion may determine, and (d) release or substitute any one or more of the endorsers (if any) of Debtor.

Guarantor waives any right:  (a) to require any notice of action or non-action on the part of Debtor, Lender or Guarantor; (b) to require any notice of the creation, renewal, extension or accruals of any obligation or obligations of Debtor, present or future; (c) to require notice of default or nonpayment and notice of dishonor to or upon Guarantor, Debtor or any other party liable for any of the obligations of Debtor; (d) to make any defense arising by reason of any disability of Debtor or by reason of the cessation from any cause whatsoever of the liability of Debtor; (e) for subrogation until all indebtedness of Debtor be paid in full to Lender; (f) to participate in any security now or hereafter held by Lender, and (g) to claim any right to cause a marshalling of any or all Debtor’s assets or to cause Lender to proceed against any of the security before proceeding against Guarantor.

Guarantor agrees to pay a reasonable attorney’s fee and court costs if this Guaranty be placed with an attorney for collection or enforcement or if suit be instituted thereon.  Guarantor further agrees that this Guaranty shall be binding upon the undersigned, the legal representatives,

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successors and assigns of the undersigned and shall be governed by and construed in accordance with the laws of the State of Utah.

Guarantor agrees that all rights and remedies of Lender are cumulative and distinct and may be exercised concurrently, independently or successively.  The failure of Lender to promptly exercise any right hereunder shall not operate as a waiver of such right and the waiver of any default shall not constitute a waiver of any subsequent or other default.

This contract shall inure to the benefit of all transferees, assignees and/or endorsers of said Lender of any part, parts or all of the indebtedness herein guaranteed.

The Guarantor acknowledges, understands and agrees that this Guaranty is a guaranty of payment and not a guaranty of collection, and that in the event of a default by the Debtor, the Lender may pursue the Guarantor without first proceeding against the Debtor and/or any collateral securing the Loan .

IN WITNESS WHEREOF, the Guarantor has hereto subscribed his name effective the 3 rd  day of November 2017.

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Exhibit 10.5

Execution Original

ENVIRONMENTAL INDEMNITY AGREEMENT

(Unsecured)

THIS ENVIRONMENTAL INDEMNITY AGREEMENT (“Agreement”), made effective November 6, 2017, by and between O.COM LAND, LLC, a Utah limited liability company (hereafter referred to as the “Borrower” and/or the “Indemnitor”) of 799 West Coliseum Way, Midvale, Utah 84047, for the benefit of PCL L.L.C., a Utah limited liability company (hereafter referred to as the “Lender” and/or “Indemnitee”) of 10011 South Centennial Parkway, Suite 275, Sandy City, Utah 84070.  The term “Indemnitee” shall also include any successor or assignee of Lender, including, in the case of Lender, any participant in, or other holder of any interest in, the Loan (as hereinafter defined) or any other Person that may from time to time be included within the meaning of the term “Lender” or “Beneficiary” as defined in the Trust Deed, together with partners, shareholders, officers, directors, agents, representatives, attorneys, successors and assigns of any of the foregoing, and the term “Indemnitor” shall also include any successor or assignor of Indemnitor.

WHEREAS, contemporaneously herewith, Indemnitor as borrower and Lender as lender, have entered into a certain loan transaction (as amended, supplemented or otherwise modified from time to time, the “Loan”) which provides for a loan in the amount of FORTY MILLION AND NO/100 DOLLARS ($40,000,000.00) from Lender to Borrower.  Any term used but not defined herein shall have the meaning given to such term in the Loan Agreement, Deed of Trust and the Note as hereafter used and/or defined.

WHEREAS, in connection with the Loan, Borrower has executed a Deed of Trust, Assignment of Rents, Assignment of Leases, Security Agreement and Fixture Filing of even date herewith, in favor of Lender as beneficiary and Landmark Title Company, or its successor, as trustee (the “Trust Deed”) and covering the property described on Exhibit “A” attached hereto. The property and facilities affected by the Trust Deed are herein referred to collectively as the “Property”.

NOW, THEREFORE, in partial consideration of the reciprocal covenants and provisions of the Loan Documents the sufficiency whereof is hereby acknowledged and in order to induce Lender to make the Loan to Indemnitor, Indemnitor, intending to be legally bound, hereby agrees as follows:

1.                                      Definitions .   For purposes hereof, the following terms shall have the following meanings:

“Environmental Laws” means any and all federal, state and local Laws, including, without limitation, any and all requirements to register underground storage tanks, relating to: (i) emissions, discharges, spills, releases or threatened releases of pollutants, contaminants, Hazardous Materials (as hereinafter defined), or hazardous or toxic materials or wastes into ambient air, surface water, groundwater, watercourses, publicly or privately owned treatment works, drains,

sewer systems, wetlands, septic systems or onto land; (ii) the use, treatment, storage, disposal, handling, manufacturing, transportation, or shipment of Hazardous Materials (as defined below), materials containing Hazardous Materials or hazardous and/or toxic wastes, material, products or by-products (or of equipment or apparatus containing Hazardous Materials), or (iii) pollution or the protection of human health or the environment;

“Hazardous Materials” means (1) hazardous materials, hazardous wastes, and hazardous substances as those terms are defined under any Environmental Laws, including, but not limited to, the following: the Hazardous Materials Transportation Act, 49 U.S. C. § 1801 et seq ., and as further amended from time to time (“HMTA”), the Resource Conservation and Recovery Act, U.S. C. § 9601 et seq ., as amended from time to time (“RCRA”), the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C. § 9601 et seq ., and as further amended from time to time (“CERCLA”), the Clean Water Act, 33 U.S.C. § 1251  et seq ., as amended from time to time (“CWA”), the Clean Air Act, 42 U.S.C. § 7401 et seq ., as amended from time to time (“CAA”) and/or the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq ., as amended from time to time (“TSCA”); (2) petroleum and petroleum products including crude oil and any fractions thereof; (3) natural gas, synthetic gas, and any mixtures thereof; (4) asbestos and/or any material which contains any hydrated mineral silicate, including, but not limited to, chrysotile, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable; (5) PCBs, or PCB-containing materials, or fluids; (6) radon; (7) any other hazardous or radioactive substance, material, pollutant, contaminant, or waste; and (8) any substance with respect to which any federal, state or local Environmental Law or governmental agency requires environmental investigation, monitoring or remediation. Indemnitor hereby acknowledges and agrees that Indemnitor’s obligations hereunder with respect to Hazardous Materials and Environmental Laws are intended to extend to and cover all matters and conditions in, on, under, beneath, with respect to, affecting, related to, in connection with or involving the Property or any part thereof, without regard to whether Indemnitor has actually caused or participated in the event or circumstance giving rise to the matter in question, and without regard to whether the matter in question arose prior to or during the term of the Loan.

“Event of Default” means any default, failure, or refusal by Indemnitor to pay any amount and/or perform any obligation under this Agreement, which default, failure, or refusal remains uncured (i) in the case of matters that can be cured solely by the payment of money, ten (10) days after written notice of such failure to pay is given to Indemnitor by one or more of the Indemnitee, and (ii) in the case of any other matter, thirty (30) days after written notice of such failure to perform is given to Indemnitor by the Indemnitee; provided, that in the case of matters covered by clause (ii) above such cure period shall be extended so long as Indemnitor has commenced curative efforts within such thirty (30) day period, is diligently pursuing such efforts and is delivering periodic progress reports on such curative efforts to the Indemnitee, unless Lender determines reasonably that the interests of the Indemnitee will be materially adversely affected by such extension.

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2.                                 Basic Covenants .   Indemnitor shall cause the Property and every portion thereof at all times to be owned, operated, used, and maintained in compliance with all applicable Environmental Laws.  Further, Indemnitor shall not conduct, permit, or authorize, or permit to be conducted, permitted, or authorized, the manufacturing, emission, generation, transportation, treatment, storage, or disposal on the Property or any part thereof of any Hazardous Materials without the prior written consent of Lender, which Lender may withhold for any reason, or without cause, in its discretion. Notwithstanding the foregoing covenant, Indemnitor shall be entitled in, or as an incident to, the ordinary course of its, or its tenants’ business at the Property, to engage in or permit the presence, use, storage, sale or transportation of Hazardous Materials at, about, within or to or from the Property provided that any and all of such activities involving Hazardous Materials are conducted in compliance with all federal, state and local laws and regulations applicable to such activities. However, Indemnitor covenants and agrees to promptly remove from the Property, if and as required by law, any Hazardous Material discovered at, about, within or on the Property which is not in compliance with such laws and regulations, and to promptly comply with all federal, state and local laws and regulations governing such removal.

3.                                 Indemnity .  Indemnitor shall undertake to protect, indemnify, and save harmless  the Indemnitee from any and all liability, loss, cost or damage that Indemnitee may suffer as a result of claims, demands, liabilities, costs or judgments against any or all of them, including, without limitation, claims of contribution from any other person or entity that has or might have joint and several liability therefore, including, without limitation, a governmental authority, arising from (i) any violation of any Environmental Law relating to or affecting the property or any part thereof, (ii) the depositing, storing, disposing, transporting, emitting, burying, dumping, injecting, using, testing, spilling, leaking or other placing or releasing in or on the Property or any part thereof, or in or on any other property in the vicinity of the Property, to the extent such actions on or in other property in the vicinity have an adverse impact upon the Property itself or to the extent that any such actions on or in the Property have an adverse impact upon other property in the vicinity of the Property, of any Hazardous Materials (including, without limitation, the Permitted Materials), and/or (iii) reasonable costs incurred in connection with settlement or attempted settlement in lieu of litigation or other proceedings with respect to any such matters (subject to the limitations upon Indemnitee’ right to unilaterally settle claims as set out in paragraph 7 below), including, but not limited to:

(a)        Liability for costs or removal or remedial action, incurred by the United States Government or any state or local government, or response costs incurred by any other person, or damages from injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss, incurred pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S. C. § 9601 et seq ., as amended or any comparable federal, state, or local statute;

(b)       Liability for cost and expenses of site assessment, testing, laboratory fees, monitoring, abatement, correction or clean-up, fines, damages, response costs or penalties which arise from the provisions of any other Environmental Law, whether state, federal, local, or otherwise; and

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(c)        Liability for personal injury or property damage arising under any statutory or common-law theory, including damages assessed for the maintenance of the public or private nuisance, response costs or for the carrying on of an abnormally dangerous activity.

Notwithstanding the foregoing, no Indemnitee shall be entitled to indemnification hereunder to the extent of costs, liabilities, losses, or damages that are attributable (on a comparative basis) to the negligence or intentional misconduct of the Indemnitee in question; provided, however, that the negligence or intentional misconduct of any particular Indemnitee shall not be imputed to any other Indemnitee, and such Indemnitee as did not participate in the negligence or intentional misconduct in question shall remain fully entitled to indemnification hereunder without regard to such negligence or intentional misconduct of the Indemnitee that did so participate.

Nothing in this Agreement shall be deemed or construed as an admission by Indemnitor of liability or responsibility hereunder for any violation or alleged violations of Environmental Laws as between Indemnitor and any governmental agency or other third party, notwithstanding that, as between Indemnitor and the Indemnitee, Indemnitor has responsibility hereunder for such matter and for indemnifying the Indemnitee from the consequences thereof.

4.                                       Costs .   Indemnitor’s liability hereunder shall, without however limiting the indemnity provided in the preceding paragraph, extend to and include all reasonable costs, expenses and attorneys’ fees incurred or sustained by Indemnitee in making any investigation on account of any such claim, demand, loss, liability, cost, charge, suit, order, judgment or adjudication, in prosecuting or defending any action brought in connection therewith, in obtaining or seeking to obtain a release therefrom and in enforcing any of the agreements herein contained, including, without limitation, any such costs incurred in connection with any bankruptcy or other proceeding under Title 11, United States Code.

5.                                       Delivery of Information .   Indemnitor shall promptly provide Indemnitee with copies of all communications, permits or agreements with any governmental authority or agency  (federal, state or local) or any private entity relating in any way to the presence of, release of, placement on or in the Property or any portion thereof or the manufacturing, emission, generation, transportation, storage, treatment, or disposal at the Property, of any Hazardous Materials and/or the violation, alleged violation, or potential violation of any Environmental Law, except for Permitted Materials.

6.                                       Test Results.   If Indemnitee believes that a violation of Environmental Laws may have occurred, Indemnitee may, at Indemnitor’s expense, conduct tests of the Property or portions thereof; provided, however, that in connection therewith: (i) so long as no other Event of Default exists hereunder or under the Trust Deed, Indemnitee will first notify Indemnitor of its desire for tests to be conducted and request that Indemnitor perform such tests and provide the results thereof to Indemnitee, and so long as Indemnitor carries out such tests within ten (10) business days after Indemnitee’s request, Indemnitee will not perform such tests directly, and (ii) in the conduct of any test that Indemnitee may conduct directly Indemnitee will take reasonable steps to interfere as little as reasonably practicable with the conduct of Indemnitor’s businesses or the business of Indemnitor’s tenants within the Property.

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7.                                       Settlement .   In connection with the payment, settlement or compromise in good faith of any claim, demand, loss, liability, cost, charge, suit, order, judgment or adjudication, any Indemnitee, upon giving Indemnitor ten (10) business days’ prior notice, shall have the right in good faith to pay, settle or compromise, or litigate any such claim, demand, loss, liability, cost, charge, suit, order, judgment or adjudication under the belief that it is liable therefor, whether liable or not, without the consent or approval of Indemnitor; provided that Indemnitee shall not have the right to make any such payment, settlement, or compromise prior to the final resolution of the matter in question if Indemnitor shall protest such action in writing within the ten (10) business day period provided for above and immediately thereafter (but not more than ten (10) days thereafter) shall undertake and thereafter diligently prosecute to conclusion the defense of the matter in question on behalf of the Indemnitor in accordance with this Agreement. Any such amount expended by any Indemnitee shall be covered by this Agreement and shall be promptly paid to such Indemnitee by the Indemnitor on demand.

8.                                       Remediation.

(a) Indemnitee shall have the right, but not the obligation, subsequent to any Event of Default by Indemnitor hereunder, without in any manner limiting Indemnitee’s other rights and remedies under this Agreement, to enter onto the Property or to take such other actions as Indemnitee deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous Materials or a violation of Environmental Laws at the Property. Except in an emergency situation, so long as Indemnitor or Tenants of Indemnitor are in occupancy of the portion of the Property in question, Indemnitee shall give reasonable advance notice (either written or verbal) of its intention to enter the Property for any such purpose to afford Indemnitor the opportunity to have a representative accompany the agents or representatives of such Indemnitee in question should Indemnitor elect to do so. All reasonable costs and expenses paid or incurred by Indemnitee in the exercise of any such rights shall be payable by Indemnitor upon demand.

(b)       In the event that the Indemnitor is engaged in the remediation of any violation of Environmental Laws and/or presence of Hazardous Materials at the Property at the time of a Default or Event of Default occurs under the Loan and the Default or Event of Default in question does not arise out of such violation of Environmental Laws and/or presence of Hazardous Materials or the remediation actions or inactions of Indemnitor with respect thereto, then Indemnitee agrees that Indemnitor shall be permitted to control the completion of such remediation activities so long, as Indemnitor diligently proceeds therewith in a manner reasonably satisfactory to Indemnitee and Indemnitor keeps Indemnitee reasonably informed as to the progress of such remediation efforts. In any such event, however, this Agreement and the indemnification rights provided for herein shall remain in full force and effect.

9.                                       Independent Obligation. As to Lender, this Agreement is given solely to protect the Lender against environmental matters, and not as additional security for, or as a means of repayment of, the Loan. The obligations of the Indemnitor to Lender under this Agreement are independent of, and shall not be measured or affected by (i) any amounts at any time owing under the Loan, (ii) the sufficiency or insufficiency of any collateral (including, without limitation, the Property) given to the Lender to secure repayment of the Loan, (iii) the consideration given by

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the Lender or any other party in order to acquire the Property, or any portion thereof, in any foreclosure or other sale, (iv) the modification, expiration, release or termination of the Loan or any document or instrument relating thereto or (v) the discharge or repayment in full of the Loan (including, without limitation, by amounts paid or credit bid at a foreclosure sale or by discharge in connection with a deed in lieu of foreclosure). Notwithstanding anything herein to the contrary, Indemnitor shall not be liable to Indemnitee hereunder in respect of any Hazardous Materials that are first manufactured, emitted, generated, treated, stored, or disposed of on the Property, or any violation of Environmental Laws that first occurred on or with respect to the Property, after the Loan is repaid and/or the Property is transferred to Lender or its successor by foreclosure sale, deed in lieu of foreclosure, or similar transfer except to the extent such manufacture, emission, generation, treatment, storage, or disposal, or violation is actually caused by Indemnitor or those for whose actions Indemnitor is legally responsible.

10.                                Payment on Demand.   All obligations of the Indemnitor hereunder shall be payable on demand, and any amount due and payable hereunder to Indemnitee by Indemnitor which is not paid within ten (10) days after written demand therefor from Indemnitee with an explanation of the amounts demanded shall, to the extent permitted by applicable law, bear interest from the date of such demand at the “Default Rate” provided for in the Promissory Note evidencing the Loan.

11.                                Subrogation. If Indemnitor fails to perform its obligations under this Agreement, Indemnitee shall be subrogated to, and Indemnitor hereby assigns to Indemnitee, any indemnification or contribution rights Indemnitor may have from or against any present, future or former owners, tenants, or other occupants or users of the Property (or any portion thereof), including, without limitation, any subsidiary or affiliate of Indemnitor; provided, that such assignment shall not be deemed to exclude Indemnitor from the direct enforcement of such rights for its own benefit, either concurrently with or separate from the enforcement thereof by Indemnitee.

12.                                Inspections Shall Not Affect Liability.   Neither any environmental audits nor assessments, nor any inspections conducted by Indemnitee or its representatives, nor the consummation of the Loan in light of the matters disclosed as a result of these inspections, nor any other term or provision of this Agreement shall affect, modify, or constitute a waiver of, the rights and obligations of the parties to this Agreement under applicable Environmental Laws and the rights and remedies of Indemnitee under this Agreement shall be cumulative of and not modify the rights and remedies that Indemnitee would have in the absence of this Agreement. Indemnitor hereby expressly releases any contribution or other claims or rights it now has or may hereafter have against Indemnitee under applicable Environmental Laws, excepting only contribution rights or other claims against any particular Indemnitee with respect to matters for which such Indemnitee is not entitled to indemnification hereunder as a result of the negligence or intentional misconduct of the particular Indemnitee in question.

13.                                Survival.   Subject to the provisions of Section 9 of this Agreement, this Agreement shall survive the transfer of any or all of the Property by Indemnitor, including, but not limited to, any foreclosure sale or deed in lieu of foreclosure transaction, and the repayment in full of the Loan.

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14.                                WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND FOR THE PURPOSE OF REDUCING THE TIME AND EXPENSE OF LITIGATION, INDEMNITOR AND INDEMNITEE WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF THIS AGREEMENT.

15.                                Specific Enforcement.   Indemnitor acknowledges that it may be impossible to measure accurately the damages to Indemnitee resulting from a breach of Indemnitor’s covenants under this Agreement, that such a breach will cause irreparable injury to Indemnitee, and that Indemnitee may not have an adequate remedy at law in respect to such breach. Therefore, such covenants shall be specifically enforceable against Indemnitor. This clause shall not prejudice Indemnitee’s rights to assert any and all claims for damages incurred as a result of Indemnitor’s breach hereof or for equitable relief.

16.                                Notice.   All notices, demands, requests and other communications required hereunder shall be in writing and shall be deemed to have been properly given if (a) delivered in person, (b) delivered by nationally-recognized overnight delivery service, (c) delivered by electronic transmission, including facsimile transmission, provided that receipt thereof is acknowledged by the recipient in writing or by electronic transmission, including facsimile transmission, to the sender or (d) sent by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the party for whom it, is intended at is address hereinafter set forth:

Notice sent by any means shall be deemed given upon receipt.  Any party may designate a change of address by written notice to the others, at least ten (10) days before such change of address is to become effective.

17.                                Attorney’s Fees .   In the event either party files a suit in connection with this Agreement or any provisions contained in this Agreement, then the party which substantially prevails in such action shall be entitled to recover, in addition to all other remedies or damages, reasonable attorney’s fees and costs of court incurred in such suit.

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18.                                No Third Party Beneficiaries.   This Agreement is executed for the sole use and benefit of the Indemnitee, and no person or entity other than the Indemnitee is intended to be a beneficiary hereof or otherwise to have any right to enforce the provisions hereof.

19.                                No Waiver.   The failure of Indemnitee to insist upon strict compliance with any of the terms hereof shall not be considered to be a waiver of any of such terms nor shall it militate against the right of Indemnitee to insist upon strict compliance herewith at any time thereafter.

20.                                Severability.   If any provision of this Agreement shall be contrary to the laws of the jurisdiction in which the same shall be sought to be enforced, the illegality or unenforceability of any such provision shall not affect the other terms, covenants or conditions thereof, and the same shall be binding upon Indemnitor with the same force and effect as though such illegal or unenforceable provision were not contained herein.

21.                                Governing Law.   THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF UTAH, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.

22.                                Unsecured Indemnity. THE OBLIGATIONS AND DUTIES OF THE INDEMNITOR UNDER THIS AGREEMENT ARE NOT SECURED BY THE TRUST DEED OR BY ANY OTHER SECURITY AGREEMENT OR LIEN EXECUTED IN CONNECTION WITH THE LOAN, IT BEING THE EXPRESS INTENT OF THE PARTIES THAT THESE OBLIGATIONS AND DUTIES SHALL BE UNSECURED.

IN WITNESS WHEREOF, Indemnitor, intending to be legally bound hereby, has caused this Agreement to be duly executed as of the day and date first set forth hereinabove.

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Exhibit 10.6

Recording Requested by and

After Recording Return to :

Sally B. McMinimee, Esq.

Prince, Yeates & Geldzahler

15 West South Temple, #1700

Salt Lake City, Utah 84101

LEASE SUBORDINATION AGREEMENT

THIS LEASE SUBORDINATION AGREEMENT (“Agreement”), dated the 6 of November, 2017, executed by and among PCL L.L.C., of 10011 South Centennial Parkway, Suite 275, Sandy City, Utah 84070 (hereinafter called “Lender”); OVERSTOCK.COM, INC., a Delaware corporation of 799 West Coliseum Way, Midvale, Utah 84047 (hereinafter called “Tenant”), and O.COM LAND, LLC, a Utah limited liability company of 799 West Coliseum Way, Midvale, Utah 84047 (hereinafter called “Landlord”).

W I T N E S S E T H :

WHEREAS, Tenant has entered into a certain Lease with Landlord dated October 24, 2014 (hereinafter, the “Lease”), a copy of which Lease is attached hereto as Exhibit “A”, covering certain land (the “Land”) located at 799 West Coliseum Way, Midvale, Utah  84047, buildings containing office space of approximately 257,000 square feet (the “Buildings”), and a parking structure (the “Parking Structure”).  The Land, the Buildings and the Parking Structure are hereafter collectively referred to as the “Premises”, located on the real property described on Exhibit “B” attached hereto.

WHEREAS, Lender is making a loan (“Loan”) to Landlord to be secured by a Deed of Trust, Assignment of Rents, Assignment of Leases, Security Agreement and Fixture Filing of even date herewith (hereafter, “Trust Deed”) upon the Premises, including an assignment of Landlord’s interest in the Lease; and

WHEREAS, Lender requires a subordination of Tenant’s interest to its possible fee ownership of the Premises in the event of a default by the Landlord in its obligations to the Lender in the event that the Lender were to acquire title to the Premises.

NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) by each party in hand paid to the other, the receipt of which is hereby acknowledged, and in consideration of the mutual promises, covenants and agreements herein contained, the parties hereto, intending to be legally bound hereby, promise, covenant and agree as follows:

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1.                                       SUBORDINATION .

A.             Subordination of Lease . The Trust Deed and any and all extensions, renewals, modifications or replacements thereof shall be and at all times remain a lien or charge on the Premises prior to and superior to the Lease or any other leasehold interests of the Tenant.  Tenant unconditionally waives, relinquishes and subordinates any priority of the Lease and Tenant’s right and interest to the Premises thereunder to the lien or charge of the Trust Deed, and any and all extensions, renewals, modifications or replacements thereof.

The Lease, all renewals, modifications, consolidations, replacements and extensions of the Lease and all estates, options, liens and charges therein contained or created thereunder are and shall be subject and subordinate to the Loan in favor of Lender, to be secured by the Trust Deed in favor of the Lender, with the same force and effect as if the Trust Deed in favor of the Lender had been executed, delivered, and duly recorded with the Salt Lake County Recorder, prior to Tenant taking possession of the Premises and prior to the execution and delivery of the Lease by Tenant and the Landlord.  The recording information of the Trust Deed to which the Lease is being subordinated is Entry Number 12652771, recorded November 6, 2017 with the Salt Lake County Recorder.

B.             Reliance .  Tenant acknowledges that Lender, in extending or continuing to extend credit to Landlord, including the Loan secured by the Premises pursuant to the Trust Deed, is doing so in reliance on this Agreement.

2.                                       NO LIABILITY OF LENDER .  Lender shall not be liable to Tenant for any act or omission of any person or entity as a lessor under the Lease, nor for the return of any sums which Tenant may have paid to any other person or entity as a lessor under the Lease as security deposits, advances or otherwise.

3.                                       RENTAL PAYMENTS UPON DEFAULT .  Tenant Agrees and the Landlord directs that in the event of a default by Landlord in its loan obligation to Lender, upon written notice to the Tenant and Landlord by Express Courier at the addresses set forth above, Tenant shall, from and after one (1) day following the date the notice is sent by express courier to Landlord and Tenant, pay any and all rents required to be paid pursuant to the Lease directly to Lender at the address contained in the notice.  Tenant shall continue to make all rental payments to the Lender unless and until the Lender directs Tenant to resume making the rental payments due under the Lease to the Tenant.

4.                                       NO ADVANCE RENTAL PAYMENTS .  Tenant and Landlord agree that the Tenant shall not make any payment of rent to the Landlord in advance and that rental shall be paid to Landlord in the amount due each month on, or within five (5) days, of the due date of such rental payment.

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5.                                       NO MODIFICATION OF LEASE. Tenant and Landlord agree that Tenant and Landlord will not terminate, alter, modify or amend the terms of the Lease without Lender’s prior written consent.  Tenant and Landlord further agree that Tenant and Landlord will not assign, sublet or otherwise grant possession of any portion of the Premises to any other party without the prior written consent of the Lender.

6.                                       INSURANCE PROCEEDS; EMINENT DOMAIN PROCEEDING PROCEEDS .  Tenant and Landlord agree that the proceeds of any and all insurance described in the Lease, including business interruption insurance, will be not be disbursed to any party other than the Lender without the Lender’s prior written consent.  Tenant and Landlord further agree that any and all proceeds of any eminent domain proceeding will not be disbursed without Lender’s prior written consent.

7.                                       OPTION TO PURCHASE .  If the Lease contains an Option to Purchase in favor of the Tenant, the Landlord and Tenant agree that the Tenant’s Option to Purchase shall be subordinate and junior to Lender’s Trust Deed as described in Paragraph 1 and any Tenant’s Option to Purchase may be exercised if and only if the Option Purchase Price exceeds the amount of the Loan owed by the Landlord to Lender secured by the Premises and that upon exercise of the Option to Purchase the purchase proceeds will be deposited with a title company with instructions that the lien of the Lender must be fully repaid prior to any transfer of the Premises to the Tenant.

8.                                       TENANT SOLE OWNER OF LEASEHOLD INTEREST .  Tenant hereby warrants and represents, covenants and agrees with Lender that Tenant is now the sole owner of the leasehold estate created by the Lease and shall not hereafter assign the Lease except as permitted by the terms thereof, and that notwithstanding any such assignment or any sublease, Tenant shall remain primarily liable for the observance and performance of all of its agreements under the Lease.

9.                                       BINDING EFFECT OF AGREEMENT .  This Agreement shall be binding upon the parties hereto and their respective heirs, administrators, executors, successors and assigns.

10.                                ESTOPPEL .  Tenant acknowledges and represents that:

A.             Lease Effective .  The Lease has been duly executed and delivered by Tenant and, subject to the terms and conditions thereof, the Lease is in full force and effect, and the obligations of the Tenant thereunder are valid and binding.

B.             No Default .  As of the date hereof and to the best of Tenant’s knowledge, (i) there exists no breach of or default under the Lease, nor any condition, act or event which with the giving of notice or the passage of time, or both, would constitute such a breach or default, and (ii) there are no existing claims, defenses or offsets against the rental due or to become due under the terms of the Lease

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11. MISCELLANEOUS .

A.             Further Assurances .  At the request of any party hereto, each other party shall execute, acknowledge and deliver such other documents and/or instruments as may be reasonably required by the requesting party in order to carry out the purpose of this Agreement, provided that no such document or instrument shall modify the rights and obligations of the parties set forth herein.

B.             Successors, Assigns; Governing Law.   This Agreement shall be binding upon and inure to the benefit of successors, assigns and other transferees of the parties hereto, and shall be governed by and construed in accordance with the laws of the State of Utah.

C.             Conflicts .  In the event of any inconsistency between the terms of this Agreement and the Lease, the terms of this Agreement shall control.

D.             Counterparts .  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute and be construed as one and the same agreement.

[Signatures continue on the following page]

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