Exhibit 10.2


 


REVOLVING CREDIT NOTE


 


	
  $40,000,000.00

  	
   

  	
  Boston,
  Massachusetts

  
	
   

  	
   

  	
  December
  12, 2005

  



 


FOR VALUE RECEIVED, the
undersigned (the “Borrower”) promises to pay to the order of Wells Fargo Retail
Finance, LLC (with any subsequent holder, the “Lender”), One Boston Place, 19th
Floor, Boston, Massachusetts 02108, the maximum principal sum of Forty Million
and 00/100 Dollars ($40,000,000.00) or, if less, the aggregate unpaid principal
balance of loans and advances made by the Lender to or for the account of the
Borrower pursuant to the revolving credit established pursuant to the Loan and
Security Agreement dated of even date herewith (as such may be amended,
modified, supplemented or restated hereafter, the “Loan Agreement”) by and
between the Borrower and the Lender, with interest at the rate and payable in
the manner stated therein.


 


This “Revolving Credit Note” is
subject to all terms and provisions of the Loan Agreement.  The principal of, and interest on, this
Revolving Credit Note shall be payable as provided in the Loan Agreement and
shall be subject to acceleration as provided therein.  Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Loan Agreement.


 


The Lender’s books and records
concerning loans and advances pursuant to the Loan Agreement, the accrual of
interest thereon, and the repayment of such loans and advances, shall be prima
facie evidence of the indebtedness hereunder.


 


No delay or omission by the
Lender in exercising or enforcing any of the Lender’s powers, rights,
privileges, remedies, or discretions hereunder shall operate as a waiver
thereof on that occasion nor on any other occasion.  No waiver of any default hereunder shall
operate as a waiver of any other default hereunder, nor as a continuing waiver.


 


The Borrower, and each endorser
and guarantor of this Revolving Credit Note, waives presentment, demand,
notice, and protest, and also waives any delay on the part of the holder
hereof.  The Borrower assents to any extension
or other indulgence (including, without limitation, the release or substitution
of Collateral) permitted by the Lender with respect to this Revolving Credit
Note and/or any Collateral or any extension or other indulgence with respect to
any other liability or any Collateral given to secure any other liability of
the Borrower or any other Person obligated on account of this Revolving Credit
Note.


 


This Revolving Credit Note
shall be binding upon the Borrower, and each endorser and guarantor hereof, and
upon their respective successors and assigns, and shall inure to the benefit of
the Lender and its successors, endorsees, and assigns.


 


The liabilities of the
Borrower, and of any endorser or guarantor of this Revolving Credit Note, are
joint and several, provided, however,
the release by the Lender of any one or more such Persons shall not release any
other Person obligated on account of this Revolving Credit Note.  Each reference in this Revolving Credit Note
to the Borrower, any endorser, and any guarantor, is to such Person
individually and also to all such Persons jointly.  No Person obligated on account of this
Revolving Credit Note may seek contribution from any other Person also
obligated unless and until all liabilities, obligations and indebtedness to the
Lender of the Person from whom contribution is sought have been satisfied in
full.


 


THIS REVOLVING CREDIT NOTE
SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS) AND SHALL TAKE
EFFECT AS A SEALED INSTRUMENT.


 


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The Borrower makes the
following waiver knowingly, voluntarily, and intentionally, and understands
that the Lender, in the establishment and maintenance of its relationship with
the Borrower contemplated by this Revolving Credit Note, is relying
thereon.  THE BORROWER, AND EACH
GUARANTOR, ENDORSER AND SURETY, WAIVES
THE RIGHT TO A JURY IN ANY TRIAL OF ANY CASE OR CONTROVERSY IN WHICH THE LENDER
IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR
AGAINST THE LENDER OR IN WHICH THE LENDER IS JOINED AS A PARTY LITIGANT), WHICH
CASE OR CONTROVERSY ARISES OUT OF OR IS IN RESPECT OF, ANY RELATIONSHIP AMONG
OR BETWEEN THE BORROWER OR ANY OTHER PERSON AND LENDER LIKEWISE WAIVES THE
RIGHT TO A JURY IN ANY TRIAL OF ANY SUCH CASE OR CONTROVERSY.


 


[SIGNATURE PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the
Borrower has caused this Revolving Credit Note to be duly executed as of the
date set forth above as a sealed instrument.


 


	
   

  	
  BORROWER

  
	
   

  	
   

  
	
   

  	
  OVERSTOCK.COM, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David K. Chidester

  	
   

  
	
   

  	
  Print Name:

  	
  David K. Chidester

  	
   

  
	
   

  	
  Title:

  	
  Senior VP – Finance