Exhibit 10.2


 


Consent and Waiver


 


This
Consent and Waiver, dated as of September 17, 2010, is entered into by
U.S. Bank National Association (“U.S. Bank”), U.S. Bancorp Equipment Finance, Inc.
— Technology Finance Group (“USB Equipment Finance”), and Overstock.com, Inc.,
a Delaware corporation (“Overstock”).


 


WHEREAS,
U.S. Bank and Overstock are parties to a Financing Agreement dated as of December 22,
2009 (the “Financing Agreement”), as well as the “Loan Documents” as described
in the Financing Agreement (the Financing Agreement and all of such Loan
Documents being herein collectively called the “U.S. Bank Agreements”); and


 


WHEREAS,
USB Equipment Finance and Borrower propose to enter into a Master Lease
Agreement as well as a Financial Covenants Rider, a Schedule and other
agreements, instruments or documents described in or contemplated by the Master
Lease Agreement (such Master Lease Agreement, Financial Covenants Rider,
Schedule and all such other agreements, instruments and documents being herein
collectively called the “USB Equipment Finance Agreements”); and


 


WHEREAS,
USB Equipment Finance and U.S. Bank are affiliates; and


 


WHEREAS,
capitalized terms used but not defined herein have the meanings ascribed to
them in the U.S. Bank Agreements;


 


NOW,
THEREFORE, the parties hereby agree as follows:


 


1.             Pursuant to Section 15.17
of the Financing Agreement, U.S. Bank hereby consents to Overstock’s execution,
delivery and performance of its obligations under the USB Equipment Finance
Agreements, and hereby waives each provision of each of the U.S. Bank
Agreements (including, without limitation, Section 10.24 of the Financing
Agreement) to the extent that any such provision might otherwise (a) prohibit
or restrict Overstock from entering into or performing its obligations under
any of the U.S. Bank Agreements, or (b) result in any breach of or Default
or Event of Default under any provision of any of the U. S. Bank Agreements, or
(c) require Overstock to make any payment to U.S. Bank or (d) require
Overstock to take any other action or refrain from taking any other action
under any provision of any of the U.S. Bank Agreements.


 


2.             Overstock has advised USB
Equipment Finance and U.S. Bank that Overstock intends to use some or all of
the proceeds of the financing contemplated by the USB Equipment Finance
Agreements to attempt to repurchase, redeem, defease or otherwise acquire or
reaquire for value a portion of its outstanding convertible senior notes due
2011, and USB Equipment Finance and U.S. Bank each hereby consent to Overstock’s
intended use of some or all of the proceeds of the financing contemplated by
the USB Equipment Finance Agreements.


 


IN
WITNESS WHEREOF, the parties hereto have caused this Consent and Waiver to be
executed and delivered by their respective duly authorized officers as of the
date first written above.


 


	
   

  	
  OVERSTOCK.COM, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen J. Chesnut

  
	
   

  	
   

  	
  Stephen
  J. Chesnut

  
	
   

  	
   

  	
  Senior
  Vice President, Finance and Risk Management

  



 

















 


	
   

  	
  U.
  S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald Giblin

  
	
   

  	
  Name:

  	
  Ronald
  Giblin

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.
  S. BANCORP EQUIPMENT FINANCE, INC. — TECHNOLOGY FINANCE GROUP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kathie Russell

  
	
   

  	
  Name:

  	
  Kathie
  Russell

  
	
   

  	
  Title:

  	
  Vice
  President