Overstock.com 2004 Annual Report Download - page 102

accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than
five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with registered public offerings.
(f) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently
with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such
accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are an independent registered public accounting firm
within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of
the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished to the Initial Purchasers on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of
the Company by its chief executive officer or its chief financial officer, in form and substance satisfactory to the Initial Purchasers, to the effect that:
The representations, warranties and agreements of the Company in Section 1 are true and correct as of such Delivery Date; and the
Company has complied with all its agreements contained herein;
Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the
Offering Memorandum (A) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the
Offering Memorandum (exclusive of any amendment or supplement thereto), and (B) since such date there has not been any material
change in the capital stock or long-term debt of the Company (other than the issuance of shares of the Common Stock as contemplated by
the Offering Memorandum) or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto); and
Such officer has carefully examined the Offering Memorandum and, in such officer's opinion (A) the Offering Memorandum, as of its date,
did not include any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the date of the
Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering
Memorandum.
(h) The Indenture shall have been duly executed and delivered by the Company and the Trustee and the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
(i) The Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement (in form and substance satisfactory to
the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect.
(j) The NASD shall have accepted the Notes for trading on PORTAL.
(k) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the
Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, except as set forth or contemplated in the Offering Memorandum (exclusive of any
amendment or supplement thereto) and (ii) since such date there shall not have been any material change in the capital stock or long-term debt of the
Company (other than the issuance of shares of the Common Stock as contemplated by the Offering Memorandum) or any of its subsidiaries, or any change, or
any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or
supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and adverse as
to make it impracticable or inadvisable to proceed with the sale or the delivery of the Notes being delivered on such Delivery Date on the terms and in the
manner contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
trading in securities generally on the New York Stock Exchange, Inc. ("NYSE"), the American Stock Exchange, the Nasdaq National
Market or the over-the-counter market, or trading in any securities of the Company on any exchange (including the Nasdaq
National Market) shall have been suspended or the settlement of such trading generally shall have been materially disrupted, or minimum
prices shall have been established on any such exchange or market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction;
a banking moratorium shall have been declared by United States federal or New York State authorities;
the United States shall have become engaged in hostilities, other than in Iraq and Afghanistan, there shall have been an escalation in
hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States; or
there shall have occurred such a material adverse change in general economic, political or financial conditions, including without limitation
as a result of terrorist activities after the date hereof, or the effect of international conditions on the financial markets in the United States
shall be such as to make it, in the sole judgment of the Initial Purchasers, impracticable or inadvisable to proceed with the offering or
delivery of the Notes being delivered on such Delivery Date on the terms and in the manner contemplated in the Offering Memorandum
(exclusive of any amendment or supplement thereto).
(i)
(ii)
(iii)
(i)
(ii)
(iii)
(iv)