exhibit102-sixthamendmen






                                                                     Execution Version                                     SIXTH AMENDMENT                                             TO                             LOAN AND SECURITY AGREEMENT                                                              This Sixth Amendment to Loan and Security Agreement (this “Amendment”), dated as        of August 6, 2020, is executed and delivered by CASPER SLEEP INC., CASPER SCIENCE        LLC, and CASPER SLEEP RETAIL LLC (individually and collectively, jointly and severally,        “Borrower”) and  PACIFIC  WESTERN  BANK,  a  California  state  chartered  bank  (“Bank”).         Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed        to those terms in the Loan Agreement (as defined below).                                          RECITALS               a.    Borrower and Bank are parties to that certain Loan and Security Agreement dated        as of April 27, 2016, as amended by that certain First Amendment to Loan and Security Agreement        dated  as  of  November 20,  2017,  as  amended  by  that  certain  Second  Amendment  to  Loan  and        Security Agreement dated as of August 14, 2018, as amended by that certain Third Amendment to        Loan and Security Agreement dated as of December 12, 2018, as amended by that certain Fourth        Amendment  and  Joinder  to  Loan  and  Security  Agreement dated  as  of March  1,  2019,  and as        amended by that certain Fifth Amendment to Loan and Security Agreement dated as of September        1, 2019 (as amended, the “Original Loan Agreement”).               b.    From and after the date hereof (the “Effective Date”), Borrower and Bank desire to        supplement the terms and provisions of the Original Loan Agreement as provided herein, and the        Original  Loan  Agreement,  as  amended by  this  Amendment,  and  as  may  be  hereafter  further        supplemented, amended, modified or restated from time to time, shall be referred to collectively        as the “Loan Agreement.”               NOW, THEREFORE, in consideration of the promises herein contained, and for other        good and valuable consideration (the receipt, sufficiency and adequacy of which are hereby        acknowledged), the parties hereto (intending to be legally bound) hereby agree as follows:               1.    Incorporation.  The foregoing preamble and recitals are incorporated herein by this        reference.               2.    Amendments.  The Loan Agreement is hereby amended, as follows:                     (a)   Sections 6.7(b) of the Loan Agreement is hereby amended and restated in  its entirety, as follows:                                (b)   Minimum    Cumulative   Adjusted  EBITDA.                     Measured monthly and calculated on a cumulative basis beginning January                    1, 2020, Borrower shall achieve Adjusted EBITDA of at least the amounts                    shown  in  the  table  immediately  below  for  the  corresponding  reporting                    periods.                          Reporting Period Ending   Minimum Cumulative                                                   Adjusted EBITDA          # Exhibit 10.2 - Sixth Amendment.Docx 





 






                                                                                                             July 31, 2020                ($54,000,000)                        August 31, 2020              ($57,000,000)                        September 30, 2020           ($58,000,000)                        October 31, 2020             ($62,000,000)                                        To the extent the Formula Revolving Line is renewed, (i) measured monthly                    and calculated on a cumulative basis beginning January 1, 2020, Borrower                    shall achieve Adjusted EBITDA of at least the amounts shown in the table                    immediately  below  for  the  corresponding  reporting periods,  and  (ii)  for                    subsequent reporting periods, Bank and Borrower hereby agree that on or                    before February 15 of each year during the term of this Agreement, Borrower                    shall provide Bank with a budget for such year, which shall be approved by                    Borrower’s  board  of  directors  (or  equivalent  governing body),  and  Bank                    shall  use  that  budget  to  establish  the  minimum  cumulative  Adjusted                    EBITDA  amounts  for  such  year,  with  such  amounts  being  incorporated                    herein by an amendment, which Borrower hereby agrees to execute.                            Reporting Period Ending   Minimum Cumulative                                                   Adjusted EBITDA                        November 30, 2020            ($64,000,000)                        December 31, 2020            ($61,000,000)                                        (b)   Section 7.8 of the Loan Agreement is hereby amended and restated in its  entirety, as follows:                           7.8   Capitalized Expenditures.  Make Capitalized Expenditures                    in excess of $23,000,000 in the aggregate in Borrower’s 2020 fiscal year.                     For subsequent reporting periods, to the extent the Formula Revolving Line                    is renewed, Bank shall use the budget delivered pursuant to Section 6.2 to                    establish  the  Capitalized  Expenditure  limit  for  such  year  after  reasonable                    consultation with Borrower, with such amounts being incorporated herein by                    an amendment, which Borrower hereby agrees to execute.                       (c)   The  following  terms  set  forth  in Exhibit  A to  the Loan  Agreement are        hereby amended and restated in their entirety as follows:                     “Formula Revolving Maturity Date” means December 1, 2020.                     (d)   Exhibit  A  to  the Loan  Agreement is  hereby  amended  by  inserting  the        following defined terms in the appropriate alphabetical order:                     “Adjusted  EBITDA”  means  with  respect  to  any  fiscal  period  an  amount                    equal  to  earnings  before  the  sum  of  (a)  tax, plus (b)  depreciation  and                    amortization, plus (c) interest, plus (d) any non-Cash stock compensation                    expenses, plus (e) restructuring  costs attributable  to retail  operations,                    severance,  contract  terminations,  and  other  exit  activities, plus (f) costs                                               2        Casper Sleep – 6th Amendment to LSA 





 






                                                                                             attributable  to legal  settlements, plus (g) expenses  attributable  to initial              public offerings.          3.    Representations  and  Warranties.   Borrower hereby  represents and  warrants to  Bank, which representations and warranties shall survive the execution and delivery hereof, that:  (a) this Amendment is the legally valid and binding obligation of Borrower, enforceable against  Borrower in accordance with its terms, except as the enforceability thereof may be limited by  bankruptcy, insolvency or other similar laws of general application relating to or affecting the  enforcement  of  creditors’ rights  or  by  general  principles  of  equity and  (b)  each of  the  representations  and  warranties  contained  in  the  Loan  Agreement,  as  well  as  all  other  representations and warranties contained in the other Loan Documents, are true and correct in all  material respects on and as of the date of the Effective Date as though made at and as of each such  date (provided, however, that such representations and warranties expressly referring to another  date shall be true and correct in all material respects as of such date, and, provided, further, that  any representation or warranty that contains a materiality qualification therein shall be true and  correct in all respects).           4.    Successors and Assigns.  This Amendment shall be binding upon Borrower’s and  Bank’s  successors  and  assigns  and  shall  inure  to  the  benefit  of  Borrower’s and  Bank’s  successors and assigns.  No other person or entity shall be a direct or indirect legal beneficiary  of, or have any direct or indirect cause of action or claim in connection with, this Amendment.   Borrower  may not assign  or  transfer  any  of  its  rights  or  obligations  under  this  Amendment  without the prior written consent of Bank.         5.    Severability; Construction.  Wherever possible, each provision of this Amendment  shall be interpreted in such a manner so as to be effective and valid under applicable law, but, if  any provision of this Amendment shall be prohibited by or invalid under applicable law, such  provision shall be ineffective to the extent of such provision or invalidity, without invalidating  the remainder of such provision or the remaining provisions of this Amendment.  All obligations  of Borrower and rights of Bank expressed herein shall be in addition to and not in limitation of  those provided by applicable law.         6.    Counterparts;  Facsimile  and  Other  Electronic  Transmission.   This  Amendment  may be executed in any number of counterparts and by the different parties hereto on separate  counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts  shall together constitute but one and the same Amendment. Receipt of an executed signature page  to this Amendment by facsimile or other electronic transmission shall constitute for all purposes  effective delivery thereof.  Electronic records of this executed Amendment maintained by Bank  shall be deemed to be originals.         7.    GOVERNING  LAW.   THIS  AMENDMENT  SHALL  BE  A  CONTRACT  MADE UNDER AND BE CONSTRUED, ENFORCED AND GOVERNED BY THE LAWS  OF THE STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS MADE AND  TO BE PERFORMED ENTIRELY WITHIN  SUCH STATE, WITHOUT REGARD TO  CONFLICT OF LAW PRINCIPLES.                                          3  Casper Sleep – 6th Amendment to LSA 





 






                                                                                       8.    WAIVER  OF  JURY  TRIAL.   BANK   AND   BORROWER  WAIVE  ANY  RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON  OR  ARISING  OUT  OF  THIS  AMENDMENT  OR  ANY  TRANSACTION  CONTEMPLATED HEREIN, INCLUDING CLAIMS BASED ON CONTRACT, TORT,  BREACH OF DUTY AND ALL OTHER COMMON LAW OR STATUTORY BASES. ALL  DISPUTES,  CONTROVERSIES,  CLAIMS,  ACTIONS  AND SIMILAR PROCEEDINGS  ARISING  WITH  RESPECT  TO  BORROWER’S  ACCOUNT(S)  OR  ANY  RELATED  AGREEMENT OR TRANSACTION SHALL BE BROUGHT IN THE GENERAL COURT  OF  JUSTICE  OF  NORTH   CAROLINA  SITTING  IN  DURHAM  COUNTY,  NORTH  CAROLINA  OR  THE  UNITED  STATES  DISTRICT  COURT  FOR  THE  MIDDLE  DISTRICT  OF  NORTH  CAROLINA,  EXCEPT  AS  PROVIDED  BELOW  WITH  RESPECT  TO  ARBITRATION  OF  SUCH  MATTERS.   IF  THE  JURY  WAIVER  SET  FORTH  IN  THIS  SECTION  IS  NOT  ENFORCEABLE,  THEN  ANY  DISPUTE,  CONTROVERSY  OR  CLAIM  ARISING  OUT  OF  OR  RELATING  TO  THIS  AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN WILL  BE  FINALLY  SETTLED  BY  BINDING  ARBITRATION  IN  DURHAM  COUNTY,  NORTH     CAROLINA     IN   ACCORDANCE       WITH     THE    THEN-CURRENT  COMMERCIAL  ARBITRATION  RULES  OF  THE  AMERICAN  ARBITRATION  ASSOCIATION BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH SAID  RULES.  THE  ARBITRATOR  SHALL  APPLY  NORTH  CAROLINA  LAW  TO  THE  RESOLUTION  OF  ANY  DISPUTE,  WITHOUT  REFERENCE  TO  RULES  OF  CONFLICTS OF LAW OR RULES OF STATUTORY ARBITRATION. JUDGMENT ON  THE  AWARD  RENDERED  BY  THE  ARBITRATOR  MAY  BE  ENTERED  IN  ANY  COURT  HAVING  JURISDICTION  THEREOF.   NOTWITHSTANDING  THE  FOREGOING,  THE  PARTIES  MAY  APPLY  TO  ANY  COURT  OF  COMPETENT  JURISDICTION  FOR  PRELIMINARY  OR  INTERIM  EQUITABLE  RELIEF  OR  TO  COMPEL  ARBITRATION  IN  ACCORDANCE  WITH  THIS  PARAGRAPH.   THE  EXPENSES  OF  THE  ARBITRATION,  INCLUDING  THE  ARBITRATOR’S  FEES,  REASONABLE ATTORNEYS’ FEES AND EXPERT WITNESS FEES, INCURRED BY  THE PARTIES TO THE ARBITRATION MAY BE AWARDED TO THE PREVAILING  PARTY, IN THE DISCRETION OF THE ARBITRATOR, OR MAY BE APPORTIONED  BETWEEN  THE  PARTIES  IN  ANY  MANNER  DEEMED  APPROPRIATE  BY  THE  ARBITRATOR.   UNLESS  AND    UNTIL  THE  ARBITRATOR  DECIDES  THAT  ONE  PARTY IS TO PAY FOR ALL (OR A SHARE) OF SUCH EXPENSES, ALL PARTIES  SHALL SHARE EQUALLY IN THE PAYMENT OF THE ARBITRATOR’S FEES AS  AND WHEN BILLED BY THE ARBITRATOR.         9.    Conditions  to  Effectiveness.   As  a  condition  to  the effectiveness  of  this  Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:                     (a)   this Amendment, duly executed by each Borrower;                     (b)   an officer’s certificate of each Borrower with respect to incumbency  and resolutions authorizing the execution and delivery of this Amendment;                     (c)   payment  of  all Bank  Expenses,  including Bank’s  reasonable  expenses for the documentation of this Amendment and any related documents, and any UCC,                                         4  Casper Sleep – 6th Amendment to LSA 





 






                                                                                 good standing or intellectual property search or filing fees, which may be debited from any of  Borrower’s account(s); and                     (d)   such other documents and completion of such other matters, as Bank  may reasonably deem necessary or appropriate.                               [Signature Page Follows]                                          5  Casper Sleep – 6th Amendment to LSA 





 






                                                                                                  IN  WITNESS  WHEREOF,  the  undersigned  have  caused  this  Amendment  to  be  duly  executed  and  delivered as of the date first above written.                                        BORROWER:                                                                            CASPER SLEEP INC.                                                                                                                  By:   /s/ Stuart Brown                                                          Name: Stuart Brown                                                              Title: Interim CFO                                                                                                                                          CASPER SCIENCE LLC                                                                                                                  By:   /s/ Philip Krim                                                           Name: Philip Krim                                                               Title: President                                                                                                        CASPER SLEEP RETAIL LLC                                                                                                                  By:   /s/ Philip Krim                                                           Name: Philip Krim                                                               Title: President                                                                                                                                            BANK:                                                                            PACIFIC WESTERN BANK                                                                                                                  By:   Samantha Mertzel                                                          Name: /s/ Samantha Mertzel                                                      Title: VP                                       Casper Sleep Inc. – 6th Amendment to LSA