Exhibit 10.9

 

[Execution]

 

TRADEMARK SECURITY AGREEMENT

 

This TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is made this 29th day of June, 2015, by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), in its capacity as Administrative Agent for the Secured Parties (in such capacity, together with its successors and assigns in such capacity, “Agent”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Credit Agreement dated as of June 29, 2015 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”) by and among Boot Barn, Inc., a Delaware corporation (“Boot Barn”, and, together with the other entities party thereto as borrowers and any person that may from time to time become a party thereto as a borrower, each individually a “Borrower” and collectively, “Borrowers”), certain affiliates of Borrowers, the lenders party thereto as “Lenders” (such Lenders, together with their respective successors and assigns in such capacity, each, individually, a “Lender” and, collectively, the “Lenders”), and Agent, the Lenders have agreed to make certain financial accommodations available to Borrowers from time to time pursuant to the terms and conditions thereof; and

 

WHEREAS, the Lenders are willing to make the financial accommodations to Borrowers as provided for in the Credit Agreement and the other Loan Documents, but only upon the condition, among others, that the Grantors shall have executed and delivered to Agent, for the benefit of the Secured Parties, that certain Collateral Agreement, dated as of June 29, 2015 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”); and

 

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Secured Parties, this Trademark Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

 

1.                                      DEFINED TERMS.  All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Credit Agreement, and this Trademark Security Agreement shall be subject to the rules of construction set forth in Section 1.3 of the Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis.

 

1.                                      GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL.  Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each Secured Party, to secure the Secured Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “Security Interest”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “Trademark Collateral”):

 

(a)                                 all of its Trademarks and Trademark Licenses to which it is a party including those referred to on Schedule I;

 











 

(b)                                 all goodwill of the business connected with the use of, and symbolized by, each Trademark and each Trademark License; and

 

(c)                                  all products and proceeds (as that term is defined in the Code) of the foregoing, including any claim by such Grantor against third parties for past, present or future (i)infringement or dilution of any Trademark or any Trademarks exclusively licensed under any Trademark License, including right to receive any damages, (ii)injury to the goodwill associated with any Trademark, or (iii)right to receive license fees, royalties, and other compensation under any Trademark License.

 

2.                                      SECURITY FOR SECURED OBLIGATIONS.  This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the other Secured Parties or any of them, whether or not they are unenforceable or not allowable due to the existence of any proceeding under any Debtor Relief Law involving any Grantor.

 

3.                                      SECURITY AGREEMENT.  The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Secured Parties, pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  To the extent there is any inconsistency between this Trademark Security Agreement and the Security Agreement, the Security Agreement shall control.

 

4.                                      AUTHORIZATION TO SUPPLEMENT.  If any Grantor shall obtain rights to any new trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new material trademarks or renewal or extension of any trademark registration.  Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify this Trademark Security Agreement by amending Schedule I to include any such new trademark rights of each Grantor.  Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

 

5.                                      COUNTERPARTS.  This Trademark Security Agreement is a Loan Document.  This Trademark Security Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Trademark Security Agreement.  Delivery of an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Trademark Security Agreement.  Any party delivering an executed counterpart of this Trademark Security Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Trademark Security Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Trademark Security Agreement.

 

6.                                      CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE PROVISION.  THIS TRADEMARK SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE SET FORTH IN SECTION 7.5 OF THE SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

 











 

IN WITNESS WHEREOF, the parties hereto have caused this Trademark Security Agreement to be executed and delivered as of the day and year first above written.

 

	
GRANTORS:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
SHEPLERS, INC.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Greg Hackman
    
	
 
    	
 
    	
Name: 
    	
Greg Hackman
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer and Secretary
    
	
 
    	
 
    	
 
    	
 
    
	
AGENT:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
ACCEPTED AND ACKNOWLEDGED BY:
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Irene Rosen Marks
    
	
 
    	
 
    	
Name: 
    	
Irene Rosen Marks
    
	
 
    	
 
    	
Title: 
    	
Managing Director
    


 

[Signature Page to Trademark Security Agreement]

 











 

SCHEDULE I
  to
  TRADEMARK SECURITY AGREEMENT

 

Trademark Registrations/Applications

 

	
Trademark
    	
 
    	
Database
    	
 
    	
Application
   Number
    	
 
    	
Registration
   Number
    	
 
    	
Owner
    
	
RED RANCH


    	
 
    	
U.S. Federal
    	
 
    	
85726040
    	
 
    	
4552405
    	
 
    	
SHEPLERS, INC.
    
	
GIBSON TRADING COMPANY ESTABLISHED 1899


    	
 
    	
U.S. Federal
    	
 
    	
85724728
    	
 
    	
 
    	
 
    	
SHEPLERS, INC.
    
	
RED RANCH
    	
 
    	
U.S. Federal
    	
 
    	
85434444
    	
 
    	
4258838
    	
 
    	
SHEPLERS, INC.
    
	
GIBSON TRADING COMPANY
    	
 
    	
U.S. Federal
    	
 
    	
85399269
    	
 
    	
4429241
    	
 
    	
SHEPLERS, INC.
    
	
WESTERN WEAR FOR THE WAY YOU LIVE
    	
 
    	
U.S. Federal
    	
 
    	
85396637
    	
 
    	
4118616
    	
 
    	
SHEPLERS, INC.
    
	
Design Only 


    	
 
    	
U.S. Federal
    	
 
    	
85315981
    	
 
    	
4129801
    	
 
    	
SHEPLERS, INC.
    


 











 

	
Trademark
    	
 
    	
Database
    	
 
    	
Application
   Number
    	
 
    	
Registration
   Number
    	
 
    	
Owner
    
	
GIBSON TRADING COMPANY
    	
 
    	
U.S. Federal
    	
 
    	
85261879
    	
 
    	
4168869
    	
 
    	
SHEPLERS, INC.
    
	
YOUR COUNTRY, YOUR WAY
    	
 
    	
U.S. Federal
    	
 
    	
77483596
    	
 
    	
3781832
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
U.S. Federal
    	
 
    	
78822126
    	
 
    	
3193462
    	
 
    	
SHEPLERS, INC.
    
	
THE WORLD’S LARGEST WESTERN STORES
    	
 
    	
U.S. Federal
    	
 
    	
75291616
    	
 
    	
2167479
    	
 
    	
SHEPLERS, INC.
    
	
WORLD’S LARGEST WESTERN STORES
    	
 
    	
U.S. Federal
    	
 
    	
75140060
    	
 
    	
2081419
    	
 
    	
SHEPLERS, INC.
    
	
BOOTS ‘N JEANS
    	
 
    	
U.S. Federal
    	
 
    	
75078088
    	
 
    	
2342054
    	
 
    	
SHEPLERS, INC.
    
	
WORLD’S LARGEST WESTERN STORES AND CATALOG
    	
 
    	
U.S. Federal
    	
 
    	
74520534
    	
 
    	
2033263
    	
 
    	
SHEPLERS, INC.
    
	
Design Only 


    	
 
    	
U.S. Federal
    	
 
    	
73392546
    	
 
    	
1254863
    	
 
    	
SHEPLERS, INC.
    
	
OL’ SHEP
    	
 
    	
U.S. Federal
    	
 
    	
73388925
    	
 
    	
1255648
    	
 
    	
SHEPLERS, INC.
    


 











 

	
Trademark
    	
 
    	
Database
    	
 
    	
Application
   Number
    	
 
    	
Registration
   Number
    	
 
    	
Owner
    
	
SHEPLERS
    	
 
    	
U.S. Federal
    	
 
    	
73125194
    	
 
    	
1141784
    	
 
    	
SHEPLERS, INC.
    
	
S

 
    	
 
    	
U.S. Federal
    	
 
    	
73125222
    	
 
    	
1137758
    	
 
    	
SHEPLERS, INC.
    
	
S


    	
 
    	
U.S. Federal
    	
 
    	
73125223
    	
 
    	
1137889
    	
 
    	
SHEPLERS, INC.
    


 












 

	
Trademark
    	
 
    	
Database
    	
 
    	
Application
   Number
    	
 
    	
Registration
   Number
    	
 
    	
Owner
    
	
S SHEPLERS INC.

 
    	
 
    	
U.S. Federal
    	
 
    	
73041013
    	
 
    	
1017594
    	
 
    	
SHEPLERS, INC.
    
	
S

 
    	
 
    	
U.S. Federal
    	
 
    	
73040683
    	
 
    	
1057698
    	
 
    	
SHEPLERS, INC.
    


 











 

	
Trademark
    	
 
    	
Database
    	
 
    	
Application
   Number
    	
 
    	
Registration
   Number
    	
 
    	
Owner
    
	
S


    	
 
    	
U.S. Federal
    	
 
    	
73040684
    	
 
    	
1045614
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
U.S. Federal
    	
 
    	
73040363
    	
 
    	
1308095
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
U.S. Federal
    	
 
    	
73040364
    	
 
    	
1308389
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Canada
    	
 
    	
1540229
    	
 
    	
TMA835766
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Canada
    	
 
    	
714900
    	
 
    	
TMA429523
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Switzerland
    	
 
    	
59396/2011
    	
 
    	
625115
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
United Kingdom
    	
 
    	
1516265
    	
 
    	
1516265
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Community Trademarks
    	
 
    	
10201697
    	
 
    	
10201697
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Brunei
    	
 
    	
22188
    	
 
    	
19023
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
China
    	
 
    	
9895452
    	
 
    	
9895452
    	
 
    	
SHEPLERS, INC.
    


 











 

	
Trademark
    	
 
    	
Database
    	
 
    	
Application
   Number
    	
 
    	
Registration
   Number
    	
 
    	
Owner
    
	
SHEPLERS
    	
 
    	
China
    	
 
    	
9895451
    	
 
    	
9895451
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Japan
    	
 
    	
2011-060657
    	
 
    	
5532778
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Australia
    	
 
    	
1443876
    	
 
    	
1443876
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
Australia
    	
 
    	
588639
    	
 
    	
588639
    	
 
    	
SHEPLERS, INC.
    
	
SHEPLERS
    	
 
    	
New Zealand.
    	
 
    	
847911
    	
 
    	
847911
    	
 
    	
SHEPLERS, INC.
    


 

Trade Names

 

Not Applicable

 

Common Law Trademarks

 

Not Applicable

 

Trademarks Not Currently In Use

 

Not Applicable

 

Trademark Licenses

 

Not Applicable