TRADEMARK SECURITY AGREEMENT
Exhibit 10.9
[Execution]
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 XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Xxxxx 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/ Xxxx Xxxxxxx | |
|
|
|
Name: |
Xxxx Xxxxxxx |
|
|
|
Title: |
Chief Financial Officer and Secretary |
|
|
|
|
|
|
AGENT: |
|
|
|
|
|
|
|
|
|
|
ACCEPTED AND ACKNOWLEDGED BY: | ||
|
|
| ||
|
|
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent | ||
|
|
|
| |
|
|
|
| |
|
|
By: |
/s/ Xxxxx Xxxxx Marks | |
|
|
|
Name: |
Xxxxx Xxxxx Marks |
|
|
|
Title: |
Managing Director |
[Signature Page to Trademark Security Agreement]
SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
Trademark Registrations/Applications
|
Trademark |
|
Database |
|
Application |
|
Registration |
|
Owner |
|
RED RANCH
|
|
U.S. Federal |
|
85726040 |
|
4552405 |
|
SHEPLERS, INC. |
|
XXXXXX TRADING COMPANY ESTABLISHED 1899
|
|
U.S. Federal |
|
85724728 |
|
|
|
SHEPLERS, INC. |
|
RED RANCH |
|
U.S. Federal |
|
85434444 |
|
4258838 |
|
SHEPLERS, INC. |
|
XXXXXX 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 |
|
Registration |
|
Owner |
|
XXXXXX 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 |
|
Registration |
|
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 |
|
Registration |
|
Owner |
|
S SHEPLERS INC. |
|
U.S. Federal |
|
73041013 |
|
1017594 |
|
SHEPLERS, INC. |
|
S |
|
U.S. Federal |
|
73040683 |
|
1057698 |
|
SHEPLERS, INC. |
|
Trademark |
|
Database |
|
Application |
|
Registration |
|
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. |
|
XXXXXXXX |
|
Xxxxxx |
|
000000 |
|
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 |
|
Registration |
|
Owner |
|
SHEPLERS |
|
China |
|
9895451 |
|
9895451 |
|
SHEPLERS, INC. |
|
SHEPLERS |
|
Japan |
|
2011-060657 |
|
0000000 |
|
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
