EXHIBIT 10.34


 


FIRST
AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT


 


This
First Amendment to Amended and Restated Loan Agreement (this “Agreement”) is made and entered into as of February
28, 2014 (the “Amendment Effective Date”) by and among Black Diamond, Inc., a Delaware corporation (formerly
known as Clarus Corporation, a Delaware corporation), Black Diamond Equipment, Ltd., a Delaware corporation, Black Diamond Retail,
Inc., a Delaware corporation, Everest/Sapphire Acquisition, LLC, a Delaware limited liability company, Gregory Mountain Products,
LLC, a Delaware limited liability company, POC USA, LLC, a Delaware limited liability company, PIEPS Service, LLC, a Delaware
limited liability company, and BD European Holdings, LLC, a Delaware limited liability company (individually and collectively,
as the context requires, the “Borrower”), and Zions First National
Bank, a national banking association (“Lender”).


 


Recitals


 


A.          Lender
has previously extended to Borrower (i) a multiple advance term loan in the original principal amount of $15,000,000 (the “Term
Loan”), (ii) a revolving credit loan in the maximum principal amount of $30,000,000 (the “Revolving Loan”),
and (iii) a multiple advance acquisition term loan in the original principal amount of $10,000,000 (the “Acquisition
Loan” and, together with the Term Loan, Revolving Loan and any amendments, restatements, renewals or increases thereof,
including pursuant to this Agreement, the “Loan”), governed by that certain Amended and Restated Loan Agreement
dated March 8, 2013 by and between Borrower and Lender (as amended from time to time, the “Loan Agreement”).
The Loan is evidenced by (x) that certain Amended and Restated Promissory Note (Revolving Loan) dated March 8, 2013 from Borrower
to Lender in the maximum principal amount of $30,000,000 (as amended, restated, renewed or modified from time to time, the “Revolving
Note”), (y) that certain Promissory Note (Term Loan) dated March 8, 2013 from Borrower to Lender in the original principal
amount of $15,000,000 (as amended, restated, renewed or modified from time to time, the “Term Note”), and (z)
that certain Promissory Note (Acquisition Loan) dated March 8, 2013 from Borrower to Lender in the original principal amount of
$10,000,000 (as amended, restated, renewed or modified from time to time, the “Acquisition Note” and, together
with the Term Note and Revolving Note, individually and collectively, as the context requires, the “Note”).
Capitalized terms used but not defined herein shall have the meanings given to such terms in the Loan Agreement.


 


B.           The
Loan Agreement, Note and all other documents or instruments governing, evidencing or otherwise related to the Loan, as the same
have been and may further be amended, modified, extended, renewed, restated, or supplemented from time to time, are referred to
herein collectively as the “Loan Documents.”


 


C.           Borrower
and Lender have agreed to amend the Loan Documents as set forth herein.


 


Agreement:


 


For
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender hereby agree
as follows:


 


1.           Recitals.
Borrower and Lender each hereby acknowledge the accuracy of the Recitals, which are incorporated herein by reference.


 


2.           Definitions.
Except as otherwise provided herein, terms defined in the Loan Agreement shall have the same meaning when used herein. Terms defined
in the singular shall have the same meaning when used in the plural and vice versa.


 




    	 



    	 



    

 


3.           Modification
and Amendment of Loan Documents. The Loan Documents are hereby modified and amended as follows:


 


(a)          Deleted
Definitions. Section 1 Definitions of the Loan Agreement is hereby amended by deleting the definitions of “Acquisition
Loan” and “Acquisition Note.” 


 


(b)          New
Definition. Section 1 Definitions of the Loan Agreement is hereby further amended by adding the following new definition
in its appropriate alphabetical order:


 


“First
Amendment Effective Date” means February 28, 2014.


 


“Asset
Protection Trust” shall have the meaning set forth in Section 6.23 Creation of Trusts; Transfers to Trusts.


 


(c)          Amended
Definitions. Section 1 Definitions of the Loan Agreement is hereby further amended by amending and restating the following
definitions in their entirety to read as follows:


 


“EBITDA”
means earnings (excluding extraordinary gains and losses realized other than in the ordinary course of business and excluding
the sale or writedown of intangible or capital assets) before Interest Expense, Income Tax Expense, depreciation, amortization,
other non-cash charges (including stock-based compensation and inventory increases required in purchase accounting), Transaction
Expenses, Dry Hole Expenses and those non-recurring expenses that are approved by Lender in its sole discretion.


 


“Loan”
means, individually and collectively, as the context requires, the Revolving Loan and Term Loan.


 


“Promissory
Note” means, individually and collectively, as the context requires, the Revolving Note and the Term Note.


 


“Transaction
Expenses” means reasonable and customary costs and fees paid or accrued in connection with the closing of future Permitted
Acquisitions, including all legal, accounting, banking and underwriting fees and expenses, commissions, discounts and other issuance
expenses (including, for the avoidance of doubt, financial consultants engaged for the purpose of determining and implementing
a best practices strategy with respect to the integration of the target company into the overall Black Diamond operations, accounting
systems, culture and so forth).


 


(d)          Term
Loan. Section 2.1(a) Amount of Term Loan of the Loan Agreement is hereby amended and restated in its entirety to read
as follows:


 


a.           Amount
of Term Loan. Upon fulfillment of all conditions precedent set forth in this Loan Agreement, subject to the terms of the Term
Note, and so long as no Event of Default exists which has not been waived or timely cured, and no other breach has occurred which
has not been waived or timely cured under the Loan Documents, Lender agrees to loan Borrowers up to $10,000,000, pursuant to this
Section 2.1.


 


Notwithstanding
anything to the contrary in the Loan Documents, Borrower acknowledges and agrees that (A) an aggregate amount of $10,000,000 was
previously advanced by Lender to Borrower under the Term Loan as of the Effective Date of the Loan Agreement; (B) as of the First
Amendment Effective Date, the outstanding principal amount under the Term Loan is $9,236,596.40; (C) no additional advances shall
be made by Lender to Borrower under the Term Loan from and after the Amendment Effective Date; and (D) all references in the Loan
Documents to the Term Loan having multiple advances are of no further force and effect.


 




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(e)          Acquisition
Loan. 


 


(i)          Borrower
hereby acknowledges that the Acquisition Loan is terminated and all references to “Acquisition Loan” in the Loan Documents
are hereby deleted.


 


(ii)         Lender
acknowledges that no funds have been advanced under the Acquisition Note.


 


(iii)        Section
2.3 Acquisition Loan of the Loan Agreement is hereby amended and restated in its entirety to read as follows:


 


2.3         Intentionally
Omitted.


 


(f)          Funding
Fee. Section 2.6 Funding Fee of the Loan Agreement is hereby amended and restated in its entirety to read as follows:


 


2.6         Funding
Fee.


 


Upon
the Effective Date, Borrowers paid to Lender a funding fee on the Revolving Loan and Term Loan of $56,250. No portion of such
funding fees shall be refunded in the event of early termination of this Loan Agreement or any termination or reduction of the
right of Borrowers to request advances under this Loan Agreement. Lender is authorized and directed upon execution of this Loan
Agreement and fulfillment of all conditions precedent hereunder, to disburse a sufficient amount of the Loan proceeds to pay the
funding fee in full.


 


(g)         Minimum
EBITDA. Section 6.14(a) Minimum EBITDA of the Loan Agreement is hereby amended and restated in its entirety to read
as follows:


 


a.           Minimum
EBITDA. Black Diamond and its Subsidiaries, on a consolidated basis, measured quarterly, shall maintain Trailing Twelve Month
EBITDA as follows:


 


	Period Ending	 	Minimum
    EBITDA	 
	 	 	 	 
	December 31, 2013 through June 30, 2014	 	$	6,500,000	 
	September 30, 2014	 	$	7,500,000	 
	December 31, 2014 and thereafter	 	$	9,000,000	 



 


EBITDA
shall be adjusted on a pro forma basis for future Permitted Acquisitions, such calculations to be limited to pro forma statements
filed with the Securities Exchange Commission, or if not filed with the Securities Exchange Commission, then subject to reasonable
approval by Lender.


 


(h)         Trusts.
Section 6.23 Creation of Trusts; Transfer to Trusts is hereby added to Section 6 Covenants to read as follows:


 


6.23       Creation
of Trusts; Transfers to Trusts. 


Borrower
shall not create as settlor any trust, or transfer any assets into any trust, without giving written notice to Lender at least
thirty (30) days prior to such creation or transfer. Such notice shall describe in reasonable detail the trust to be created and/or
the asset transfer to be made. Failure by any such settlor to provide that notice shall be an Event of Default under the Loan
Documents.


 




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Borrower
shall not create as settlor any actual or purported spendthrift trust, asset protection trust or any other trust intended by its
terms or purpose (or having the effect) to protect assets from Lender or to limit the rights of Lender (an “Asset Protection
Trust”) without the prior written consent of Lender. Lender may withhold that consent in its sole discretion. Creation
of any Asset Protection Trust, and each transfer of assets thereto, by any such settlor without the Lender’s prior written
consent:


 


a.           Shall
be an Event of Default under the Loan Documents;


b.           Shall
have the effect of, and shall be deemed as a matter of law, regardless of that settlor’s solvency, of having been made by
that settlor with the actual intent of hindering and delaying and defrauding Lender and the Lenders as that settlor’s creditors;
and


c.           Shall
constitute a fraudulent transfer that is unenforceable and void (not merely voidable) as against Lender.


With
respect to each such fraudulent transfer, Lender shall have all the rights and remedies provided by state fraudulent transfer
laws, or otherwise provided at law or equity. Lender shall have the right to obtain an ex parte court order directing the trustee
of the Asset Protection Trust to give Lender written notice a reasonable time (of not less than ten (10) Banking Business Days)
prior to making any distribution from said trust. Nothing in this paragraph shall limit or affect any rights or remedies otherwise
provided to Lender by law, equity or any contract.


 


(i)           Pieps
Corporation. 


 


(i)          Lender
has been informed that Pieps Corporation has been dissolved (the “Pieps Dissolution”).


 


(ii)         Borrower
represents and warrants to Lender that at the time of its dissolution, Pieps Corporation owned no assets.


 


(iii)        All
references to “Pieps Corporation” in the Loan Documents are hereby deleted.


 


4.           Conforming
Modifications. Each reference in the Loan Documents to any of the Loan Documents shall be a reference to such documents as
modified herein. Each of the Loan Documents is modified to be consistent herewith and to provide that it shall be a default or
an Event of Default thereunder if Borrower shall fail to comply with any of the covenants of Borrower herein or if any representation
or warranty by Borrower herein is materially incomplete, incorrect, or misleading as of the date hereof.


 


5.           Fees
and Expenses; Closing Fee.


 


(a)          Fees
and Expenses. In consideration of Lender’s agreement to amend and modify the Loan and the Loan Documents, Borrower has
agreed to pay to Lender (i) all reasonable legal fees and expenses incurred by Lender in connection herewith or with the Loan
and the Loan Documents accrued and unpaid as of the date hereof; (ii) all other reasonable costs and expenses incurred by Lender
in connection with this Agreement; and (iii) an amendment fee in the amount of $20,000.


 


(b)          Method
of Payment. The foregoing fees and expenses shall be paid by Borrower to Lender on the date hereof or at such later date as
such fees, costs and expenses are incurred by Lender; provided, however, that if such fees and expenses are not promptly paid,
Lender is authorized and directed, upon execution of this Agreement and fulfillment of all conditions precedent hereunder, to
disburse a sufficient amount of the Loan to pay these fees and expenses in full. Borrower acknowledges and agrees that such fees,
costs, and expenses are fully earned and nonrefundable as of the date this Agreement is executed and delivered by the parties
hereto, and that no portion of such fee shall be refunded in the event of early termination of the Loan Agreement or any termination
or reduction of the right of Borrower to request advances under the Loan Agreement.


 




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6.           Conditions
Precedent to Closing this Agreement. This Agreement shall not become effective until the following conditions have been completed
and proof of their completion has been provided to Lender:


 


(a)          On
or prior to the execution and delivery of this Agreement, Borrower shall have executed and delivered, or caused to be executed
and delivered, to Lender, each in form and substance satisfactory to Lender, such other documents, instruments, resolutions, subordinations,
and other agreements as Lender may require in its sole discretion, including, without limitation, the Amended and Restated Promissory
Note (Term Loan), consent resolutions of each Borrower, and disbursement instructions.


 


(b)          Borrower
shall pay Lender all fees and expenses identified in Section 5(a) of this Agreement.


 


(c)          As
of the date hereof, the following shall be true and correct: (i) all representations and warranties made by Borrower in the Loan
Documents are true and correct in all material respects (other than representations and warranties which expressly speak of a
different date, which representations shall be made only on such date); and (ii) no Event of Default has occurred and no conditions
exist and no event has occurred, which, with the passage of time or the giving of notice, or both, would constitute an Event of
Default.


 


(d)          Borrower
shall have performed or complied with all covenants set forth in this Agreement that are required to be performed or complied
with by Borrower.


 


All
conditions precedent set forth in this Agreement are for the sole benefit of Lender and may be waived unilaterally by Lender.


 


7.           Representations
and Warranties. Borrower represents and warrants to Lender as follows:


 


(a)          No
Event of Default has occurred and no conditions exist and no event has occurred, which, with the passage of time or the giving
of notice, or both, would constitute an Event of Default.


 


(b)          There
has been no material adverse change in the financial condition of Borrower or any other person whose financial statement has been
delivered to Lender in connection with the Loan from the most recent financial statement received by Lender.


 


(c)          Each
and all representations and warranties of Borrower in the Loan Documents are true and correct in all material respects as of the
date hereof (other than representations and warranties which expressly speak as of a different date, which representations shall
be made only on such date).


 


(d)          As
of the date hereof, Borrower has no any claims, counterclaims, defenses, or set-offs with respect to the Loan or the Loan Documents
as modified herein.


 


(e)          The
Loan Documents as modified herein are the legal, valid, and binding obligation of Borrower, enforceable against Borrower in accordance
with their terms.


 


(f)          Borrower
has the requisite power and authority to execute and deliver this Agreement and to perform the Loan Documents as modified herein.


 


(g)          The
execution and delivery of this Agreement and the performance of the Loan Documents as modified herein have been duly authorized
by all requisite action by or on behalf of Borrower.


 




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(h)          This
Agreement has been duly executed and delivered on behalf of Borrower.


 


8.           Covenants.


 


(a)          Borrower
shall execute, deliver, and provide to Lender such additional agreements, documents, and instruments as reasonably required by
Lender to effectuate the intent of this Agreement.


 


(b)          Borrower
fully, finally, and forever releases and discharges Lender and its successors, assigns, directors, officers, employees, agents,
and representatives from any and all actions, causes of action, claims, debts, demands, liabilities, obligations, and suits, of
whatever kind or nature, in law or equity, that Borrower has or in the future may have, whether known or unknown, in respect of
the Loan, the Loan Documents, or the actions or omissions of Lender in respect of the Loan or the Loan Documents that arise from
events occurring prior to the date of this Agreement.


 


9.           Loan
Documents Remain in Full Force and Effect. Except as expressly amended or modified by this Agreement, the Loan Documents remain
in full force and effect.


 


10.         Integrated
Agreement; Amendment. Section 9.24 Integrated Agreement and Subsequent Amendment of the Loan Agreement is hereby incorporated
herein by reference, with each reference to the Loan Agreement or Loan Documents being deemed a reference thereto as modified
by this Agreement.


 


11.         Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF UTAH.


 


12.         Time.
Time is of the essence with respect to this Agreement.


 


13.         Counterpart
Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same document. Signature pages may be detached from the counterparts and attached
to a single copy of this Agreement to physically form one document. Receipt by Lender of an executed copy of this Agreement by
facsimile or electronic mail shall constitute conclusive evidence of execution and delivery of this Agreement by the signatory
thereto.


 


[Signature Pages
Follow]


 




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


 





	 	Lender:
	 	 
	 	Zions First National Bank
	 	 
	 	By: 	/s/ Michael R. Brough
	 	Name: Michael R. Brough
	 	Title: Senior Vice President
	 	 
	 	Borrower:
	 	 
	 	Black Diamond Equipment, Ltd.
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name: Aaron J. Kuehne
	 	Title: Chief Financial Officer and Secretary
	 	 
	 	Black Diamond Retail, Inc.
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name:  Aaron J. Kuehne
	 	Title: Chief Financial Officer and Secretary
	 	 
	 	Black Diamond, Inc.
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name:  Aaron J. Kuehne
	 	Title: Chief Financial Officer, Treasurer and Secretary
	 	 
	 	Everest/Sapphire Acquisition, LLC
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name: Aaron J. Kuehne
	 	Title: Treasurer and Secretary


  


FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AGREEMENT


Signature Pages


 




    	 



    	 



    

 


	 	Gregory Mountain Products, LLC
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name: Aaron J. Kuehne
	 	Title:  Treasurer
	 	 
	 	POC USA, LLC
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name: Aaron J. Kuehne
	 	Title: Treasurer and Secretary
	 	 
	 	BD European Holdings, LLC
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name: Aaron J. Kuehne
	 	Title: Treasurer and Secretary
	 	 
	 	PIEPS Service, LLC
	 	 
	 	By:	/s/ Aaron J. Kuehne
	 	Name: Aaron J. Kuehne
	 	Title: Treasurer and Secretary


 


FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AGREEMENT


Signature Pages


 




    	 



    	 



    

  


Each
undersigned subordinated creditor hereby (i) acknowledges and consents to the modification of the Loan Documents and all other
matters in this Agreement, (ii) reaffirms the subordination agreements and any other agreements executed by the subordinated creditor
(collectively, the “Subordination Documents”), (iii) acknowledges that the Subordination Documents continue
in full force and effect, remain unchanged, except as specifically modified hereby, and are valid, binding and enforceable in
accordance with their respective terms, (iv) agrees that all references, if any, in the Subordination Documents to any of the
Loan Documents are modified to refer to those documents as modified hereby, and (v) agrees that it has no offset, defense or counterclaim
to the enforcement against it of the provisions of the Subordination Documents.


 


	 	Kanders GMP Holdings, LLC
	 	 
	 	By: 	/s/ Warren B. Kanders
	 	Name: Warren B. Kanders
	 	Title: Manager
	 	 
	 	Deborah Schiller 2005 Revocable Trust Dated September 27, 2005
	 	 
	 	By: 	/s/ Deborah Schiller
	 	Name: Deborah Schiller
	 	Title: Trustee
	 	 
	 	Robert R. Schiller 2013 Cornerstone Trust Dated June 24, 2013
	 	 
	 	By: 	/s/ Deborah Schiller
	 	Name: Deborah Schiller
	 	Title: Trustee