Unassociated Document


    Exhibit
10.4

    


    First
Substitute Promissory Note

    Revolving
Line of Credit

     

    May 28,
2010

     

    
      	
              Borrowers:

            	
              Black
      Diamond Equipment, Ltd.

            


    

    
      	
               
      

            	
              Black
      Diamond Retail, Inc.

            


    

    
      	
               
      

            	
              Clarus
      Corporation

            


    

    
      	
               
      

            	
              Everest/Sapphire
      Acquisition, LLC

            


    

    
      	
               
      

            	
              Gregory
      Mountain Products, LLC

            


    

    


    
      	
              Lender:

            	
              Zions
      First National Bank

            


    

     

    
      	
              Amount:

            	
              $35,000,000.00

            


    

     

    Maturity
Date: July 2, 2013

     

    For value
received, Black Diamond Equipment, Ltd., a Delaware corporation, Black Diamond
Retail, Inc., a Delaware corporation, Clarus Corporation, a Delaware
corporation, Everest/Sapphire Acquisition, LLC, a Delaware limited liability
company, and Gregory Mountain Products, LLC, a Delaware limited liability
company (individually and collectively herein, “Borrowers”), promise to pay to
the order of Zions First National Bank (“Lender”) at its Corporate Banking
Group, 10 East South Temple, Suite 200, Salt Lake City, Utah 84133, the sum of
thirty-five million dollars ($35,000,000.00) or such other principal balance as
may be outstanding hereunder in lawful money of the United States with interest
thereon calculated and payable as provided herein.

     

    Definitions

     

    Terms
used in the singular shall have the same meaning when used in the plural and
vice versa.  As used in this Promissory Note, the term:

     

    “Banking
Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in the State of Utah are authorized or required to
close.

     

    “Default
Rate” means Ninety Day LIBOR Rate plus seven and five-tenths percent (7.5%) per
annum.

     

    “Dollars”
and the sign “$” mean lawful money of the United States.

     

    “EBITDA”
shall have the meaning set forth in the Loan Agreement.

     

    “Loan
Agreement” means the Loan Agreement dated May 28, 2010 between Lender and
Borrowers, together with any exhibits, amendments, addenda, and
modifications.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    “Ninety
Day FHLB Rate” means the rate per annum quoted by Lender as Lender’s Ninety Day
Federal Home Loan Bank rate based upon the FHLB Seattle rate as quoted in
Bloomberg, or on the FHLB Seattle internet web site at www.FHLBsea.com, or other
comparable service selected by Lender.  The definition of “Ninety Day
FHLB Rate” is to be strictly interpreted and is not intended to serve any
purpose other than providing an index to determine the interest rate used
herein.  It is not necessarily the lowest rate charged by Lender on
its loans.  If the Ninety Day FHLB Rate becomes unavailable during the
term of this Promissory Note, Lender may designate a substitute index after
notifying Borrowers.

     

    “Ninety
Day LIBOR Rate” means the rate per annum quoted by Lender as its Ninety Day
LIBOR Rate based upon quotes from the London Interbank Offered Rate from the
British Bankers Association Interest Settlement Rates as quoted for United
States Dollars by Bloomberg or other comparable services selected by
Lender.  This definition of “Ninety Day LIBOR Rate” is to be strictly
interpreted and is not intended to serve any purpose other than providing an
index to determine the interest rate used herein.  It is not the
lowest rate at which Lender may make loans to any of its customers, either now
or in the future.

     

    “Senior
Net Debt” shall have the meaning set forth in the Loan Agreement.

     

    “Trailing
Twelve Month” shall have the meaning set forth in the Loan
Agreement.

     

    Interest

     

    Interest shall accrue on the
outstanding principal balance hereunder from the date of disbursement until
paid, both before and after judgment, at a variable rate computed on the basis
of the Ninety Day LIBOR Rate from time to time in effect, adjusted as of the
date of any change in the Ninety Day LIBOR Rate, and on a three hundred sixty
(360) day year as follows: (A) Ninety Day LIBOR Rate plus three and five-tenths
percent (3.5%) per annum at all times that Borrowers’ Senior Net Debt to
Trailing Twelve Month EBITDA ratio is greater than or equal to two and
five-tenths (2.5); (B) Ninety Day LIBOR Rate plus two and seventy-five
hundredths percent (2.75%) per annum at all times that Borrowers’ Senior Net
Debt to Trailing Twelve Month EBITDA ratio is less than two and five-tenths
(2.5).

     

    Notwithstanding the foregoing, if
Lender reasonably determines (which determination shall be conclusive) that (i)
quotations of interest rates referred to in the definition of
Lender’s  Ninety Day LIBOR Rate are not being provided in the relevant
amounts or for the relevant maturities for purposes of Lender determining the
Ninety Day LIBOR Rate, (ii) the adoption of any applicable law, rule, or
regulation or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank, or
comparable agency charged with the interpretation or administration thereof, or
compliance by Lender with any request or directive (whether or not having the
force of law) of any such authority, central bank, or comparable agency shall
make it unlawful or impossible for Lender to offer loans based on the Ninety Day
LIBOR Rate, or (iii) the Ninety Day LIBOR Rate does not adequately cover the
cost of Lender making or maintaining advances based on the Ninety Day LIBOR
Rate, then Lender shall give notice thereof to Borrowers, whereupon until Lender
notifies Borrowers that the circumstances giving rise to such suspension no
longer exist, the interest rate hereunder shall be converted to a variable rate
computed on the basis of the Ninety Day FHLB Rate, adjusted as of the date of
any change in the Ninety Day FHLB Rate, and a three hundred sixty (360) day year
as follows:  (A) Ninety Day FHLB Rate plus three and five-tenths
percent (3.5%) per annum at all times that Borrowers’ Senior Net Debt to
Trailing Twelve Month EBITDA ratio is greater than or equal to 2.5; (B) Ninety
Day FHLB Rate plus two and seventy-five hundredths percent (2.75%) per annum at
all times that Borrowers’ Senior Net Debt to Trailing Twelve Month EBITDA ratio
is less than 2.5.


    
      
         


      

      
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    The foregoing margins above the Ninety
Day LIBOR Rate or Ninety Day FHLB Rate shall adjust on the first day of each
month following the later of the due date or date of receipt of the quarterly or
annual financial statements to be provided by Borrowers pursuant to the Loan
Agreement.

     

    Notwithstanding the foregoing, in no
case shall interest be less than three and twenty-five hundredths percent
(3.25%) per annum, regardless of Borrowers’ Senior Net Debt to Trailing Twelve
Month EBITDA ratio and regardless of the Ninety Day LIBOR Rate or Ninety Day
FHLB Rate.

     

    Revolving Line of
Credit

     

    This
Promissory Note shall be a revolving line of credit under which Borrowers may
repeatedly draw and repay funds, so long as no Event of Default has occurred
hereunder or under the Loan Agreement which has not been timely cured or
waived.  All disbursements under this Promissory Note shall be made in
accordance with the Loan Agreement.

     

    Principal
and interest shall be payable as follows: Interest accrued is to be paid monthly
in arrears commencing June 1, 2010, and on the same day of each month
thereafter.  All principal and unpaid interest shall be paid in full
on July 2, 2013.

     

    All
payments shall be applied first to accrued interest and the remainder, if any,
to principal.

     

    Prepayment

     

    Borrowers
may prepay all or any portion of this Promissory Note at any time without
penalty.  Any prepayment received by Lender after 2:00 p.m. Mountain
Time shall be deemed received on the following Banking Business
Day.  Any prepayment may be subject to fees or charges relating to the
breakage of or constitute a termination event under an Interest Rate Management
Transaction (as defined in the Loan Agreement).

     

    General

     

    This
Promissory Note is made in accordance with, governed by, and deemed to be a
promissory note under, and subject to all terms and conditions of, the Loan
Agreement.

     

    If, at
any time prior to the maturity of this Promissory Note, this Promissory Note
shall have a zero balance owing, this Promissory Note shall not be deemed
satisfied or terminated by and shall remain in full force and effect for future
draws unless terminated upon other grounds.


    
      
         


      

      
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    Upon an
Event of Default in payment of any principal or interest when due, whether due
at stated maturity, by acceleration, or otherwise, all outstanding principal
shall bear interest at the Default Rate from the date when due until paid, both
before and after judgment.

     

    If an
Event of Default occurs, time being the essence hereof, then the entire unpaid
balance, with interest as aforesaid, shall, at the election of the holder hereof
and without notice of such election, become immediately due and payable in
full.

     

    If an
Event of Default occurs, Borrowers agree to pay to the holder hereof all
collection costs, including reasonable attorney fees and legal expenses, in
addition to all other sums due hereunder.

     

    This
Promissory Note shall be governed by and construed in accordance with the laws
of the State of Utah.

     

    Borrowers
acknowledge that by execution and delivery of this Promissory Note Borrowers
have transacted business in the State of Utah and Borrowers voluntarily submit
to, consent to, and waive any defense to the jurisdiction of courts located in
the State of Utah as to all matters relating to or arising from this Promissory
Note.  EXCEPT AS EXPRESSLY AGREED IN WRITING BY LENDER AND EXCEPT AS
PROVIDED IN THE ARBITRATION PROVISIONS IN THE LOAN AGREEMENT, THE STATE AND
FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND EXCLUSIVE
JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND CONTROVERSIES, ARISING UNDER
OR RELATING TO THIS PROMISSORY NOTE.  NO LAWSUIT, PROCEEDING, OR ANY
OTHER ACTION RELATING TO OR ARISING UNDER THIS PROMISSORY NOTE MAY BE COMMENCED
OR PROSECUTED IN ANY OTHER FORUM EXCEPT AS EXPRESSLY AGREED IN WRITING BY
LENDER.

     

    All
obligations of Borrowers under this Promissory Note shall be joint and
several.

     

    Borrowers
and all endorsers, sureties and guarantors hereof hereby jointly and severally
waive presentment for payment, demand, protest, notice of protest, notice of
protest and of non-payment and of dishonor, and consent to extensions of time,
renewal, waivers or modifications without notice and further consent to the
release of any collateral or any part thereof with or without
substitution.


    
      
         


      

      
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                                                Borrowers:

                                              
	 
      	 
      
	 
      	
                                                Black
      Diamond Equipment, Ltd.

                                              
	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/
      Peter Metcalf

                                              
	 
      	
                                                Name:

                                              	
                                                 Peter
      Metcalf

                                              
	 
      	
                                                Title:

                                              	
                                                 Chief
      Executive Officer and President

                                              
	 
      	 
      
	 
      	
                                                Black
      Diamond Retail, Inc.

                                              
	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/
      Peter Metcalf

                                              
	 
      	
                                                Name:

                                              	
                                                 Peter
      Metcalf

                                              
	 
      	
                                                Title:

                                              	
                                                 Chief
      Executive Officer and President

                                              
	 
      	 
      	 
      
	 
      	
                                                Clarus
      Corporation

                                              
	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/
      Peter Metcalf

                                              
	 
      	
                                                Name:

                                              	
                                                 Peter
      Metcalf

                                              
	 
      	
                                                Title:

                                              	
                                                 Chief
      Executive Officer and President

                                              
	 
      	 
      
	 
      	
                                                Everest/Sapphire
      Acquisition, LLC

                                              
	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/
      Peter Metcalf

                                              
	 
      	
                                                Name:

                                              	
                                                 Peter
      Metcalf

                                              
	 
      	
                                                Title:

                                              	
                                                 President

                                              
	 
      	 
      	 
      
	 
      	
                                                Gregory
      Mountain Products, LLC

                                              
	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/
      Peter Metcalf

                                              
	 
      	
                                                Name:

                                              	
                                                 Peter
      Metcalf

                                              
	 
      	
                                                Title:

                                              	
                                                 President

                                              


                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                   

                

              

            

          

        

      

    

    
      
         


      

      
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