EXHIBIT 10.39


 


AMENDED AND RESTATED SUBORDINATION AGREEMENT


(SCHILLER)


 


This Amended and
Restated Subordination Agreement (this “Agreement”) is made and entered into as of March 8, 2013 by Deborah
Schiller 2005 Revocable Trust Dated September 27, 2005 and Robert R. Schiller Cornerstone Trust Dated September 9, 2010, and Schiller
Gregory Investment Company, LLC (collectively, the “Creditors”), Black Diamond Equipment, Ltd., Black Diamond
Retail, Inc., Black Diamond, Inc. (formerly known as Clarus Corporation) (“BDI”), Everest/Sapphire Acquisition,
LLC, Gregory Mountain Products, LLC, POC USA, LLC, Pieps Corporation, PIEPS Service, LLC, and BD European Holdings, LLC (collectively,
the “Borrowers”), and Zions First National Bank (“Lender”).


 


Recitals


 


1.          Lender
has previously extended to certain Borrowers a revolving line of credit loan in the principal amount of $35,000,000 (as amended
from time to time, the “Original Loan”), governed by that certain Loan Agreement dated May 28, 2010 (as amended
from time to time, the “Original Loan Agreement”). The Original Loan is evidenced by that certain Third Substitute
Promissory Note (Revolving Line of Credit) dated October 4, 2012.


 


2.          BDI
is indebted to Deborah Schiller 2005 Revocable Trust Dated September 27, 2005 and Robert R. Schiller Cornerstone Trust Dated September
9, 2010 pursuant to that certain 5% Unsecured Subordinated Note due May 28, 2017 (the “Subordinated Note Maturity Date”)
in the original principal amount of $7,538,578.00 (the “2010 Subordinated Promissory Note”), which Subordinated
Promissory Note is the subject of that certain Subordination Agreement dated May 28, 2010 (the “Original Subordination
Agreement”).


 


3.          BDI
is also indebted to Schiller Gregory Investment Company, LLC pursuant to (i) that certain 5% Unsecured Subordinated Note due the
Subordinated Note Maturity Date in the original principal amount of $149,229.19 (the “May 2012 Subordinated Promissory
Note”); and (ii) that certain 5% Unsecured Subordinated Note due the Subordinated Note Maturity Date in the original
principal amount of $40,268.15 (the “August 2012 Subordinated Promissory Note”, together with the 2010 Subordinated
Promissory Note and the May 2012 Subordinated Promissory Note, collectively, the “Subordinated Promissory Notes”).


 


4.          Borrowers
and Lender are refinancing the Original Loan and entering into that certain Amended and Restated Loan Agreement of even date herewith
(together with any exhibits, amendments, addendums, and modifications, the “Restated Loan Agreement”), governing
the following loan facilities: (a) a revolving line of credit in the maximum principal amount of $30,000,000 (the “Revolving
Loan”), (b) an amortizing term loan in the original principal amount of $15,000,000 (the “Term Loan”),
and (c) an amortizing term loan in the original principal amount of $10,000,000 (the “Acquisition Loan” and,
together with the Revolving Loan and Term Loan, collectively, the “Loan”).


 




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5.          Creditors’
subordination of their rights under the Subordinated Promissory Notes pursuant to the terms of the Original Subordination Agreement
as well as pursuant to the terms of each of the Subordinated Promissory Notes applies to Borrowers’ debt to Lender under
the Original Loan, including any increase in the principal amount or extension of the time to repay such obligations as applicable
in the Loan.


 


6.          As
a condition to making the Loan to Borrowers, Lender requires that Creditors enter into this Agreement to amend and restate the
Original Subordination Agreement in its entirety.


 


Agreement


 


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


 


1.          Definitions.
Terms used in the singular shall have the same meaning when used in the plural and vice versa. In addition to the terms defined
above, as used herein, the term:


 


a.           
“Creditor Indebtedness” means the indebtedness of BDI to Creditors evidenced by the Subordinated Promissory Notes,
together with any and all renewals, extensions, modifications, and replacements thereof, and all other indebtedness of BDI to Creditors
arising from or related thereto.


 


b.           “Default
Rights and Remedies” means any and all rights and remedies granted in, arising from, or relating to any agreement, instruction,
or document and any and all rights and remedies now or hereafter existing by statute, at law, or in equity, which may be exercised
only upon the occurrence of a breach or event of default.


 


c.           
“Lender Indebtedness” means the indebtedness of Borrowers to Lender governed by the Restated Loan Agreement and evidenced
by (i) an Amended and Restated Promissory Note (Revolving Loan) of even date herewith in the maximum principal amount of $30,000,000
(the “Revolving Note”), (ii) a Promissory Note (Term Loan) of even date herewith in the original principal amount
of $15,000,000 (the “Term Note”), and (iii) Promissory Note (Acquisition Loan) of even date herewith in the
original principal amount of $10,000,000 (the “Acquisition Note” and, together with the Revolving Note and Term
Note, collectively the “Notes”), together with any and all renewals, extensions, modifications, and replacements
thereof, including any increase in the principal amount thereof, and all other indebtedness of Borrowers to Lender arising from
or relating thereto.


 


2.          Warranties
Regarding Creditor Indebtedness. Creditors represent and warrant to Lender that the Creditor Indebtedness is not secured by
any collateral, security interest or lien and Creditors covenant and agree that the Creditor Indebtedness shall remain unsecured
so long as any amount is outstanding and unpaid on the Lender Indebtedness. 


 


3.          Exercise
of Default and Remedies. Creditors agree that they will not exercise any Default Rights and Remedies concerning the Creditor
Indebtedness, so long as any amount is outstanding and unpaid on the Lender Indebtedness, without the prior written consent of
Lender, except that, in the event that BDI files for bankruptcy relief, Creditors may file a proof of claim in the bankruptcy.


 




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4.          Conditions
to Payment on Creditor Indebtedness. BDI may make regularly scheduled cash interest payments on the Subordinated Promissory
Notes which, subject to Section 6, will not to exceed five percent (5%) per annum (“Interest Payments”), until
(i) an Event of Default (as defined in the Restated Loan Agreement) exists and is continuing, and written notice of the same has
been given by Lender to Creditors, or (ii) Borrowers are not, both before and after giving effect to any Interest Payment, in compliance
with the financial covenants specified in the Restated Loan Agreement. If BDI makes any payment to Creditors in violation of these
conditions, Creditors covenant and agree that upon written demand by Lender the payment shall be promptly tendered to Lender to
be applied toward payment of the Lender Indebtedness.


 


If an Event of Default
(as defined in the Subordinated Promissory Notes) occurs under any Subordinated Promissory Note as a result of BDI failing to pay
any Interest Payments, Lender agrees to waive the resulting Event of Default (as defined in the Restated Loan Agreement), so long
as (i) no other Event of Default (as defined in the Restated Loan Agreement) exists and is continuing and (ii) Borrowers are, both
before and after giving effect to any Interest Payment, in compliance with the financial covenants specified in the Restated Loan
Agreement. If additional Events of Default (as defined in the Restated Loan Agreement) exist at the time the Event of Default (as
defined in the Restated Loan Agreement) related to BDI’s failure to pay the Interest Payments, Lender may waive the Event
of Default (as defined in the Restated Loan Agreement) based upon failure to pay Interest Payments in connection with waiver of
other Events of Defaults (as defined in the Restated Loan Agreement); provided, however, that Lender shall not be prohibited hereunder
from waiving such Event of Default (as defined in the Restated Loan Agreement), if it has received written notice from the holder(s)
of a majority of the aggregate principal amount of all of the holders of the Creditor Indebtedness that Lender shall not be prohibited
hereunder from waiving such Event of Default (as defined in the Restated Loan Agreement).


 


5.          Prohibition
of Prepayment of Creditor Indebtedness. BDI covenants that it will not make, and Creditors covenant and agree that they will
not receive or accept, any prepayment on the Creditor Indebtedness so long as any amount is outstanding and unpaid on the Lender
Indebtedness, without the prior written consent of Lender. However, if Creditors receive any prepayment in violation of this covenant,
such payments shall be received in trust for Lender and shall be immediately tendered to Lender to be applied toward payment of
the Lender Indebtedness.


 


6.          Subordination
of Payment. Except as provided in Section 4 above, so long as any amount is outstanding and owing to Lender on or related to
the Lender Indebtedness:


 


a.           The
right of Creditors to receive payment, whether of principal or interest, on the Creditor Indebtedness is subordinated to the right
of Lender to receive payment on the Lender Indebtedness.


 




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b.           BDI
covenants that it will not make, and Creditors covenant and agree that they will not receive or accept, any payments from or on
behalf of Borrowers or any other obligor on the Creditor Indebtedness without the prior written consent of Lender; provided, however,
Creditors may receive and accept payments from or on behalf of Borrowers on the Creditor Indebtedness so long as each of the following
requirements is met:


 


(i)          The
Term Loan and Acquisition Loan have each been irrevocably repaid in full;


 


(ii)         Both
before and after giving effect to any such payment, Borrowers are in compliance with the financial covenants specified in the Restated
Loan Agreement; and


 


(iii)        Borrowers
do not use the Revolving Loan to make the payment on the Creditor Indebtedness; provided, however, Borrowers may use the Revolving
Loan to fund principal and interest payments on the Creditor Indebtedness so long as Borrowers provide evidence to Lender that
such use of the Revolving Loan will not impair Borrowers’ liquidity and availability under the Revolving Loan for funding
capital expenditures, seasonal working capital, and other corporate obligations and operational cash requirements (collectively,
the “Subordinated Debt Repayment Requirements”).


 


Creditors and
BDI agree that if (1) the Creditor Indebtedness remains outstanding and (2) Borrowers do not meet the Subordinated Debt Repayment
Requirements as of the date which is 30 days prior to the Subordinated Note Maturity Date, Creditors agree that on or before the
Subordinated Note Maturity Date Creditors shall extend the Subordinated Note Maturity Date to the earlier of (y) the earliest date
on which the Borrowers satisfy the Subordinated Debt Repayment Requirements, and (z) one year after the Subordinated Note Maturity
Date. If 30 days prior to such extended one year Subordinated Note Maturity Date the Subordinated Debt Repayment Requirements have
not been met, then the Subordinated Note Maturity Date shall be extended further as provided in the prior sentence. In the event
that the Subordinated Note Maturity Date is extended as described above, then the interest rate per annum payable under the Subordinated
Promissory Notes, or any renewal, extension, modification or replacement thereof, shall be the higher of (y) 5% and (z) the then
prevailing market rate of interest for subordinated notes of this type, provided that in no event shall such interest rate exceed
15% per annum.


 


If Creditors
receive any cash payment in violation of this covenant, such cash payments shall be received in trust for Lender and shall be promptly
tendered to Lender to be applied toward payment of the Lender Indebtedness.


 


7.          Conversion
to Equity. Notwithstanding anything to the contrary in this Agreement, Creditors may at any time convert the Creditor Indebtedness
and any interest thereon into equity of BDI.


 


8.          Controlling
Agreement. In the event of any conflict or inconsistency between the terms and provisions of the Subordinated Promissory Notes
and this Agreement, this Agreement shall govern and any conflicting or inconsistent provisions of this Agreement supersedes the
Subordinated Promissory Notes.


 




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9.          No
Waiver of Other Rights. This Agreement is intended solely for the purpose of defining the relative
rights of Lender and Creditors and nothing contained herein is intended to nor shall impair the obligations of Borrowers, or any
other obligors, to pay Lender or Creditors, as the case may be, the principal and interest on the Lender Indebtedness and the Creditor
Indebtedness as and when the same shall become due and payable in accordance with their terms, subject to the rights of Lender
created by this Agreement. For the sake of clarity, the agreements and covenants of Creditors under this Agreement apply only with
respect to the Creditor Indebtedness and shall not affect the rights of the Creditors arising under any other agreement.


 


10.         Successors
and Benefits. This Agreement is and shall be binding upon and shall inure to the benefit of Lender, Borrowers, Creditors and
their respective successors and assigns.


 


11.         Notices


 


All notices or demands
by any party to this Agreement shall, except as otherwise provided herein, be in writing and may be sent by certified mail, return
receipt requested. Notices so mailed shall be deemed received when deposited in a United States post office box, postage prepaid,
properly addressed at the mailing addresses stated herein or to such other addresses as Creditors, Borrowers or Lender may from
time to time specify in writing. Any notice so addressed and otherwise delivered shall be deemed to be given when actually received
by the addressee.


 


Mailing addresses:


 


Lender:


 


Zions First National Bank


Corporate Banking Group


One South Main, Suite 200


Salt Lake City, Utah 84111


Attention: Michael R. Brough


Senior Vice President


 


With a copy to:


 


Holland & Hart LLP


222 South Main Street, Suite 2200


Salt Lake City, Utah 84101


Attention: Scott R. Irwin, Esq.


 


With respect to all Borrowers:


 


c/o Black Diamond, Inc.


2084 East 3900 South


Salt Lake City, Utah 84124


Attention: Executive Chairman and
Chief Executive Officer


 




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With a copy to:


 


Kane Kessler, P.C.


1350 Avenue of the Americas, 26th
Floor


New York, New York 10019


Attention:
Robert L. Lawrence, Esq.


 


With respect to all Creditors:


 


Robert Schiller


3940 Alhambra Drive West


Jacksonville FL 32207


 


12.         Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah.


 


13.         Continuing
Agreement. All agreements, representations, warranties, and covenants made herein shall survive the execution and delivery
of this Agreement and shall continue in effect so long as the Lender Indebtedness or any portion thereof is outstanding and unpaid.


 


14.         Counterparts,
Originals. This Agreement 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 Agreement. Receipt by telecopy or email of any executed signature page to this Agreement shall constitute effective delivery
of such signature page.


 


15.         Entire
Agreement. This Agreement constitutes the entire agreement between Lender, Borrowers and Creditors concerning the subject matter
hereof. Except as expressly provided herein, all other prior and contemporaneous agreements concerning the subject matter hereof
are merged herein. This Agreement may not be terminated, amended, or modified except in writing signed by Lender, Borrowers and
Creditors.


 


This Amended and Restated Subordination
Agreement restates, replaces and supersedes in its entirety, the Original Subordination Agreement.


 


[Signature Pages Follow]


 




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IN WITNESS WHEREOF,
this Agreement has been executed and becomes effective as of the day and year first set forth above.


 


	 	Lender:
	 	 	 
	 	Zions First National Bank
	 	 	 
	 	By:	/s/ Michael R. Brough
	 	Name:	Michael R. Brough
	 	Title:	Senior Vice President
	 	 	 
	 	Creditors:
	 	 	 
	 	
        Deborah Schiller 2005 Revocable Trust

        Dated September 27, 2005

	 	 	 
	 	By:	/s/ Deborah Schiller
	 	Name:	Deborah Schiller
	 	Title:	Trustee
	 	 	 
	 	
        Robert R. Schiller Cornerstone Trust

        Dated September 9, 2010

	 	 	 
	 	By:	/s/ Deborah Schiller
	 	Name:	Deborah Schiller
	 	Title:	Trustee
	 	 	 
	 	Schiller Gregory Investment Company, LLC
	 	 	 
	 	By:	/s/ Robert R. Schiller
	 	Name:	Robert R. Schiller
	 	Title:	Manager


 


AMENDED AND RESTATED SUBORDINATION AGREEMENT


Schiller


Signature Pages


 




    	 



    	 



    

 


	 	Borrowers:
	 	 
	 	Black Diamond Equipment, Ltd.
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Chief Financial Officer and Secretary
	 	 	 
	 	Black Diamond Retail, Inc.
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Chief Financial Officer and Secretary
	 	 	 
	 	Black Diamond, Inc.
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Chief Financial Officer, Secretary
	 	 	and Treasurer
	 	 	 
	 	Everest/Sapphire Acquisition, LLC
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Secretary and Treasurer
	 	 	 
	 	Gregory Mountain Products, LLC
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Treasurer
	 	 	 
	 	POC USA, LLC
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Secretary and Treasurer


 


AMENDED AND RESTATED SUBORDINATION AGREEMENT


Schiller


Signature Pages


 




    	 



    	 



    

 


	 	BD European Holdings, LLC
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Secretary and Treasurer
	 	 	 
	 	Pieps Corporation
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Secretary and Treasurer
	 	 	 
	 	PIEPS Service, LLC
	 	 	 
	 	By:	/s/ Robert Peay
	 	Name:	Robert Peay
	 	Title:	Secretary and Treasurer


 


AMENDED AND RESTATED SUBORDINATION AGREEMENT


Schiller


Signature Pages