UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): August 21, 2014

 

 

Vitamin Shoppe, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-34507   11-3664322

(State or Other Jurisdiction

of Incorporation or Organization)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

2101 91st Street

North Bergen, New Jersey 07047

(Addresses of Principal Executive Offices, including Zip Code)

(201) 868-5959

(Registrant’s Telephone Number, Including Area Code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


ITEM 1.01 Entry into Material Definitive Agreement.

Joinder Agreement and Guarantee

On August 21, 2014, VS Hercules LLC (“VS Hercules”), FDC Vitamins, LLC (“FDC Vitamins”) and Betancourt Sports Nutrition, LLC (“Betancourt” and, together with VS Hercules and FDC Vitamins, collectively, the “New Borrowers”), each an indirect wholly-owned subsidiary of Vitamin Shoppe, Inc. (the “Company”), executed a Joinder Agreement (the “Joinder”) to that certain Amended and Restated Loan Agreement, dated as of January 20, 2011 (as amended, modified, supplemented, extended, renewed, restated or replaced, the “Loan Agreement”), by and among the Company, as guarantor, and certain of its subsidiaries, Vitamin Shoppe Industries Inc. (“VS Industries”), VS Direct Inc. (“VS Direct”), Vitamin Shoppe Mariner, Inc. (“VS Mariner”) and Vitamin Shoppe Global, Inc. (“VS Global” and, together with VS Industries, VS Direct, VS Mariner and the New Borrowers, collectively, the “Borrowers”), and JPMorgan Chase Bank, N.A., in its capacity as agent (the “Agent”) for the lenders thereunder (the “Lenders”), and the Lenders, pursuant to which the New Borrowers became borrowers under the Loan Agreement, and the Company and the Borrowers entered into a Guarantee (the “Guarantee”) in favor of the Agent, guaranteeing the obligations of the other Borrowers under the Loan Agreement.

Stock Pledge Agreements

Also on August 21, 2014, each of VS Global, VS Hercules and FDC Vitamins entered into separate Stock Pledge Agreements (the “Stock Pledge Agreements”) with the Agent. Pursuant to the Stock Pledge Agreements, each of VS Global, VS Hercules and FDC Vitamins pledged to the Agent (i) 100% of the issued and outstanding capital stock of each of its domestic subsidiaries, including FDC Vitamins and Betancourt, and (ii) 65% of all of its voting capital stock of each of its foreign subsidiaries, in each case subject to the terms in the applicable Stock Pledge Agreement and the other Loan Documents (as defined in the Loan Agreement).

The foregoing description does not purport to be complete and is qualified in its entirety by reference to the full text of (i) the Loan Agreement, which is incorporated herein by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K previously filed with the Securities and Exchange Commission (the “SEC”) on January 24, 2011, (ii) the First Amendment to the Loan Agreement, dated as of January 10, 2013, by and among VS Industries, VS Direct and VS Mariner, as borrowers, the Company, as guarantor, and JPMorgan Chase Bank, N.A., as agent for the lenders thereunder, the issuing bank and as a lender, which is incorporated herein by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K previously filed with the SEC on October 15, 2013, (iii) the Second Amendment to the Loan Agreement, dated as of October 11, 2013, by and among VS Industries, VS Direct, VS Mariner and VS Global, as borrowers, the Company, as guarantor, and JPMorgan Chase Bank, N.A., as agent for the lenders thereunder, the issuing bank and as a lender, which is incorporated herein by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K previously filed with the SEC on October 15, 2013, (iv) the Joinder, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated in this Item 1.01 by reference, (v) the Guarantee, which is attached as Exhibit 10.2 to this Current Report on Form 8-K and incorporated in this Item 1.01 by reference, and (vi) the Stock Pledge Agreements, which are attached as Exhibits 10.3, 10.4 and 10.5, respectively, to this Current Report on Form 8-K and incorporated in this Item 1.01 by reference.

ITEM 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

ITEM 9.01 Financial Statements and Exhibits

(d) Exhibits:

 

Exhibit

  

Description

10.1    Joinder Agreement, dated as of August 21, 2014, by and between VS Hercules LLC, FDC Vitamins, LLC, Betancourt Sports Nutrition, LLC, and JPMorgan Chase Bank, N.A.
10.2    Guarantee, dated as of August 21, 2014, by Vitamin Shoppe, Inc., Vitamin Shoppe Industries Inc., VS Direct Inc., Vitamin Shoppe Mariner, Inc., Vitamin Shoppe Global, Inc., VS Hercules LLC, FDC Vitamins, LLC and Betancourt Sports Nutrition, LLC, of the obligations of one another under the Amended and Restated Loan Agreement, as amended, by and among Vitamin Shoppe Industries Inc., VS Direct Inc. and Vitamin Shoppe Mariner, Inc., as Borrowers, Vitamin Shoppe, Inc., as Guarantor, and JPMorgan Chase Bank, N.A., as agent for the lenders thereunder, the issuing bank and as a lender.
10.3    Stock Pledge Agreement, dated as of August 21, 2014, by and between Vitamin Shoppe Global, Inc., as pledgor, and JPMorgan Chase Bank, N.A., as pledgee.
10.4    Stock Pledge Agreement, dated as of August 21, 2014, by and between VS Hercules LLC, as pledgor, and JPMorgan Chase Bank, N.A., as pledgee.
10.5    Stock Pledge Agreement, dated as of August 21, 2014, by and between FDC Vitamins, LLC, as pledgor, and JPMorgan Chase Bank, N.A., as pledgee.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

         

Vitamin Shoppe, Inc.

 

Date: August 27, 2014

     

By /s/ Jean Frydman

      Name: Jean Frydman
      Title: Senior Vice President, General Counsel and Corporate Secretary

 

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Exhibit 10.1

JOINDER AGREEMENT

THIS JOINDER AGREEMENT (this “ Agreement ”), dated as of August 21, 2014, is entered into among VS HERCULES LLC, Delaware limited liability company (“ VS Hercules ”), FDC VITAMINS, LLC, a Delaware limited liability company (“ FDC Vitamins ”), and BETANCOURT SPORTS NUTRITION, LLC, a Florida limited liability company (“ BSN ” and together with VS Hercules and FDC Vitamins, the “ New Subsidiaries ”), JPMORGAN CHASE BANK, N.A., in its capacity as Agent (“ Agent ”), under that certain Amended and Restated Loan and Security Agreement dated as of January 20, 2011, by and among VITAMIN SHOPPE INDUSTRIES INC., a New York corporation (“ Company ”), VS DIRECT INC., a Delaware corporation (“ VS Direct ”), VITAMIN SHOPPE MARINER, INC., a Delaware corporation (“ VS Mariner ”), VITAMIN SHOPPE GLOBAL, INC., a Delaware corporation (“ VS Global ”, and collectively with the Company, VS Direct and VS Mariner, the “ Borrowers ”, and each individually, a “ Borrower ”), the Guarantors party thereto, Agent and the financial institutions from time to time party thereto as “Lenders” (as the same may be amended, modified, extended, supplemented or restated from time to time, the “ Credit Agreement ”). All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement.

The New Subsidiaries and Agent, for the benefit of the Secured Parties, hereby agree as follows:

1. Each of the New Subsidiaries hereby acknowledges, agrees and confirms that, by its execution of this Agreement, such New Subsidiary will be deemed to be a “Borrower” for all purposes of the Credit Agreement and shall have all of the obligations of a Borrower thereunder as if such New Subsidiary executed the Credit Agreement. Each of the New Subsidiaries hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Credit Agreement applicable to a Borrower, including, without limitation, (a) all of the representations and warranties of the Borrowers and each Guarantor set forth in Section 8 of the Credit Agreement, and (b) all of the covenants set forth in Section 7 and Section 9 of the Credit Agreement. Without limiting the generality of the foregoing terms of this paragraph 1, each of the New Subsidiaries (i) is hereby made a party to the Credit Agreement and the other Financing Agreements as a Borrower thereunder with the same force and effect as if originally named therein as a Borrower and each of the New Subsidiaries hereby jointly and severally assumes and agrees to pay and perform all obligations of a Borrower under the Credit Agreement and each of the other Financing Agreements, (ii) hereby jointly and severally agrees to pay in full the Obligations as set forth in Section 2.7 of the Credit Agreement, and (iii) hereby expressly assumes all obligations and liabilities of a Borrower under the Credit Agreement and hereby assigns and transfers to Agent, and hereby grants to Agent pursuant to Section 5 of the Credit Agreement, for the ratable benefit of the Secured Parties, a security interest in the Collateral now owned or hereafter acquired by such New Subsidiary. Schedule 8.2, Schedule 8.4, Schedule 8.10, Schedule 8.11(a), Schedule 8.12, Schedule 8.15, Schedule 8.16 and Schedule 9.9 to the Credit Agreement are hereby replaced in their entirety with Annex A to this Agreement and Annex A to this Agreement shall be deemed to be attached as Schedule 8.2, Schedule 8.4, Schedule 8.10, Schedule 8.11(a), Schedule 8.12, Schedule 8.15, Schedule 8.16 and Schedule 9.9 to the Credit Agreement.


2. Each of the New Subsidiaries hereby represents and warrants that each of the representations and warranties contained in Section 8 of the Credit Agreement is true and correct in all material respects on and as the date hereof (after giving effect to this Agreement and the other documents executed in connection with this Agreement) as if made on and as of such date except to the extent that such representations and warranties are expressly made as of a particular date, in which case such representations and warranties were true and correct as of such date.

3. If required, the New Subsidiaries are, simultaneously with the execution of this Agreement, executing and delivering such Financing Agreements (and such other documents and instruments), including, without limitation, an executed Guarantee, as requested by Agent in accordance with the Credit Agreement.

4. The address of the New Subsidiaries for purposes of Section 13.3 of the Credit Agreement is as follows:

VS Hercules, LLC

FDC Vitamins, LLC

Betancourt Sports Nutrition, LLC

2101 91 st Street

North Bergen, New Jersey 070407

Attn: Chief Financial Officer (or with respect to notices of default only, General Counsel)

Telephone No:    (201) 624-3000
Telecopy No.    (201) 868-0727

5. Each of the New Subsidiaries hereby waives acceptance by Agent and the Secured Parties of the obligations of such New Subsidiary upon the execution of this Agreement by such New Subsidiary.

6. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or other electronic transmission shall be effective as originals.

7. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the New Subsidiaries have caused this Agreement to be duly executed by its respective authorized officer, and the Agent, for the benefit of the Secured Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written.

 

VS HERCULES LLC , a Delaware limited liability company
By:   Vitamin Shoppe Industries Inc., as its sole member
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   Chief Executive Officer
FDC VITAMINS, LLC , a Delaware limited liability company
By:  

/s/ Jean Frydman

Name:   Jean Frydman
Title:   Senior Vice President, Legal
BETANCOURT SPORTS NUTRITION, LLC , a Florida limited liability company
By:  

/s/ Jean Frydman

Name:   Jean Frydman
Title:   Senior Vice President, Legal

[S IGNATURE P AGE TO J OINDER A GREEMENT ]


Acknowledged and accepted:
JPMORGAN CHASE BANK, N.A. , as Agent
By:  

/s/ Nisha Gupta

Name:   Nisha Gupta
Title:   Authorized Officer

[S IGNATURE P AGE TO J OINDER A GREEMENT ]


ANNEX A

[See attached.]

Exhibit 10.2

GUARANTEE

August 21, 2014

JPMorgan Chase Bank, National Association, as Agent

277 Park Avenue, 22 nd Floor

New York, New York 10172

 

  Re: VS Hercules, LLC, FDC Vitamins, LLC and Betancourt Sports Nutrition, LLC

Ladies and Gentlemen:

Vitamin Shoppe Industries Inc., a New York corporation (“ Vitamin Shoppe ”), VS Direct Inc., a Delaware corporation (“ VS Direct ”), Vitamin Shoppe Mariner, Inc., a Delaware corporation (“ VS Mariner ”) Vitamin Shoppe Global, Inc., a Delaware corporation (“ VS Global ” and collectively with Vitamin Shoppe, VS Direct and VS Mariner, the “ Existing Borrowers ”), certain of their affiliates party thereto, JPMorgan Chase Bank, National Association, a national banking association, in its capacity as agent (in such capacity, “ Agent ”) for Secured Parties (as hereinafter defined), and the entities from time to time party to the Loan Agreement (as hereinafter defined) as lenders (each a “ Lender ” and collectively, “ Lenders ”) have entered into financing arrangements pursuant to which Agent and Lenders may make loans and advances and provide other financial accommodations to Vitamin Shoppe, VS Direct, VS Mariner, VS Global and their affiliates as set forth in that certain Amended and Restated Loan and Security Agreement, dated as of January 20, 2011, by and among Vitamin Shoppe, VS Direct, VS Mariner and VS Global, as borrowers, Agent and Lenders (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the “ Loan Agreement ”) and other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto. In connection with the Loan Agreement, Vitamin Shoppe, VS Direct, VS Mariner, VS Global and Vitamin Shoppe, Inc., a Delaware corporation formerly known as VS Holdings, Inc. (“ Parent ” and collectively with the Existing Borrowers, VS Hercules (as defined below), FDC Vitamins (as defined below) and Betancourt (as defined below), each individually a “ Guarantor ” and collectively, “ Guarantors ”; provided that (a) VS Hercules shall only be deemed a Guarantor with respect to the Guaranteed Obligations (as defined below) of the Existing Borrowers, Parent, FDC Vitamins and Betancourt, (b) FDC Vitamins shall only be deemed a Guarantor with respect to the Guaranteed Obligations of the Existing Borrowers, Parent, VS Hercules and Betancourt, (c) Betancourt shall only be deemed a Guarantor with respect to the Guaranteed Obligations with respect to the Guaranteed Obligations of the Existing Borrowers, Parent, VS Hercules and FDC Vitamins, and (d) the Existing Borrowers and Parent shall only be deemed a Guarantor with respect to the Guaranteed Obligations of VS Hercules, FDC Vitamins and Betancourt), have executed and delivered to Agent (i) that certain Guarantee dated September 25, 2009 (the “ Vitamin Shoppe Guarantee ”), pursuant to which Parent and VS Direct, as guarantors, guaranteed the obligations of Vitamin Shoppe, as a borrower, (ii) that certain Guarantee dated September 25, 2009 (the “ VS Direct Guarantee ”), pursuant to which Parent and Vitamin Shoppe, as guarantors, guaranteed the obligations of VS Direct, as a borrower, (iii) that certain Guarantee


dated January 10, 2013 (the “ VS Mariner Guarantee ”), pursuant to which Parent, Vitamin Shoppe and VS Direct, as guarantors, guaranteed the obligations of VS Mariner, as a borrower, and (iv) that certain Guarantee dated October 11, 2013 (the “ VS Global Guarantee ”), pursuant to which Parent, Vitamin Shoppe, VS Direct and VS Mariner, as guarantors, guaranteed the obligations of VS Global, as a borrower.

Vitamin Shoppe has formed a new subsidiary, VS Hercules LLC, a Delaware limited liability company (“ VS Hercules ”), and VS Hercules has acquired the Capital Stock of FDC Vitamins, LLC, a Delaware limited liability company (“ FDC Vitamins ”), which owns all of the Capital Stock of Betancourt Sports Nutrition, LLC, a Florida limited liability company (“ Betancourt ”, and together with the Existing Borrowers, VS Hercules and FDC Vitamins, each individually and collectively referred to herein as “ Borrower ”). The Loan Agreement requires that VS Hercules, FDC Vitamins and Betancourt each become a party to the Loan Agreement as a “Borrower” and on the date hereof, VS Hercules, FDC Vitamins and Betancourt have entered into that certain Joinder Agreement pursuant to which VS Hercules, FDC Vitamins and Betancourt will each be deemed to be a “Borrower” for all purposes of the Loan Agreement and shall have all of the obligations of a “Borrower” thereunder. Due to the close business and financial relationships between Borrower and Guarantors, in consideration of the benefits which will accrue to each Guarantor and as an inducement for and in consideration of Agent and Lenders making loans and advances and providing other financial accommodations to Borrower pursuant to the Loan Agreement and the other Financing Agreements, each Guarantor has agreed to deliver this Guarantee (this “ Guarantee ”) to guarantee the payment and performance of the Guaranteed Obligations (as hereinafter defined) on the terms set forth herein.

In consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby jointly and severally agrees in favor of Agent, Lenders and the other Secured Parties (as defined in the Loan Agreement) as follows:

1. Guarantee .

(a) Each Guarantor absolutely, unconditionally and irrevocably, jointly and severally with each other and any subsequent guarantors of the Guaranteed Obligations (as hereinafter defined), guarantees and agrees to be liable for the full payment and performance when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of the following (all of which are collectively referred to herein as the “ Guaranteed Obligations ”): (i) all of the Obligations (as defined in the Loan Agreement) and (ii) all costs and expenses (including, without limitation, reasonable attorneys’ fees and legal expenses) incurred by Agent or any Secured Party in connection with the preparation, execution, delivery, recording, administration, collection, liquidation, enforcement and defense of the Guaranteed Obligations or the rights of Agent or any Secured Party under this Guarantee, whether such expenses are incurred before, during or after the initial or any renewal term of the Loan Agreement and the other Financing Agreements or after the commencement of any case with respect to Borrower or any Guarantor under the United States Bankruptcy Code or any similar statute; provided, however, that each Guarantor shall only be liable under this Guarantee for the maximum amount of such liability that can be hereby incurred without rendering

 

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this Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount (such highest amount determined hereunder being the relevant Guarantor’s “ Maximum Liability ”). This Section with respect to the Maximum Liability of each Guarantor is intended solely to preserve the rights of the Lenders to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other person or entity shall have any right or claim under this Section with respect to such Maximum Liability, except to the extent necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of each Guarantor without impairing this Guarantee or affecting the rights and remedies of the Lenders hereunder, provided that, nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond its Maximum Liability.

(b) This Guarantee is a guarantee of payment and not of collection. Each Guarantor agrees that neither Agent nor any Secured Party need attempt to collect any Guaranteed Obligations from Borrower, any one Guarantor or any other Obligor (as hereinafter defined) (each an “ Obligated Party ”) or to realize upon any Collateral, but may require any one Guarantor to make immediate payment of all of the Guaranteed Obligations to Agent, for the benefit of the Lenders and the other Secured Parties, when due, whether by maturity, acceleration or otherwise, or at any time thereafter. Agent and Lenders may apply any amounts received in respect of the Guaranteed Obligations to any of the Guaranteed Obligations, in whole or in part (including reasonable attorneys’ fees and legal expenses incurred by Agent or any Secured Party with respect thereto or otherwise chargeable to Borrower or any Obligor) and in such order as Agent may elect.

(c) Payment by Guarantors shall be made in U.S. dollars to Agent at the office of Agent from time to time on demand as Guaranteed Obligations become due. Guarantors shall make all payments to Agent on the Guaranteed Obligations: (i) free and clear of, and without deduction or withholding for or on account of any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions, withholding, restrictions or conditions of any kind; (ii) notwithstanding any change in the corporate existence, structure or ownership of any Borrower or any other guarantor of or other person liable for any of the Guaranteed Obligations; and (iii) notwithstanding any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Obligated Party, or their assets or any resulting release or discharge of any obligation of any Obligated Party. One or more successive or concurrent actions may be brought hereon against any Guarantor either in the same action in which Borrower or any Obligor is sued or in separate actions. In the event any claim or action, or action on any judgment, based on this Guarantee is brought against any Guarantor, such Guarantor agrees not to deduct, set-off, or seek any counterclaim for or recoup any amounts which are or may be owed by Agent or any Secured Party to such Guarantor.

2. Waivers and Consents .

(a) Notice of acceptance of this Guarantee, the making of loans and advances and providing other financial accommodations to Borrower and presentment, demand,

 

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protest, notice of protest, notice of nonpayment or default and all other notices to which Borrower or any Guarantor are entitled is hereby waived by each Guarantor. Each Guarantor also waives notice of and hereby consents to (i) any amendment, modification, supplement, waiver, extension, renewal, or restatement of the Loan Agreement and any of the other Financing Agreements, including, without limitation, extensions of time of payment of or increase or decrease in the amount of any of the Guaranteed Obligations, the interest rate, fees, other charges, or any Collateral, and the guarantee made herein shall apply to the Loan Agreement and the other Financing Agreements and the Guaranteed Obligations as so amended, modified, supplemented, renewed, restated or extended, increased or decreased, (ii) the taking, exchange, surrender and releasing of Collateral or guaranties now or at any time held by or available to Agent or any Secured Party for the obligations of Borrower, any other Guarantor or any other party at any time liable on or in respect of the Guaranteed Obligations or who is the owner of any property which is security for the Guaranteed Obligations (individually, an “ Obligor ” and collectively, the “ Obligors ”), including without limitation the surrender or release by Agent of any one Guarantor hereunder, (iii) the exercise of, or refraining from the exercise of any rights against Borrower or any Obligor or any Collateral, (iv) the settlement, compromise or release of, or the waiver of any default with respect to, any of the Guaranteed Obligations and (v) any financing by Agent and/or any Lender of Borrower under Section 364 of the United States Bankruptcy Code or consent by Agent or any Lender to the use of cash collateral under Section 363 of the United States Bankruptcy Code. Each Guarantor agrees that the amount of the Guaranteed Obligations shall not be diminished and the liability of Guarantors hereunder shall not be otherwise impaired or affected-by any of the foregoing.

(b) No invalidity, irregularity or unenforceability of all or any part of the Guaranteed Obligations shall affect, impair or be a defense to this Guarantee, nor shall any other circumstance which might otherwise constitute a defense available to or legal or equitable discharge of Borrower in respect of any of the Guaranteed Obligations, or any Guarantor in respect of this Guarantee, affect, impair or be a defense to this Guarantee. Without limitation of the foregoing, the liability of Guarantors hereunder shall not be discharged or impaired in any respect by reason of any failure by Agent to perfect or continue perfection of any lien or security interest in any Collateral or any delay by Agent in perfecting any such lien or security interest. As to interest, fees and expenses, whether arising before or after the commencement of any case with respect to Borrower under the United States Bankruptcy Code or any similar statute, each Guarantor shall be liable therefor, even if Borrower’s liability for such amounts does not, or ceases to, exist by operation of law. Each Guarantor acknowledges that neither Agent nor any Secured Party has made any representations to any Guarantor with respect to Borrower, any Obligor or otherwise in connection with the execution and delivery by Guarantors of this Guarantee and such Guarantor is not in any respect relying upon Agent or any Secured Party or any statements by Agent or any Secured Party in connection with this Guarantee.

(c) Unless and until the payment and satisfaction in full of all of the Guaranteed Obligations in immediately available funds and the termination of the financing arrangements of Agent and Lenders with Borrower, to the fullest extent permitted by law, each Guarantor hereby irrevocably and unconditionally waives and

 

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relinquishes all statutory, contractual, common law, equitable and all other claims against Borrower, any Collateral for the Guaranteed Obligations or other assets of Borrower or any Obligor, for subrogation, reimbursement, exoneration, contribution, indemnification, setoff or other recourse in respect to sums paid or payable to Agent or any Lender by any Guarantor hereunder and such Guarantor hereby further irrevocably and unconditionally waives and relinquishes any and all other benefits which any Guarantor might otherwise directly or indirectly receive or be entitled to receive by reason of any amounts paid by or collected or due from Guarantors, Borrower or any Obligor upon the Guaranteed Obligations or realized from their property. The foregoing waiver of rights is made in favor of Agent and the Lenders only and shall not be deemed a waiver of such rights for the benefit of any other creditors of Borrower or any Obligor.

(d) Each Guarantor hereby irrevocably and unconditionally waives and relinquishes any right to revoke this Guarantee that such Guarantor may now have or hereafter acquire.

(e) Without limiting the generality of any other waiver or other provision set forth in this Guarantee, each Guarantor hereby irrevocably and unconditionally waives all rights and defenses arising out of an election of remedies by Agent, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a Guaranteed Obligation, has terminated such Guarantor’s rights of subrogation and reimbursement against Borrower.

(f) Without limiting the generality of any other waiver or other provision set forth in this Guarantee, each Guarantor hereby irrevocably and unconditionally waives and relinquishes, to the maximum extent such waiver or relinquishment is permitted by applicable law, all rights to interpose any claims, deductions, setoffs or counterclaims of any nature (other than compulsory counterclaims) in any action or proceeding with respect to this Guarantee, such Guarantor’s obligations hereunder, the Collateral or any matter arising from or related to the foregoing.

3. Subordination . Except as otherwise provided in the Loan Agreement, payment of all amounts now or hereafter owed to any Guarantor by Borrower or any Obligor is hereby subordinated in right of payment to the indefeasible payment in full to Agent, for itself and the benefit of the Lenders and the other Secured Parties, of the Guaranteed Obligations and all such amounts and any security and guaranties therefor are hereby assigned to Agent, for itself and the ratable benefit of the Lenders and the other Secured Parties, as security for the Guaranteed Obligations.

4. Acceleration . Notwithstanding anything to the contrary contained herein or any of the terms of any of the other Financing Agreements, the liability of Guarantors for the entirety of the Guaranteed Obligations shall mature and become immediately due and payable upon the acceleration of the Obligations.

5. Information . Each Guarantor assumes all responsibility for being and keeping itself informed of each Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and

 

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extent of the risks that each Guarantor assumes and incurs under this Guarantee, and agrees that neither Agent, the Issuing Bank nor any Lender shall have any duty to advise any Guarantor of information known to it regarding those circumstances or risks.

6. Termination . This Guarantee is continuing, unlimited, absolute and unconditional. All Guaranteed Obligations shall be conclusively presumed to have been created in reliance on this Guarantee. This Guarantee may not be terminated and shall continue so long as either (a) the Loan Agreement shall be in effect (whether during its original term or any renewal, substitution or extension thereof) or (b) any Guaranteed Obligations shall be outstanding.

7. Reinstatement . If any payment of any Guaranteed Obligations is invalidated, declared to be fraudulent or preferential, set aside, rescinded, or if after receipt of any payment of, or proceeds of Collateral applied to the payment of, any of the Guaranteed Obligations, Agent or any Secured Party is required to surrender, return or otherwise restore such payment or proceeds to any Person for any reason, then the Guaranteed Obligations intended to be satisfied by such payment or proceeds shall be reinstated and continue and this Guarantee shall continue in full force and effect as if such payment or proceeds had not been received by Agent or such Secured Party. Each Guarantor shall be liable to pay to Agent and the Secured Parties, and shall indemnify and hold Agent and the Secured Parties harmless for the amount of any payments or proceeds rescinded, invalidated, surrendered or returned. This Section 7 shall remain effective notwithstanding any contrary action which may be taken by Agent or any Secured Party in reliance upon such payment or proceeds. This Section 7 shall survive the termination of this Guarantee.

8. Contribution . In the event any Guarantor (a “ Paying Guarantor ”) shall make any payment or payments under this Guarantee or shall suffer any loss as a result of any realization upon any Collateral granted by it to secure its obligations under this Guarantee, each other Guarantor (each a “ Non-Paying Guarantor ”) shall contribute to such Paying Guarantor an amount equal to such Non-Paying Guarantor’s “Applicable Percentage” of such payment or payments made, or losses suffered, by such Paying Guarantor. For purposes of this Section 8, each Non-Paying Guarantor’s “ Applicable Percentage ” with respect to any such payment or loss by a Paying Guarantor shall be determined as of the date on which such payment or loss was made by reference to the ratio of (i) such Non-Paying Guarantor’s Maximum Liability as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder) or, if such Non-Paying Guarantor’s Maximum Liability has not been determined, the aggregate amount of all monies received by such Non-Paying Guarantor from Borrower after the date hereof (whether by loan, capital infusion or by other means) to (ii) the aggregate Maximum Liability of all Guarantors hereunder (including such Paying Guarantor) as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder), or to the extent that a Maximum Liability has not been determined for any Guarantor, the aggregate amount of all monies received by such Guarantors from Borrower after the date hereof (whether by loan, capital infusion or by other means). Nothing in this provision shall affect any Guarantor’s several liability for the entire amount of the Guaranteed Obligations (up to such Guarantor’s Maximum Liability). Each Guarantor covenants and agrees that its right to receive any contribution under this Guarantee from a Non-Paying Guarantor shall be subordinate and junior in right of payment to the payment in full in cash of the Guaranteed Obligations. This provision is for the benefit of Agent, the Issuing Bank, the Lenders and the Guarantors and may be enforced by any one, or more, or all of them in accordance with the terms hereof.

 

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9. Amendments and Waivers . Neither this Guarantee nor any provision hereof shall be amended, modified, waived or discharged orally or by course of conduct, but only by a written agreement signed by an authorized officer of Agent and otherwise in accordance with the terms of the Loan Agreement, and as to any amendments, as also signed by an authorized officer of each Guarantor. Agent shall not by any act, delay, omission or otherwise be deemed to have expressly or impliedly waived any of its or any Secured Party’s rights, powers and/or remedies unless such waiver shall be in writing and signed by an authorized officer of Agent. Any such waiver-shall be enforceable only to the extent specifically set forth therein. A waiver by Agent of any right, power and/or remedy on any one occasion shall not be construed as a bar to or waiver of any such right, power and/or remedy which Agent or any Secured Party would otherwise have on any future occasion, whether similar in kind or otherwise.

10. Corporate Existence, Power and Authority . Each Guarantor is a corporation duly organized and in good standing under the laws of its jurisdiction of organization and is duly qualified as a foreign corporation and in good standing in all states or other jurisdictions where the nature and extent of the business transacted by it or the ownership of assets makes such qualification necessary, except for those jurisdictions in which the failure to so qualify would not have a Material Adverse Effect. The execution, delivery and performance of this Guarantee (a) are all within each Guarantor’s corporate, limited liability company or partnership powers, as applicable, (b) have been duly authorized, (c) are not in contravention of law or the terms of any Guarantor’s certificate of incorporation or formation, by laws, or other organizational documentation, or any indenture, agreement or undertaking to which such Guarantor is a party or by which such Guarantor or its property are bound and (d) will not result in the creation or imposition of, or require or give rise to any obligation to grant, any lien, security interest, charge or other encumbrance upon any property of any Guarantor, except, with respect to (c) and (d) above, where such contravention or result would not have a Material Adverse Effect. This Guarantee constitutes the legal, valid and binding obligation of each Guarantor enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or similar laws limiting creditors’ rights generally or by general equitable principles. Any one Guarantor signing this Guarantee shall be bound hereby whether or not any other Guarantor or any other person signs this Guarantee at any time.

11. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver .

(a) The validity, interpretation and enforcement of this Guarantee and any dispute arising out of the relationship between the parties hereto, whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.

(b) Guarantors, Agent and Lenders irrevocably consent and submit to the non-exclusive jurisdiction of the State of New York and the State and Federal courts located in the Borough of Manhattan, County of New York, State of New York and the United States District Court for the Southern District of New York whichever Agent may elect,

 

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and waive any objection based on venue or forum non conveniens with respect to any action instituted therein arising under this Guarantee or in any way connected with or related or incidental to the dealings of the parties hereto in respect of this Guarantee or the transactions related hereto, in each case whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise, and agree that any dispute with respect to any such matters shall be heard only in the courts described above (except that Agent and Lenders shall have the right to bring any action or proceeding against any Guarantor or its property in the courts of any other jurisdiction which Agent deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights against such Guarantor or its property).

(c) Each Guarantor hereby waives personal service of any and all process upon it and consents that all such service of process may be made by certified mail (return receipt requested) directed to its address set forth in the Loan Agreement and service so made shall be deemed to be completed five (5) days after the same shall have been so deposited in the U.S. mails, or, at Agent’s option, by service upon such Guarantor in any other manner provided under the rules of any such courts. Within thirty (30) days after such service, such Guarantor shall appear in answer to such process, failing which such Guarantor shall be deemed in default and judgment may be entered by Agent against such Guarantor for the amount of the claim and other relief requested.

(d) GUARANTORS, AGENT AND LENDERS EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS GUARANTEE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS GUARANTEE OR THE TRANSACTIONS RELATED HERETO WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. GUARANTORS, AGENT AND LENDERS EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY GUARANTOR, AGENT OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS GUARANTEE WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

(e) Agent and Secured Parties shall not have any liability to any Guarantor (whether in tort, contract, equity or otherwise) for losses suffered by such Guarantor in connection with, arising out of, or in any way related to the transactions or relationships contemplated by this Guarantee, or any act, omission or event occurring in connection herewith, unless it is determined by a final and non-appealable judgment or court order binding on Agent or such Secured Party that the losses were the result of acts or omissions constituting gross negligence or willful misconduct. In any such litigation, Agent and Secured Parties shall be entitled to the benefit of the rebuttable presumption that it acted in good faith and with the exercise of ordinary care in the performance by it of the terms of this Guarantee. Each Guarantor: (i) certifies that neither Agent, any Secured Party nor any representative, agent or attorney acting for or on behalf of Agent

 

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or any Secured Party has represented, expressly or otherwise, that Agent and Secured Parties would not, in the event of litigation, seek to enforce any of the waivers provided for in this Guarantee and (ii) acknowledges that in entering into this Guarantee, Agent and Secured Parties are relying upon, among other things, the waivers and certifications set forth in this Section and elsewhere herein.

12. Notices . All notices, requests and demands hereunder shall be given to the addresses designated in and in the manner prescribed by the Loan Agreement.

13. Partial Invalidity . If any provision of this Guarantee is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate this Guarantee as a whole, but this Guarantee shall be construed as though it did not contain the particular provision held to be invalid or unenforceable and the rights and obligations of the parties shall be construed and enforced only to such extent as shall be permitted by applicable law.

14. Entire Agreement . This Guarantee represents the entire agreement and understanding of the parties concerning the subject matter hereof, and supersedes all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written.

15. Successors and Assigns . This Guarantee shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of Agent, each Lender and the other Secured Parties and their respective successors, endorsees, transferees and assigns. The liquidation, dissolution or termination of any Guarantor shall not terminate this Guarantee as to such entity or as to such Guarantor.

16. Counterparts . This Guarantee may be executed by the parties hereto in several counterparts, each of which shall be deemed an original and all of which shall constitute together but one and the same agreement. Delivery of an executed counterpart of a signature page to this Guarantee by facsimile or any other electronic method of transmission shall be effective as delivery of a manually executed counterpart of this Guarantee. Any party delivering an executed counterpart of this Guarantee by facsimile or any other electronic method of transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Guarantee.

17. Interpretive Provisions .

(a) Capitalized terms used herein which are defined in the Loan Agreement shall have the meanings given therein unless otherwise defined in this Guarantee.

(b) Capitalized terms used herein which are defined in Article 1 or Article 9 of the Uniform Commercial Code as in effect in the State of New York on the date hereof shall have the meanings given therein unless otherwise defined in this Guarantee.

(c) All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires.

 

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(d) All references to Borrower, any Guarantor, any other Obligor, Agent, any Lender or any other Secured Party pursuant to the definitions set forth in the recitals hereto, or to any other person herein, shall include their respective successors and assigns (including, without limitation, any receiver, trustee or custodian for such person or any of its assets or such person in its capacity as debtor or debtor-in-possession under the United States Bankruptcy Code).

(e) The words “hereof”, “herein”, “hereunder”, “this Guarantee” and words of similar import when used in this Guarantee shall refer to this Guarantee as a whole and not any particular provision of this Guarantee and as this Guarantee now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

(f) The word “including” when used in this Guarantee shall mean “including, without limitation”.

(g) All references to the term “good faith” used herein when applicable to Agent or any Lender shall mean, notwithstanding anything to the contrary contained herein or in the UCC, honesty in fact in the conduct or transaction concerned. A Guarantor shall have the burden of proving any lack of good faith on the part of Agent or any Lender alleged by such Guarantor at any time.

(h) An Event of Default shall exist or continue or be continuing until such Event of Default is waived in accordance with Section 8 hereof or the Loan Agreement or is cured in a manner reasonably satisfactory to Agent, if such Event of Default is capable of being cured as determined by Agent.

(i) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including”.

(j) Unless otherwise expressly provided herein, (i) references herein to any agreement, document or instrument shall be deemed to include all subsequent amendments, modifications, supplements, extensions, renewals, restatements or replacements with respect thereto, but only to the extent the same are not prohibited by the terms hereof, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, recodifying, supplementing or interpreting the statute or regulation.

(k) The captions and headings of this Guarantee are for convenience of reference only and shall not affect the interpretation of this Guarantee.

(l) This Guarantee is the result of negotiations among and has been reviewed by counsel to Agent, counsel to each Lender and counsel to each Guarantor, and is the product of all parties. Accordingly, this Guarantee shall not be construed against Agent or any Lender merely because of their involvement in its preparation.

 

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18. Agreement to be Bound by Loan Agreement . Each Guarantor hereby agrees to be bound by and to comply with the terms of each provision of the Loan Agreement that references or purports to bind a “Guarantor” (as defined in the Loan Agreement).

19. Qualified ECP Counterparties . Each Qualified ECP Guarantor hereby guarantees the payment and performance of all Obligations of each of the other Guarantors and absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time to each of the other Guarantors in order for such Guarantor to honor its obligations under this Guarantee including obligations with respect to Hedge Obligations (provided, however, that each such Guarantor shall only be liable under this Section 19 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 19, or otherwise under this Guarantee or any other Financing Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each such Guarantor under this Section 19 shall remain in full force and effect until all Obligations are paid in full to the Lenders, Agent and all other Secured Parties, and all of the Lenders’ Revolving Commitments are terminated. The parties intend that this Section 19 constitute, and this Section 19 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, each Guarantor has executed and delivered this Guarantee as of the day and year first above written.

 

VITAMIN SHOPPE INDUSTRIES INC . , a New York corporation
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   Chief Executive Officer
VS DIRECT INC. , a Delaware corporation
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   Chief Executive Officer
VITAMIN SHOPPE, INC. , a Delaware corporation
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   Chief Executive Officer
VITAMIN SHOPPE MARINER, INC. , a Delaware corporation
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   President
VITAMIN SHOPPE GLOBAL, INC. , a Delaware corporation
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   President

 

[S IGNATURE P AGE TO VS H ERCULES LLC, FDC V ITAMINS , LLC

AND B ETANCOURT S PORTS N UTRITION , LLC G UARANTEE ]


VS HERCULES LLC , a Delaware limited liability company
By:   Vitamin Shoppe Industries Inc., as its sole member
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   Chief Executive Officer
FDC VITAMINS, LLC , a Delaware limited liability company
By:  

/s/ Jean Frydman

Name:   Jean Frydman
Title:   Senior Vice President, Legal
BETANCOURT SPORTS NUTRITION, LLC , a Florida limited liability company
By:  

/s/ Jean Frydman

Name:   Jean Frydman
Title:   Senior Vice President, Legal

 

[S IGNATURE P AGE TO VS H ERCULES LLC, FDC V ITAMINS , LLC

AND B ETANCOURT S PORTS N UTRITION , LLC G UARANTEE ]

Exhibit 10.3

STOCK PLEDGE AGREEMENT

THIS STOCK PLEDGE AGREEMENT (this “ Agreement ”), dated August 21, 2014, is entered into by and between VITAMIN SHOPPE GLOBAL, INC., a Delaware corporation (“ Pledgor ”), with offices at 2101 91st Street, North Bergen, New Jersey 07047, and JPMORGAN CHASE BANK, N.A., a national banking association, in its capacity as agent (in such capacity “ Pledgee ”) for the Lenders and the other Secured Parties. Any capitalized term not defined herein shall have the meaning assigned to such term in the Loan Agreement (as hereinafter defined).

WHEREAS, Pledgor is the owner of one hundred percent (l00%) of the issued and outstanding shares of Capital Stock of Vitamin Shoppe Asia Limited, a company incorporated in Hong Kong (the “ Company ”), and may from time to time in the future, subject to the terms and conditions set forth in the Financing Agreements (as hereinafter defined), acquire one or more additional Subsidiaries (“ Future Subsidiaries ”);

WHEREAS, Pledgee and the parties to the Loan Agreement as lenders (individually, each a “ Lender ” and collectively, “ Lenders ”) have entered or are contemporaneously entering into financing arrangements with Pledgor, Vitamin Shoppe Industries Inc., a New York Corporation (“ Vitamin Shoppe ”), VS Direct Inc., a Delaware corporation (“ VS Direct ”), Vitamin Shoppe Mariner, Inc., a Delaware corporation (“ VS Mariner ”), VS Hercules LLC, a Delaware limited liability company (“ VS Hercules ”), FDC Vitamins, LLC, a Delaware limited liability company (“ FDC Vitamins ”) and Betancourt Sports Nutrition, LLC, a Florida limited liability company, (“ Betancourt ”, and collectively with Pledgor, Vitamin Shoppe, VS Direct, VS Mariner, VS Hercules and FDC Vitamins, each individually a “ Borrower ” and collectively, “ Borrowers ”) pursuant to which Pledgee and Lenders may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Amended and Restated Loan and Security Agreement, dated as of January 20, 2011, by and among Borrowers, Vitamin Shoppe, Inc., a Delaware corporation formerly known as VS Holdings, Inc. (“ Parent ”), Pledgee and Lenders (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the “ Loan Agreement ”) and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto, including, but not limited to, the Guarantees (as defined below) and this Agreement (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the “ Financing Agreements ”);

WHEREAS, Pledgor, Parent and the other Borrowers have absolutely and unconditionally guaranteed the payment and performance of all now existing and hereafter arising obligations, liabilities and indebtedness of Parent and the Borrowers to Pledgee and Secured Parties as set forth in (i) that certain Guarantee dated September 25, 2009 (the “ Vitamin Shoppe Guarantee ”), pursuant to which Parent and VS Direct, as guarantors, guaranteed the obligations of Vitamin Shoppe, as a borrower, (ii) that certain Guarantee dated September 25, 2009 (the “ VS Direct Guarantee ”), pursuant to which Parent and Vitamin Shoppe, as guarantors, guaranteed the obligations of VS Direct, as a borrower, (iii) that certain Guarantee dated January 10, 2013 (the “ VS Mariner Guarantee ”), pursuant to which Parent, Vitamin Shoppe and VS Direct, as guarantors, guaranteed the obligations of VS Mariner, as a borrower, (iv) that certain


Guarantee dated October 11, 2013 (the “ VS Global Guarantee ”), pursuant to which Parent, Vitamin Shoppe, VS Direct and VS Mariner, as guarantors, guaranteed the obligations of VS Global, as a borrower, and (v) that certain Guarantee dated as of the date hereof (the “ New Guarantee ”), pursuant to which Parent, Vitamin Shoppe, VS Direct, VS Mariner, Pledgor, VS Hercules, FDC Vitamins and Betancourt, as guarantors, guaranteed the obligations of each of VS Hercules, FDC Vitamins and Betancourt, as applicable, as a borrower, (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, collectively, the “ Guarantees ”); and

WHEREAS, Pledgor desires to pledge to Pledgee, for its benefit and the ratable benefit of the Lenders and the other Secured Parties, a continuing security interest in 65% of all the Voting Stock of the Company, any and all of the Capital Stock of the Future Subsidiaries organized under the laws of any jurisdiction within the United States of America (“ Domestic Future Subsidiaries ”) and 65% of all the Voting Stock of all of the Future Subsidiaries organized under the laws of any jurisdiction outside of the United States of America (“ Foreign Future Subsidiaries ”), in each case as collateral security for the Obligations.

NOW, THEREFORE, in consideration of the foregoing facts the parties hereto agree as follows (initially capitalized terms used herein without definition shall have the meanings given in the Loan Agreement):

1. Pledge . Pledgor hereby delivers, pledges and grants a continuing security interest to Pledgee, for Pledgor’s benefit and the ratable benefit of the Lenders and the other Secured Parties, in 65% of all the Voting Stock of the Company, all of the Capital Stock of each Domestic Future Subsidiary and 65% of all the Voting Stock of each Foreign Future Subsidiary, whether now or hereafter owned or beneficially owned by Pledgor, together with all proceeds, replacements, substitutions, newly issued stock, stock received by reason of a stock split, bonus or any other form of issue, dividend or distribution with respect to or arising from such stock (collectively, the “ Collateral ”). Pledgor shall forthwith deliver to Pledgee the Collateral together with stock powers in form and substance reasonably satisfactory to Pledgee duly executed in blank, with signatures guaranteed, regarding the Collateral.

2. Obligations Secured . The pledge and security interest effectuated hereby shall secure the prompt performance and payment in full of any and all Obligations of Borrowers of every kind, nature and description owing to Pledgee or any Secured Party arising under or otherwise related to or permitted under the Guarantees, this Agreement, the Loan Agreement or the other Financing Agreements.

3. Representations And Warranties Regarding The Collateral . Pledgor represents and warrants that: (a) all of the shares of stock described in Paragraph 1 hereinabove are fully paid, non-assessable and validly issued; (b) the Collateral was not issued in violation of any person’s or entity’s preemptive rights; (c) the Collateral is owned free and clear of any and all security interests, pledges, options to purchase or sell, redemptions or liens; (d) Pledgor has full power to convey the Collateral; (e) no financing statements covering the Collateral are recorded with any cognizant state official or recording office (other than in favor of Pledgee, for itself and the ratable benefit of the Lenders and other Secured Parties); and (f) the Collateral is free and clear of any claims, security interests or liens other than those in favor of Pledgee.

 

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4. Events Of Default . For purposes herein, “ Event of Default ” shall mean any “Event of Default” as defined under the Loan Agreement. Pledgor hereby appoints Pledgee as its attorney-in-fact to arrange, upon the occurrence and during the continuance of an Event of Default, for a transfer of the Collateral on the books of the Company or any Future Subsidiary, as applicable, to the name of Pledgee or to the name of Pledgee’s nominee.

5. Voting Rights . During the term of this Agreement, so long as there shall not occur any Event of Default, Pledgor shall have the right to vote the Collateral on all corporate questions for all purposes not inconsistent with the terms of this Agreement. Upon the occurrence and during the continuance of an Event of Default, Pledgee shall thereafter have, at its discretion, the option to exercise all voting powers and other corporate rights pertaining to the Collateral. Pledgee may, upon the occurrence and during the continuance of an Event of Default, at its option, transfer or register the Collateral or any part thereof into its own or its nominee’s name.

6. Stock Adjustments And Dividends . If during the term of this Agreement, any stock dividend, reclassification, readjustment or other change is declared or made in the capital structure of the Company or any Future Subsidiary or any option included within the Collateral is exercised, or both, all new, substituted and additional shares, or other securities, issued to Pledgor by reason of any such change or exercise shall be delivered to and held by Pledgee under the terms of this Agreement in the same manner as the Collateral originally pledged hereunder. Except as expressly permitted under the terms of the Loan Agreement, if, during the term of this Agreement, any dividend or other distribution is made on account of the Collateral, Pledgor shall immediately deliver all such dividends or other distributions to Pledgee in the same form received and in the same manner as the Collateral pledged hereunder.

7. Warrants And Rights . If during the term of this Agreement, subscription warrants or any other rights or options shall be issued in connection with the Collateral, such warrants, rights and options shall be immediately assigned by Pledgor to Pledgee to be held under the terms of this Agreement in the same manner as the Collateral originally pledged hereunder.

8. Remedies Upon Default . In addition to the other remedies provided for herein, in the Loan Agreement, the Guarantees, the other Financing Agreements or otherwise available under applicable law, upon the occurrence and during the continuance of an Event of Default:

(a) Pledgee may:

(i) exercise in respect to the Collateral, any one or more of the rights and remedies available under the New York Uniform Commercial Code and other applicable law; and

(ii) sell or otherwise assign, give an option or options to purchase or dispose of and deliver the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange, broker’s board or at any of Pledgee’s offices or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash, on credit or for future delivery without assumption of any credit risk, free of any claim or right of whatsoever kind

 

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(including, after any such sale or assignment is consummated, any right or equity of redemption) of Pledgor, which claim, right and equity are hereby expressly waived and released. Pledgee or any Lender shall have the right to the extent permitted by applicable law, upon any such sale or sales, public or private, to purchase the whole or any part of the Collateral so sold; provided, however, Pledgor shall not receive any net proceeds, if any, of any such credit sale or future delivery until cash proceeds are actually received by Pledgee (which cash proceeds shall be applied by Pledgee to the Obligations) and after all Obligations have been paid in full. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Pledgee until the selling price is paid by the purchaser thereof, but Pledgee shall incur no liability in case of the failure of such purchaser to pay for the Collateral so sold and, in case of such failure, the Collateral may again be sold as herein provided.

(b) Any notice required to be given by Pledgee of a sale of the Collateral, or any part thereof, or of any other intended action by Pledgee, which occurs not less than ten (10) days prior to such proposed action, shall constitute commercially reasonable and fair notice to Pledgor thereof. If, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition has been signed by Pledgor, during the continuance of such Event of Default, no such notification need be given to Pledgor.

(c) Pledgee shall not be obligated to make any sale or other disposition of the Collateral, or any part thereof unless the terms thereof shall, in its sole discretion, be satisfactory to it. Pledgee may, if it deems it reasonable, postpone or adjourn the sale of any of the Collateral, or any part thereof, from time to time by an announcement at the time and place of such sale or by announcement at the time and place of such postponed or adjourned sale, without being required to give a new notice of sale. Pledgor agrees that Pledgee has no obligations to preserve rights against prior parties to the Collateral.

(d) Pledgor acknowledges and agrees that Pledgee may comply with limitations or restrictions in connection with any sale of the Collateral in order to avoid any violation of applicable law or in order to obtain any required approval of the sale or of the purchase thereof by any governmental regulatory authority or official and, without limiting the generality of the foregoing, Pledgor acknowledges and agrees that Pledgee may be unable to effect a public sale of any or all the Collateral by reason of certain prohibitions contained in the federal securities laws and applicable state securities laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale. Notwithstanding any such circumstances, Pledgor acknowledges and agrees that such compliance shall not result in any such private sale for such reason alone being deemed to have been made in a commercially unreasonable manner. Pledgee shall not be liable or accountable to Pledgor for any discount allowed by reason of the fact that the Collateral is sold in compliance with any such limitation or restriction. Pledgee shall not be under any obligation to delay a sale of any of the Collateral for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the federal securities laws, or under applicable state securities laws, even if the issuer desires, requests or would agree to do so.

 

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(e) Any cash held by Pledgee as Collateral and all cash proceeds received by Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of Pledgee, be held by Pledgee as Collateral for the Obligations and/or then or at any time thereafter applied, without any marshalling of rights, remedies or assets, and after payment of any amounts payable to Pledgee or any Lender hereunder and, after deducting all reasonable costs and expenses of every kind in connection with the care, safekeeping, collection, sale, delivery or otherwise of any or all of the Collateral or in any way relating to the rights of Pledgee hereunder (including reasonable attorneys’ fees and disbursements), to the payment of reduction of the Obligations. Any surplus of such cash or cash proceeds held by Pledgee and remaining after payment in full of all the Obligations shall be paid over to Pledgor or to whomsoever may be lawfully entitled to receive such surplus.

9. Cumulative Remedies . The rights and remedies provided herein are cumulative and not exclusive of any other rights or remedies provided by law or equity. The rights and remedies provided herein are intended to be in addition to and not in substitution of the rights and remedies provided by the Loan Agreement, the other Financing Agreements or any other agreement or instrument delivered in connection therewith.

10. Amendments and Waivers . This Agreement may not be modified, supplemented, or amended, or any of its provisions waived except in a writing signed by Pledgor and Pledgee.

11. Waiver of Rights . No course of dealing between the parties to this Agreement or any failure or delay on the part of any such party in exercising any rights or remedies hereunder shall operate as a waiver of any rights and remedies of such party or any other party, and no single or partial exercise of any rights or remedies by one party hereunder shall operate as a waiver or preclude the exercise of any other rights and remedies of such party or any other party. No waiver by Pledgee of any breach or default by Pledgor shall be deemed a waiver of any other previous breach or default or of any breach or default occurring thereafter.

12. Assignment . The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto; provided, however, that except as permitted by the Loan Agreement or the other Financing Agreements, no interest herein or in or to the Collateral may be assigned by Pledgor without the prior written consent of Pledgee; and, provided, further, that Pledgee may assign the rights and benefits hereof to any party acquiring any interest in the Obligations or any part thereof.

13. Release . At such time as Pledgor shall completely satisfy all of the Obligations, and the Financing Agreements have been terminated (other than indemnification and other contingent obligations not yet accrued at such time), other than upon enforcement of Pledgee’s remedies under the Loan Agreement or the other Financing Agreements after an Event of Default, Pledgee will, at Pledgor’s sole cost and expense, execute and deliver to Pledgor a release or other instrument as may be necessary or proper to release Pledgee’s lien in the Collateral and return to Pledgor all stock certificates and stock powers relating to this Agreement which are in its possession, subject to any dispositions thereof which may have been made by Pledgee pursuant hereto.

 

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14. Effect of this Agreement; Severability . The Financing Agreements (including without limitation this Agreement) and any instruments or documents delivered or to be delivered in connection herewith and therewith, represent the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto and thereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof and thereof, whether oral or written. This Agreement is a supplement to, and is hereby incorporated into, the Financing Agreements and made a part thereof. If any clause or provision of this Agreement shall be held invalid or unenforceable, in whole or in part, in any jurisdiction, such invalidity or unenforceability shall attach only to such clause or provision, or part thereof, in such jurisdiction, and shall not in any manner affect such or any other clause or provision in any other jurisdiction. Notwithstanding anything contained in this Agreement, in the event that any provisions of this Agreement are deemed to conflict or be inconsistent with the Loan Agreement, the provisions of the Loan Agreement shall govern. Capitalized terms not defined in this Agreement shall have the meanings ascribed to such terms in the Loan Agreement.

15. Notices . All notices, requests and demands to or upon Pledgor or Pledgee under this Agreement shall be given to the addresses designated in and in the manner prescribed by the Loan Agreement.

16. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver .

(a) The validity, interpretation and enforcement of this Agreement and any dispute arising out of the relationship between the parties hereto, whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.

(b) Pledgor and Pledgee irrevocably consent and submit to the non-exclusive jurisdiction of the State of New York and the State and Federal courts located in the Borough of Manhattan, County of New York, State of New York and the United States District Court for the Southern District of New York, whichever Pledgee may elect, and waive any objection based on venue or forum non conveniens with respect to any action instituted therein arising under this Agreement or in any way connected with or related or incidental to the dealings of the parties hereto in respect of this Agreement or the transactions related hereto whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise, and agree that any dispute with respect to any such matters shall be heard only in the courts described above (except that Pledgee shall have the right to bring any action or proceeding against Pledgor or the Collateral in the courts of any other jurisdiction which Pledgee deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights against Pledgor or the Collateral).

(c) Pledgor hereby waives personal service of any and all process upon it and consents that all such service of process may be made by certified mail (return receipt requested)

 

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directed to its address set forth in the Loan Agreement and service so made shall be deemed to be completed five (5) days after the same shall have been so deposited in the U.S. mails, or, at Pledgee’s option, by service upon Pledgor in any other manner provided under the rules of any such courts. Within thirty (30) days after such service, Pledgor shall appear in answer to such process, failing which Pledgor shall be deemed in default and judgment may be entered by Pledgee against Pledgor for the amount of the claim and other relief requested.

(d) PLEDGOR AND PLEDGEE EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. PLEDGOR AND PLEDGEE EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT PLEDGOR OR PLEDGEE MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

17. Further Assurances . Pledgor covenants and agrees that: (a) it will execute and deliver, or cause to be executed and delivered, all such other stock powers, proxies, instruments and documents as Pledgee may reasonably request from time to time in order to perfect and protect the security interests granted or purported to be granted hereunder (including without limitation the security interest granted in any Capital Stock of any Future Subsidiary) or otherwise to carry out the provisions and purposes hereof, and (b) it will take all such other action, as Pledgee may reasonably request from time to time in order to perfect and protect the security interests granted or purported to be granted hereunder (including without limitation the security interest granted in any Capital Stock of any Future Subsidiary) or otherwise to carry out the provisions and purposes hereof. For purposes of defining security interest perfection, Pledgor further agrees that any Collateral which is in transit to Pledgee shall be deemed to be in Pledgee’s possession. Pledgor warrants and represents that none of the Collateral constitutes margin securities for the purposes of Regulations T, U or X, and also warrants and represents that none of the proceeds of any loans made by Pledgee or the Lenders to Pledgor will be used to purchase or carry any margin stock.

18. Counterparts, etc. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic transmission shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by facsimile or other electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Agreement.

*        *        *

 

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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written.

 

PLEDGOR:
VITAMIN SHOPPE GLOBAL, INC., a Delaware corporation
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   President

 

[S IGNATURE P AGE TO S TOCK P LEDGE A GREEMENT

V ITAMIN S HOPPE G LOBAL , I NC .]


PLEDGEE:
JPMORGAN CHASE BANK, N.A., as Agent
By:  

/s/ Nisha Gupta

Name:   Nisha Gupta
Title:   Authorized Officer

 

[S IGNATURE P AGE TO S TOCK P LEDGE A GREEMENT

V ITAMIN S HOPPE G LOBAL , I NC .]


ACKNOWLEDGMENT AND CONSENT TO PLEDGE

August 21, 2014

By executing this Acknowledgement and Consent to Pledge (this “ Acknowledgment ”), VITAMIN SHOPPE ASIA LIMITED, a company incorporated in Hong Kong (the “ Company ”), hereby (a) acknowledges receipt of a copy of the foregoing Stock Pledge Agreement (the “ Pledge Agreement ”) pursuant to which VITAMIN SHOPPE GLOBAL, INC., a Delaware corporation (“ Pledgor ”), granted to JPMORGAN CHASE BANK, N.A., a national banking association, in its capacity as agent (in such capacity “ Pledgee ”) for the Lenders and the other Secured Parties, a first priority security interest in 65% of all the Voting Stock of the Company (the “ Collateral ”) to secure the Obligations, (b) acknowledges and confirms that the Collateral represents 65% of all the Voting Stock of in the Company, (c) agrees to enter a notation in the stock transfer register or other appropriate records of the Company reflecting the pledge of the Collateral pursuant to the Pledge Agreement, (d) consents to the pledge by Pledgor of the Collateral to secure the Obligations and consents to the transfer of the Collateral pursuant to the exercise of the remedies provided for in the Pledge Agreement (or any transfer in lieu thereof), (e) waives any breach or violation of the terms or provisions of the Company’s organizational documents caused by such pledge or transfer, (f) agrees that it will be bound by the terms of the Pledge Agreement relating to the Collateral issued by it and will comply with such terms insofar as such terms are applicable to it, (g) agrees that it will notify Pledgee promptly in writing upon the acquisition by Pledgor of any Capital Stock issued by the Company, which notice shall set forth in reasonable detail all information with respect to such Capital Stock, and (h) agrees to comply with any instruction received from Pledgee in writing with respect to the Collateral which states that (i) an Event of Default has occurred and is continuing and (ii) such instructions are being given in accordance with the terms of the Loan Agreement or the Pledge Agreement, as applicable, without any other or further instructions from Pledgor. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Pledge Agreement.

This Acknowledgement may be executed in counterparts, and all parties need not execute the same counterpart. This Acknowledgement shall be binding on, enforceable against and inure to the benefit of the Company, Pledgor, and Pledgee. Delivery of a counterpart of this Acknowledgment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

[Signature Page to Follow]


IN WITNESS WHEREOF, the undersigned has executed this Acknowledgement as of the date first above written.

 

COMPANY :     VITAMIN SHOPPE ASIA LIMITED , a company incorporated in Hong Kong
    By:  

/s/ Anthony N. Truesdale

    Name:   Anthony N. Truesdale
    Title:   Director

 

[A CKNOWLEDGMENT P AGE TO S TOCK P LEDGE A GREEMENT

V ITAMIN S HOPPE G LOBAL , I NC .]

Exhibit 10.4

STOCK PLEDGE AGREEMENT

THIS STOCK PLEDGE AGREEMENT (this “ Agreement ”), dated August 21, 2014, is entered into by and between VS HERCULES LLC, a Delaware limited liability company (“ Pledgor ”), with offices at 2101 91st Street, North Bergen, New Jersey 07047], and JPMORGAN CHASE BANK, N.A., a national banking association, in its capacity as agent (in such capacity “ Pledgee ”) for the Lenders and the other Secured Parties. Any capitalized term not defined herein shall have the meaning assigned to such term in the Loan Agreement (as hereinafter defined).

WHEREAS, Pledgor is the owner of one hundred percent (l00%) of the issued and outstanding shares of Capital Stock of FDC Vitamins, LLC, a Delaware limited liability company (the “ Company ”), and may from time to time in the future, subject to the terms and conditions set forth in the Financing Agreements (as hereinafter defined), acquire one or more additional Subsidiaries (“ Future Subsidiaries ”);

WHEREAS, Pledgee and the parties to the Loan Agreement as lenders (individually, each a “ Lender ” and collectively, “ Lenders ”) have entered or are contemporaneously entering into financing arrangements with Pledgor, the Company, Vitamin Shoppe Industries Inc., a New York Corporation (“ Vitamin Shoppe ”), VS Direct Inc., a Delaware corporation (“ VS Direct ”), Vitamin Shoppe Mariner, Inc., a Delaware corporation (“ VS Mariner ”), Vitamin Shoppe Global, Inc., a Delaware corporation (“ VS Global ”), and Betancourt Sports Nutrition, LLC, a Florida limited liability company, (“ Betancourt ”, and collectively with Pledgor, Company, Vitamin Shoppe, VS Direct, VS Mariner and VS Global, each individually a “ Borrower ” and collectively, “ Borrowers ”) pursuant to which Pledgee and Lenders may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Amended and Restated Loan and Security Agreement, dated as of January 20, 2011, by and among Borrowers, Vitamin Shoppe, Inc., a Delaware corporation formerly known as VS Holdings, Inc. (“ Parent ”), Pledgee and Lenders (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the “ Loan Agreement ”) and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto, including, but not limited to, the Guarantees (as defined below) and this Agreement (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the “ Financing Agreements ”);

WHEREAS, Pledgor, Parent and the other Borrowers have absolutely and unconditionally guaranteed the payment and performance of all now existing and hereafter arising obligations, liabilities and indebtedness of Parent and the Borrowers to Pledgee and Secured Parties as set forth in (i) that certain Guarantee dated September 25, 2009 (the “ Vitamin Shoppe Guarantee ”), pursuant to which Parent and VS Direct, as guarantors, guaranteed the obligations of Vitamin Shoppe, as a borrower, (ii) that certain Guarantee dated September 25, 2009 (the “ VS Direct Guarantee ”), pursuant to which Parent and Vitamin Shoppe, as guarantors, guaranteed the obligations of VS Direct, as a borrower, (iii) that certain Guarantee dated January 10, 2013 (the “ VS Mariner Guarantee ”), pursuant to which Parent, Vitamin Shoppe and VS Direct, as guarantors, guaranteed the obligations of VS Mariner, as a borrower, (iv) that certain Guarantee dated October 11, 2013 (the “ VS Global Guarantee ”), pursuant to which Parent,


Vitamin Shoppe, VS Direct and VS Mariner, as guarantors, guaranteed the obligations of VS Global, as a borrower, and (v) that certain Guarantee dated as of the date hereof (the “ New Guarantee ”), pursuant to which Parent, Vitamin Shoppe, VS Direct, VS Mariner, VS Global, Pledgor, the Company and Betancourt, as guarantors, guaranteed the obligations of each of Pledgor, the Company and Betancourt, as applicable, as a borrower, (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, collectively, the “ Guarantees ”); and

WHEREAS, Pledgor desires to pledge to Pledgee, for its benefit and the ratable benefit of the Lenders and the other Secured Parties, a continuing security interest in all of the Capital Stock of the Company, any and all of the Future Subsidiaries organized under the laws of any jurisdiction within the United States of America (“ Domestic Future Subsidiaries ”) and 65% of all the Voting Stock of all of the Future Subsidiaries organized under the laws of any jurisdiction outside of the United States of America (“ Foreign Future Subsidiaries ”), in each case as collateral security for the Obligations.

NOW, THEREFORE, in consideration of the foregoing facts the parties hereto agree as follows (initially capitalized terms used herein without definition shall have the meanings given in the Loan Agreement):

1. Pledge . Pledgor hereby delivers, pledges and grants a continuing security interest to Pledgee, for Pledgor’s benefit and the ratable benefit of the Lenders and the other Secured Parties, in all of the Capital Stock of the Company, all of the Capital Stock of each Domestic Future Subsidiary and 65% of the Voting Stock of each Foreign Future Subsidiary, whether now or hereafter owned or beneficially owned by Pledgor, together with all proceeds, replacements, substitutions, newly issued stock, stock received by reason of a stock split, bonus or any other form of issue, dividend or distribution with respect to or arising from such stock (collectively, the “ Collateral ”). Pledgor shall forthwith deliver to Pledgee the Collateral together with stock powers in form and substance reasonably satisfactory to Pledgee duly executed in blank, with signatures guaranteed, regarding the Collateral.

2. Obligations Secured . The pledge and security interest effectuated hereby shall secure the prompt performance and payment in full of any and all Obligations of Borrowers of every kind, nature and description owing to Pledgee or any Secured Party arising under or otherwise related to or permitted under the Guarantees, this Agreement, the Loan Agreement or the other Financing Agreements.

3. Representations And Warranties Regarding The Collateral . Pledgor represents and warrants that: (a) all of the shares of stock described in Paragraph 1 hereinabove are fully paid, non-assessable and validly issued; (b) the Collateral was not issued in violation of any person’s or entity’s preemptive rights; (c) the Collateral is owned free and clear of any and all security interests, pledges, options to purchase or sell, redemptions or liens; (d) Pledgor has full power to convey the Collateral; (e) no financing statements covering the Collateral are recorded with any cognizant state official or recording office (other than in favor of Pledgee, for itself and the ratable benefit of the Lenders and other Secured Parties); and (f) the Collateral is free and clear of any claims, security interests or liens other than those in favor of Pledgee.

 

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4. Events Of Default . For purposes herein, “ Event of Default ” shall mean any “Event of Default” as defined under the Loan Agreement. Pledgor hereby appoints Pledgee as its attorney-in-fact to arrange, upon the occurrence and during the continuance of an Event of Default, for a transfer of the Collateral on the books of the Company or any Future Subsidiary, as applicable, to the name of Pledgee or to the name of Pledgee’s nominee.

5. Voting Rights . During the term of this Agreement, so long as there shall not occur any Event of Default, Pledgor shall have the right to vote the Collateral on all corporate questions for all purposes not inconsistent with the terms of this Agreement. Upon the occurrence and during the continuance of an Event of Default, Pledgee shall thereafter have, at its discretion, the option to exercise all voting powers and other corporate rights pertaining to the Collateral. Pledgee may, upon the occurrence and during the continuance of an Event of Default, at its option, transfer or register the Collateral or any part thereof into its own or its nominee’s name.

6. Stock Adjustments And Dividends . If during the term of this Agreement, any stock dividend, reclassification, readjustment or other change is declared or made in the capital structure of the Company or any Future Subsidiary or any option included within the Collateral is exercised, or both, all new, substituted and additional shares, or other securities, issued to Pledgor by reason of any such change or exercise shall be delivered to and held by Pledgee under the terms of this Agreement in the same manner as the Collateral originally pledged hereunder. Except as expressly permitted under the terms of the Loan Agreement, if, during the term of this Agreement, any dividend or other distribution is made on account of the Collateral, Pledgor shall immediately deliver all such dividends or other distributions to Pledgee in the same form received and in the same manner as the Collateral pledged hereunder.

7. Warrants And Rights . If during the term of this Agreement, subscription warrants or any other rights or options shall be issued in connection with the Collateral, such warrants, rights and options shall be immediately assigned by Pledgor to Pledgee to be held under the terms of this Agreement in the same manner as the Collateral originally pledged hereunder.

8. Remedies Upon Default . In addition to the other remedies provided for herein, in the Loan Agreement, the Guarantees, the other Financing Agreements or otherwise available under applicable law, upon the occurrence and during the continuance of an Event of Default:

(a) Pledgee may:

(i) exercise in respect to the Collateral, any one or more of the rights and remedies available under the New York Uniform Commercial Code and other applicable law; and

(ii) sell or otherwise assign, give an option or options to purchase or dispose of and deliver the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange, broker’s board or at any of Pledgee’s offices or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash, on credit or for future delivery without assumption of any credit risk, free of any claim or right of whatsoever kind

 

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(including, after any such sale or assignment is consummated, any right or equity of redemption) of Pledgor, which claim, right and equity are hereby expressly waived and released. Pledgee or any Lender shall have the right to the extent permitted by applicable law, upon any such sale or sales, public or private, to purchase the whole or any part of the Collateral so sold; provided, however, Pledgor shall not receive any net proceeds, if any, of any such credit sale or future delivery until cash proceeds are actually received by Pledgee (which cash proceeds shall be applied by Pledgee to the Obligations) and after all Obligations have been paid in full. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Pledgee until the selling price is paid by the purchaser thereof, but Pledgee shall incur no liability in case of the failure of such purchaser to pay for the Collateral so sold and, in case of such failure, the Collateral may again be sold as herein provided.

(b) Any notice required to be given by Pledgee of a sale of the Collateral, or any part thereof, or of any other intended action by Pledgee, which occurs not less than ten (10) days prior to such proposed action, shall constitute commercially reasonable and fair notice to Pledgor thereof. If, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition has been signed by Pledgor, during the continuance of such Event of Default, no such notification need be given to Pledgor.

(c) Pledgee shall not be obligated to make any sale or other disposition of the Collateral, or any part thereof unless the terms thereof shall, in its sole discretion, be satisfactory to it. Pledgee may, if it deems it reasonable, postpone or adjourn the sale of any of the Collateral, or any part thereof, from time to time by an announcement at the time and place of such sale or by announcement at the time and place of such postponed or adjourned sale, without being required to give a new notice of sale. Pledgor agrees that Pledgee has no obligations to preserve rights against prior parties to the Collateral.

(d) Pledgor acknowledges and agrees that Pledgee may comply with limitations or restrictions in connection with any sale of the Collateral in order to avoid any violation of applicable law or in order to obtain any required approval of the sale or of the purchase thereof by any governmental regulatory authority or official and, without limiting the generality of the foregoing, Pledgor acknowledges and agrees that Pledgee may be unable to effect a public sale of any or all the Collateral by reason of certain prohibitions contained in the federal securities laws and applicable state securities laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale. Notwithstanding any such circumstances, Pledgor acknowledges and agrees that such compliance shall not result in any such private sale for such reason alone being deemed to have been made in a commercially unreasonable manner. Pledgee shall not be liable or accountable to Pledgor for any discount allowed by reason of the fact that the Collateral is sold in compliance with any such limitation or restriction. Pledgee shall not be under any obligation to delay a sale of any of the Collateral for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the federal securities laws, or under applicable state securities laws, even if the issuer desires, requests or would agree to do so.

 

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(e) Any cash held by Pledgee as Collateral and all cash proceeds received by Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of Pledgee, be held by Pledgee as Collateral for the Obligations and/or then or at any time thereafter applied, without any marshalling of rights, remedies or assets, and after payment of any amounts payable to Pledgee or any Lender hereunder and, after deducting all reasonable costs and expenses of every kind in connection with the care, safekeeping, collection, sale, delivery or otherwise of any or all of the Collateral or in any way relating to the rights of Pledgee hereunder (including reasonable attorneys’ fees and disbursements), to the payment of reduction of the Obligations. Any surplus of such cash or cash proceeds held by Pledgee and remaining after payment in full of all the Obligations shall be paid over to Pledgor or to whomsoever may be lawfully entitled to receive such surplus.

9. Cumulative Remedies . The rights and remedies provided herein are cumulative and not exclusive of any other rights or remedies provided by law or equity. The rights and remedies provided herein are intended to be in addition to and not in substitution of the rights and remedies provided by the Loan Agreement, the other Financing Agreements or any other agreement or instrument delivered in connection therewith.

10. Amendments and Waivers . This Agreement may not be modified, supplemented, or amended, or any of its provisions waived except in a writing signed by Pledgor and Pledgee.

11. Waiver of Rights . No course of dealing between the parties to this Agreement or any failure or delay on the part of any such party in exercising any rights or remedies hereunder shall operate as a waiver of any rights and remedies of such party or any other party, and no single or partial exercise of any rights or remedies by one party hereunder shall operate as a waiver or preclude the exercise of any other rights and remedies of such party or any other party. No waiver by Pledgee of any breach or default by Pledgor shall be deemed a waiver of any other previous breach or default or of any breach or default occurring thereafter.

12. Assignment . The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto; provided, however, that except as permitted by the Loan Agreement or the other Financing Agreements, no interest herein or in or to the Collateral may be assigned by Pledgor without the prior written consent of Pledgee; and, provided, further, that Pledgee may assign the rights and benefits hereof to any party acquiring any interest in the Obligations or any part thereof.

13. Release . At such time as Pledgor shall completely satisfy all of the Obligations, and the Financing Agreements have been terminated (other than indemnification and other contingent obligations not yet accrued at such time), other than upon enforcement of Pledgee’s remedies under the Loan Agreement or the other Financing Agreements after an Event of Default, Pledgee will, at Pledgor’s sole cost and expense, execute and deliver to Pledgor a release or other instrument as may be necessary or proper to release Pledgee’s lien in the Collateral and return to Pledgor all stock certificates and stock powers relating to this Agreement which are in its possession, subject to any dispositions thereof which may have been made by Pledgee pursuant hereto.

 

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14. Effect of this Agreement; Severability . The Financing Agreements (including without limitation this Agreement) and any instruments or documents delivered or to be delivered in connection herewith and therewith, represent the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto and thereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof and thereof, whether oral or written. This Agreement is a supplement to, and is hereby incorporated into, the Financing Agreements and made a part thereof. If any clause or provision of this Agreement shall be held invalid or unenforceable, in whole or in part, in any jurisdiction, such invalidity or unenforceability shall attach only to such clause or provision, or part thereof, in such jurisdiction, and shall not in any manner affect such or any other clause or provision in any other jurisdiction. Notwithstanding anything contained in this Agreement, in the event that any provisions of this Agreement are deemed to conflict or be inconsistent with the Loan Agreement, the provisions of the Loan Agreement shall govern. Capitalized terms not defined in this Agreement shall have the meanings ascribed to such terms in the Loan Agreement.

15. Notices . All notices, requests and demands to or upon Pledgor or Pledgee under this Agreement shall be given to the addresses designated in and in the manner prescribed by the Loan Agreement.

16. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver .

(a) The validity, interpretation and enforcement of this Agreement and any dispute arising out of the relationship between the parties hereto, whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.

(b) Pledgor and Pledgee irrevocably consent and submit to the non-exclusive jurisdiction of the State of New York and the State and Federal courts located in the Borough of Manhattan, County of New York, State of New York and the United States District Court for the Southern District of New York, whichever Pledgee may elect, and waive any objection based on venue or forum non conveniens with respect to any action instituted therein arising under this Agreement or in any way connected with or related or incidental to the dealings of the parties hereto in respect of this Agreement or the transactions related hereto whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise, and agree that any dispute with respect to any such matters shall be heard only in the courts described above (except that Pledgee shall have the right to bring any action or proceeding against Pledgor or the Collateral in the courts of any other jurisdiction which Pledgee deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights against Pledgor or the Collateral).

(c) Pledgor hereby waives personal service of any and all process upon it and consents that all such service of process may be made by certified mail (return receipt requested)

 

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directed to its address set forth in the Loan Agreement and service so made shall be deemed to be completed five (5) days after the same shall have been so deposited in the U.S. mails, or, at Pledgee’s option, by service upon Pledgor in any other manner provided under the rules of any such courts. Within thirty (30) days after such service, Pledgor shall appear in answer to such process, failing which Pledgor shall be deemed in default and judgment may be entered by Pledgee against Pledgor for the amount of the claim and other relief requested.

(d) PLEDGOR AND PLEDGEE EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. PLEDGOR AND PLEDGEE EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT PLEDGOR OR PLEDGEE MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

17. Further Assurances . Pledgor covenants and agrees that: (a) it will execute and deliver, or cause to be executed and delivered, all such other stock powers, proxies, instruments and documents as Pledgee may reasonably request from time to time in order to perfect and protect the security interests granted or purported to be granted hereunder (including without limitation the security interest granted in any Capital Stock of any Future Subsidiary) or otherwise to carry out the provisions and purposes hereof, and (b) it will take all such other action, as Pledgee may reasonably request from time to time in order to perfect and protect the security interests granted or purported to be granted hereunder (including without limitation the security interest granted in any Capital Stock of any Future Subsidiary) or otherwise to carry out the provisions and purposes hereof. For purposes of defining security interest perfection, Pledgor further agrees that any Collateral which is in transit to Pledgee shall be deemed to be in Pledgee’s possession. Pledgor warrants and represents that none of the Collateral constitutes margin securities for the purposes of Regulations T, U or X, and also warrants and represents that none of the proceeds of any loans made by Pledgee or the Lenders to Pledgor will be used to purchase or carry any margin stock.

18. Counterparts, etc. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic transmission shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by facsimile or other electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Agreement.

*        *        *

 

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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written.

 

PLEDGOR:
VS HERCULES LLC, a Delaware limited liability company
By:   Vitamin Shoppe Industries Inc., as its sole member
By:  

/s/ Anthony N. Truesdale

Name:   Anthony N. Truesdale
Title:   Chief Executive Officer

 

[S IGNATURE P AGE TO S TOCK P LEDGE A GREEMENT

VS H ERCULES LLC]


PLEDGEE:
JPMORGAN CHASE BANK, N.A., as Agent
By:  

/s/ Nisha Gupta

Name:   Nisha Gupta
Title:   Authorized Officer

 

[S IGNATURE P AGE TO S TOCK P LEDGE A GREEMENT

VS H ERCULES LLC]


ACKNOWLEDGMENT AND CONSENT TO PLEDGE

August 21, 2014

By executing this Acknowledgement and Consent to Pledge (this “ Acknowledgment ”), FDC VITAMINS, LLC, a Delaware limited liability company (the “ Company ”), hereby (a) acknowledges receipt of a copy of the foregoing Stock Pledge Agreement (the “ Pledge Agreement ”) pursuant to which VS HERCULES LLC, a Delaware limited liability company (“ Pledgor ”), granted to JPMORGAN CHASE BANK, N.A., a national banking association, in its capacity as agent (in such capacity “ Pledgee ”) for the Lenders and the other Secured Parties, a first priority security interest in 100% of the shares of Capital Stock of the Company (the “ Collateral ”) to secure the Obligations, (b) acknowledges and confirms that the Collateral represents all of Pledgor’s interest in the Company, (c) agrees to enter a notation in the stock transfer register or other appropriate records of the Company reflecting the pledge of the Collateral pursuant to the Pledge Agreement, (d) consents to the pledge by Pledgor of the Collateral to secure the Obligations and consents to the transfer of the Collateral pursuant to the exercise of the remedies provided for in the Pledge Agreement (or any transfer in lieu thereof), (e) waives any breach or violation of the terms or provisions of the Company’s organizational documents caused by such pledge or transfer, (f) agrees that it will be bound by the terms of the Pledge Agreement relating to the Collateral issued by it and will comply with such terms insofar as such terms are applicable to it, (g) agrees that it will notify Pledgee promptly in writing upon the acquisition by Pledgor of any Capital Stock issued by the Company, which notice shall set forth in reasonable detail all information with respect to such Capital Stock, and (h) agrees to comply with any instruction received from Pledgee in writing with respect to the Collateral which states that (i) an Event of Default has occurred and is continuing and (ii) such instructions are being given in accordance with the terms of the Loan Agreement or the Pledge Agreement, as applicable, without any other or further instructions from Pledgor. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Pledge Agreement.

This Acknowledgement may be executed in counterparts, and all parties need not execute the same counterpart. This Acknowledgement shall be binding on, enforceable against and inure to the benefit of the Company, Pledgor, and Pledgee. Delivery of a counterpart of this Acknowledgment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

[Signature Page to Follow]


IN WITNESS WHEREOF, the undersigned has executed this Acknowledgement as of the date first above written.

 

COMPANY :     FDC VITAMINS, LLC, a Delaware limited liability company
    By:  

/s/ Jean Frydman

    Name:   Jean Frydman
    Title:   Senior Vice President, Legal

[A CKNOWLEDGMENT P AGE TO S TOCK P LEDGE A GREEMENT

VS H ERCULES LLC]

Exhibit 10.5

STOCK PLEDGE AGREEMENT

THIS STOCK PLEDGE AGREEMENT (this “ Agreement ”), dated August 21, 2014, is entered into by and between FDC VITAMINS, LLC, a Delaware limited liability company (“ Pledgor ”), with offices at 2101 91st Street, North Bergen, New Jersey 07047, and JPMORGAN CHASE BANK, N.A., a national banking association, in its capacity as agent (in such capacity “ Pledgee ”) for the Lenders and the other Secured Parties. Any capitalized term not defined herein shall have the meaning assigned to such term in the Loan Agreement (as hereinafter defined).

WHEREAS, Pledgor is the owner of one hundred percent (l00%) of the issued and outstanding shares of Capital Stock of Betancourt Sports Nutrition, LLC, a Florida limited liability company (the “ Company ”), and may from time to time in the future, subject to the terms and conditions set forth in the Financing Agreements (as hereinafter defined), acquire one or more additional Subsidiaries (“ Future Subsidiaries ”);

WHEREAS, Pledgee and the parties to the Loan Agreement as lenders (individually, each a “ Lender ” and collectively, “ Lenders ”) have entered or are contemporaneously entering into financing arrangements with Pledgor, the Company, Vitamin Shoppe Industries Inc., a New York Corporation (“ Vitamin Shoppe ”), VS Direct Inc., a Delaware corporation (“ VS Direct ”), Vitamin Shoppe Mariner, Inc., a Delaware corporation (“ VS Mariner ”), Vitamin Shoppe Global, Inc., a Delaware corporation (“ VS Global ”), and VS Hercules, LLC, a Delaware limited liability company, (“ VS Hercules ”, and collectively with Pledgor, Company, Vitamin Shoppe, VS Direct, VS Mariner and VS Global, each individually a “ Borrower ” and collectively, “ Borrowers ”) pursuant to which Pledgee and Lenders may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Amended and Restated Loan and Security Agreement, dated as of January 20, 2011, by and among Borrowers, Vitamin Shoppe, Inc., a Delaware corporation formerly known as VS Holdings, Inc. (“ Parent ”), Pledgee and Lenders (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the “ Loan Agreement ”) and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto, including, but not limited to, the Guarantees (as defined below) and this Agreement (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the “ Financing Agreements ”);

WHEREAS, Pledgor, Parent and the other Borrowers have absolutely and unconditionally guaranteed the payment and performance of all now existing and hereafter arising obligations, liabilities and indebtedness of Parent and the Borrowers to Pledgee and Secured Parties as set forth in (i) that certain Guarantee dated September 25, 2009 (the “ Vitamin Shoppe Guarantee ”), pursuant to which Parent and VS Direct, as guarantors, guaranteed the obligations of Vitamin Shoppe, as a borrower, (ii) that certain Guarantee dated September 25, 2009 (the “ VS Direct Guarantee ”), pursuant to which Parent and Vitamin Shoppe, as guarantors, guaranteed the obligations of VS Direct, as a borrower, (iii) that certain Guarantee dated January 10, 2013 (the “ VS Mariner Guarantee ”), pursuant to which Parent, Vitamin Shoppe and VS Direct, as guarantors, guaranteed the obligations of VS Mariner, as a borrower, (iv) that certain Guarantee dated October 11, 2013 (the “ VS Global Guarantee ”), pursuant to which Parent,


Vitamin Shoppe, VS Direct and VS Mariner, as guarantors, guaranteed the obligations of VS Global, as a borrower, and (v) that certain Guarantee dated as of the date hereof (the “ New Guarantee ”), pursuant to which Parent, Vitamin Shoppe, VS Direct, VS Mariner, VS Global, Pledgor, the Company and VS Hercules, as guarantors, guaranteed the obligations of each of Pledgor, the Company and VS Hercules, as applicable, as a borrower, (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, collectively, the “ Guarantees ”); and

WHEREAS, Pledgor desires to pledge to Pledgee, for its benefit and the ratable benefit of the Lenders and the other Secured Parties, a continuing security interest in all of the Capital Stock of the Company, any and all of the Future Subsidiaries organized under the laws of any jurisdiction within the United States of America (“ Domestic Future Subsidiaries ”) and 65% of all the Voting Stock of all of the Future Subsidiaries organized under the laws of any jurisdiction outside of the United States of America (“ Foreign Future Subsidiaries ”), in each case as collateral security for the Obligations.

NOW, THEREFORE, in consideration of the foregoing facts the parties hereto agree as follows (initially capitalized terms used herein without definition shall have the meanings given in the Loan Agreement):

1. Pledge . Pledgor hereby delivers, pledges and grants a continuing security interest to Pledgee, for Pledgor’s benefit and the ratable benefit of the Lenders and the other Secured Parties, in all of the Capital Stock of the Company, all of the Capital Stock of each Domestic Future Subsidiary and 65% of the Voting Stock of each Foreign Future Subsidiary, whether now or hereafter owned or beneficially owned by Pledgor, together with all proceeds, replacements, substitutions, newly issued stock, stock received by reason of a stock split, bonus or any other form of issue, dividend or distribution with respect to or arising from such stock (collectively, the “ Collateral ”). Pledgor shall forthwith deliver to Pledgee the Collateral together with stock powers in form and substance reasonably satisfactory to Pledgee duly executed in blank, with signatures guaranteed, regarding the Collateral.

2. Obligations Secured . The pledge and security interest effectuated hereby shall secure the prompt performance and payment in full of any and all Obligations of Borrowers of every kind, nature and description owing to Pledgee or any Secured Party arising under or otherwise related to or permitted under the Guarantees, this Agreement, the Loan Agreement or the other Financing Agreements.

3. Representations And Warranties Regarding The Collateral . Pledgor represents and warrants that: (a) all of the shares of stock described in Paragraph 1 hereinabove are fully paid, non-assessable and validly issued; (b) the Collateral was not issued in violation of any person’s or entity’s preemptive rights; (c) the Collateral is owned free and clear of any and all security interests, pledges, options to purchase or sell, redemptions or liens; (d) Pledgor has full power to convey the Collateral; (e) no financing statements covering the Collateral are recorded with any cognizant state official or recording office (other than in favor of Pledgee, for itself and the ratable benefit of the Lenders and other Secured Parties); and (f) the Collateral is free and clear of any claims, security interests or liens other than those in favor of Pledgee.

 

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4. Events Of Default . For purposes herein, “ Event of Default ” shall mean any “Event of Default” as defined under the Loan Agreement. Pledgor hereby appoints Pledgee as its attorney-in-fact to arrange, upon the occurrence and during the continuance of an Event of Default, for a transfer of the Collateral on the books of the Company or any Future Subsidiary, as applicable, to the name of Pledgee or to the name of Pledgee’s nominee.

5. Voting Rights . During the term of this Agreement, so long as there shall not occur any Event of Default, Pledgor shall have the right to vote the Collateral on all corporate questions for all purposes not inconsistent with the terms of this Agreement. Upon the occurrence and during the continuance of an Event of Default, Pledgee shall thereafter have, at its discretion, the option to exercise all voting powers and other corporate rights pertaining to the Collateral. Pledgee may, upon the occurrence and during the continuance of an Event of Default, at its option, transfer or register the Collateral or any part thereof into its own or its nominee’s name.

6. Stock Adjustments And Dividends . If during the term of this Agreement, any stock dividend, reclassification, readjustment or other change is declared or made in the capital structure of the Company or any Future Subsidiary or any option included within the Collateral is exercised, or both, all new, substituted and additional shares, or other securities, issued to Pledgor by reason of any such change or exercise shall be delivered to and held by Pledgee under the terms of this Agreement in the same manner as the Collateral originally pledged hereunder. Except as expressly permitted under the terms of the Loan Agreement, if, during the term of this Agreement, any dividend or other distribution is made on account of the Collateral, Pledgor shall immediately deliver all such dividends or other distributions to Pledgee in the same form received and in the same manner as the Collateral pledged hereunder.

7. Warrants And Rights . If during the term of this Agreement, subscription warrants or any other rights or options shall be issued in connection with the Collateral, such warrants, rights and options shall be immediately assigned by Pledgor to Pledgee to be held under the terms of this Agreement in the same manner as the Collateral originally pledged hereunder.

8. Remedies Upon Default . In addition to the other remedies provided for herein, in the Loan Agreement, the Guarantees, the other Financing Agreements or otherwise available under applicable law, upon the occurrence and during the continuance of an Event of Default:

(a) Pledgee may:

(i) exercise in respect to the Collateral, any one or more of the rights and remedies available under the New York Uniform Commercial Code and other applicable law; and

(ii) sell or otherwise assign, give an option or options to purchase or dispose of and deliver the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange, broker’s board or at any of Pledgee’s offices or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash, on credit or for future delivery without assumption of any credit risk, free of any claim or right of whatsoever kind

 

3


(including, after any such sale or assignment is consummated, any right or equity of redemption) of Pledgor, which claim, right and equity are hereby expressly waived and released. Pledgee or any Lender shall have the right to the extent permitted by applicable law, upon any such sale or sales, public or private, to purchase the whole or any part of the Collateral so sold; provided, however, Pledgor shall not receive any net proceeds, if any, of any such credit sale or future delivery until cash proceeds are actually received by Pledgee (which cash proceeds shall be applied by Pledgee to the Obligations) and after all Obligations have been paid in full. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Pledgee until the selling price is paid by the purchaser thereof, but Pledgee shall incur no liability in case of the failure of such purchaser to pay for the Collateral so sold and, in case of such failure, the Collateral may again be sold as herein provided.

(b) Any notice required to be given by Pledgee of a sale of the Collateral, or any part thereof, or of any other intended action by Pledgee, which occurs not less than ten (10) days prior to such proposed action, shall constitute commercially reasonable and fair notice to Pledgor thereof. If, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition has been signed by Pledgor, during the continuance of such Event of Default, no such notification need be given to Pledgor.

(c) Pledgee shall not be obligated to make any sale or other disposition of the Collateral, or any part thereof unless the terms thereof shall, in its sole discretion, be satisfactory to it. Pledgee may, if it deems it reasonable, postpone or adjourn the sale of any of the Collateral, or any part thereof, from time to time by an announcement at the time and place of such sale or by announcement at the time and place of such postponed or adjourned sale, without being required to give a new notice of sale. Pledgor agrees that Pledgee has no obligations to preserve rights against prior parties to the Collateral.

(d) Pledgor acknowledges and agrees that Pledgee may comply with limitations or restrictions in connection with any sale of the Collateral in order to avoid any violation of applicable law or in order to obtain any required approval of the sale or of the purchase thereof by any governmental regulatory authority or official and, without limiting the generality of the foregoing, Pledgor acknowledges and agrees that Pledgee may be unable to effect a public sale of any or all the Collateral by reason of certain prohibitions contained in the federal securities laws and applicable state securities laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale. Notwithstanding any such circumstances, Pledgor acknowledges and agrees that such compliance shall not result in any such private sale for such reason alone being deemed to have been made in a commercially unreasonable manner. Pledgee shall not be liable or accountable to Pledgor for any discount allowed by reason of the fact that the Collateral is sold in compliance with any such limitation or restriction. Pledgee shall not be under any obligation to delay a sale of any of the Collateral for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the federal securities laws, or under applicable state securities laws, even if the issuer desires, requests or would agree to do so.

 

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(e) Any cash held by Pledgee as Collateral and all cash proceeds received by Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of Pledgee, be held by Pledgee as Collateral for the Obligations and/or then or at any time thereafter applied, without any marshalling of rights, remedies or assets, and after payment of any amounts payable to Pledgee or any Lender hereunder and, after deducting all reasonable costs and expenses of every kind in connection with the care, safekeeping, collection, sale, delivery or otherwise of any or all of the Collateral or in any way relating to the rights of Pledgee hereunder (including reasonable attorneys’ fees and disbursements), to the payment of reduction of the Obligations. Any surplus of such cash or cash proceeds held by Pledgee and remaining after payment in full of all the Obligations shall be paid over to Pledgor or to whomsoever may be lawfully entitled to receive such surplus.

9. Cumulative Remedies . The rights and remedies provided herein are cumulative and not exclusive of any other rights or remedies provided by law or equity. The rights and remedies provided herein are intended to be in addition to and not in substitution of the rights and remedies provided by the Loan Agreement, the other Financing Agreements or any other agreement or instrument delivered in connection therewith.

10. Amendments and Waivers . This Agreement may not be modified, supplemented, or amended, or any of its provisions waived except in a writing signed by Pledgor and Pledgee.

11. Waiver of Rights . No course of dealing between the parties to this Agreement or any failure or delay on the part of any such party in exercising any rights or remedies hereunder shall operate as a waiver of any rights and remedies of such party or any other party, and no single or partial exercise of any rights or remedies by one party hereunder shall operate as a waiver or preclude the exercise of any other rights and remedies of such party or any other party. No waiver by Pledgee of any breach or default by Pledgor shall be deemed a waiver of any other previous breach or default or of any breach or default occurring thereafter.

12. Assignment . The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto; provided, however, that except as permitted by the Loan Agreement or the other Financing Agreements, no interest herein or in or to the Collateral may be assigned by Pledgor without the prior written consent of Pledgee; and, provided, further, that Pledgee may assign the rights and benefits hereof to any party acquiring any interest in the Obligations or any part thereof.

13. Release . At such time as Pledgor shall completely satisfy all of the Obligations, and the Financing Agreements have been terminated (other than indemnification and other contingent obligations not yet accrued at such time), other than upon enforcement of Pledgee’s remedies under the Loan Agreement or the other Financing Agreements after an Event of Default, Pledgee will, at Pledgor’s sole cost and expense, execute and deliver to Pledgor a release or other instrument as may be necessary or proper to release Pledgee’s lien in the Collateral and return to Pledgor all stock certificates and stock powers relating to this Agreement which are in its possession, subject to any dispositions thereof which may have been made by Pledgee pursuant hereto.

 

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14. Effect of this Agreement; Severability . The Financing Agreements (including without limitation this Agreement) and any instruments or documents delivered or to be delivered in connection herewith and therewith, represent the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto and thereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof and thereof, whether oral or written. This Agreement is a supplement to, and is hereby incorporated into, the Financing Agreements and made a part thereof. If any clause or provision of this Agreement shall be held invalid or unenforceable, in whole or in part, in any jurisdiction, such invalidity or unenforceability shall attach only to such clause or provision, or part thereof, in such jurisdiction, and shall not in any manner affect such or any other clause or provision in any other jurisdiction. Notwithstanding anything contained in this Agreement, in the event that any provisions of this Agreement are deemed to conflict or be inconsistent with the Loan Agreement, the provisions of the Loan Agreement shall govern. Capitalized terms not defined in this Agreement shall have the meanings ascribed to such terms in the Loan Agreement.

15. Notices . All notices, requests and demands to or upon Pledgor or Pledgee under this Agreement shall be given to the addresses designated in and in the manner prescribed by the Loan Agreement.

16. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver .

(a) The validity, interpretation and enforcement of this Agreement and any dispute arising out of the relationship between the parties hereto, whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.

(b) Pledgor and Pledgee irrevocably consent and submit to the non-exclusive jurisdiction of the State of New York and the State and Federal courts located in the Borough of Manhattan, County of New York, State of New York and the United States District Court for the Southern District of New York, whichever Pledgee may elect, and waive any objection based on venue or forum non conveniens with respect to any action instituted therein arising under this Agreement or in any way connected with or related or incidental to the dealings of the parties hereto in respect of this Agreement or the transactions related hereto whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise, and agree that any dispute with respect to any such matters shall be heard only in the courts described above (except that Pledgee shall have the right to bring any action or proceeding against Pledgor or the Collateral in the courts of any other jurisdiction which Pledgee deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights against Pledgor or the Collateral).

(c) Pledgor hereby waives personal service of any and all process upon it and consents that all such service of process may be made by certified mail (return receipt requested)

 

6


directed to its address set forth in the Loan Agreement and service so made shall be deemed to be completed five (5) days after the same shall have been so deposited in the U.S. mails, or, at Pledgee’s option, by service upon Pledgor in any other manner provided under the rules of any such courts. Within thirty (30) days after such service, Pledgor shall appear in answer to such process, failing which Pledgor shall be deemed in default and judgment may be entered by Pledgee against Pledgor for the amount of the claim and other relief requested.

(d) PLEDGOR AND PLEDGEE EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. PLEDGOR AND PLEDGEE EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT PLEDGOR OR PLEDGEE MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

17. Further Assurances . Pledgor covenants and agrees that: (a) it will execute and deliver, or cause to be executed and delivered, all such other stock powers, proxies, instruments and documents as Pledgee may reasonably request from time to time in order to perfect and protect the security interests granted or purported to be granted hereunder (including without limitation the security interest granted in any Capital Stock of any Future Subsidiary) or otherwise to carry out the provisions and purposes hereof, and (b) it will take all such other action, as Pledgee may reasonably request from time to time in order to perfect and protect the security interests granted or purported to be granted hereunder (including without limitation the security interest granted in any Capital Stock of any Future Subsidiary) or otherwise to carry out the provisions and purposes hereof. For purposes of defining security interest perfection, Pledgor further agrees that any Collateral which is in transit to Pledgee shall be deemed to be in Pledgee’s possession. Pledgor warrants and represents that none of the Collateral constitutes margin securities for the purposes of Regulations T, U or X, and also warrants and represents that none of the proceeds of any loans made by Pledgee or the Lenders to Pledgor will be used to purchase or carry any margin stock.

18. Counterparts, etc. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic transmission shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by facsimile or other electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Agreement.

*        *        *

 

7


IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written.

 

PLEDGOR:
FDC VITAMINS, LLC, a Delaware limited liability company
By:  

/s/ Jean Frydman

Name:   Jean Frydman
Title:   Senior Vice President, Legal

[S IGNATURE P AGE TO S TOCK P LEDGE A GREEMENT

FDC V ITAMINS , LLC]


PLEDGEE:
JPMORGAN CHASE BANK, N.A., as Agent
By:  

/s/ Nisha Gupta

Name:   Nisha Gupta
Title:   Authorized Officer

[S IGNATURE P AGE TO S TOCK P LEDGE A GREEMENT

FDC V ITAMINS , LLC]


ACKNOWLEDGMENT AND CONSENT TO PLEDGE

August 21, 2014

By executing this Acknowledgement and Consent to Pledge (this “ Acknowledgment ”), BETANCOURT SPORTS NUTRITION, LLC, a Florida limited liability company (the “ Company ”), hereby (a) acknowledges receipt of a copy of the foregoing Stock Pledge Agreement (the “ Pledge Agreement ”) pursuant to which FDC VITAMINS, LLC, a Delaware limited liability company (“ Pledgor ”), granted to JPMORGAN CHASE BANK, N.A., a national banking association, in its capacity as agent (in such capacity “ Pledgee ”) for the Lenders and the other Secured Parties, a first priority security interest in 100% of the shares of Capital Stock of the Company (the “ Collateral ”) to secure the Obligations, (b) acknowledges and confirms that the Collateral represents all of Pledgor’s interest in the Company, (c) agrees to enter a notation in the stock transfer register or other appropriate records of the Company reflecting the pledge of the Collateral pursuant to the Pledge Agreement, (d) consents to the pledge by Pledgor of the Collateral to secure the Obligations and consents to the transfer of the Collateral pursuant to the exercise of the remedies provided for in the Pledge Agreement (or any transfer in lieu thereof), (e) waives any breach or violation of the terms or provisions of the Company’s organizational documents caused by such pledge or transfer, (f) agrees that it will be bound by the terms of the Pledge Agreement relating to the Collateral issued by it and will comply with such terms insofar as such terms are applicable to it, (g) agrees that it will notify Pledgee promptly in writing upon the acquisition by Pledgor of any Capital Stock issued by the Company, which notice shall set forth in reasonable detail all information with respect to such Capital Stock, and (h) agrees to comply with any instruction received from Pledgee in writing with respect to the Collateral which states that (i) an Event of Default has occurred and is continuing and (ii) such instructions are being given in accordance with the terms of the Loan Agreement or the Pledge Agreement, as applicable, without any other or further instructions from Pledgor. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Pledge Agreement.

This Acknowledgement may be executed in counterparts, and all parties need not execute the same counterpart. This Acknowledgement shall be binding on, enforceable against and inure to the benefit of the Company, Pledgor, and Pledgee. Delivery of a counterpart of this Acknowledgment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

[Signature Page to Follow]


IN WITNESS WHEREOF, the undersigned has executed this Acknowledgement as of the date first above written.

 

COMPANY :      BETANCOURT SPORTS NUTRITION, LLC , a Florida limited liability company
     By:  

/s/ Jean Frydman

     Name:   Jean Frydman
     Title:   Senior Vice President, Legal

[A CKNOWLEDGMENT P AGE TO S TOCK P LEDGE A GREEMENT

FDC V ITAMINS , LLC]