SECOND AMENDMENT OF REVOLVING CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT OF REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT OF REVOLVING CREDIT AGREEMENT (“Amendment”), dated effective as of May 26, 2011, is made and entered into by and among WHOLE FOODS MARKET, INC. (the “Company”), a Texas corporation, the lenders which are now or hereafter parties thereto (each, together with its successors and assigns, a “Lender” and collectively, the “Lenders”), and JPMORGAN CHASE BANK, N.A., a national banking association formerly known as JPMorgan Chase Bank, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “Agent”).
RECITALS:
WHEREAS, the Company, the Agent and the Lenders are parties to a Revolving Credit Agreement dated as of August 28, 2007, as previously amended pursuant to the terms of the that certain First Amendment of Revolving Credit Agreement dated as of June 2, 2008, by and among the Company, the Agent and the Lenders (hereinafter referred to as the “Credit Agreement”); and
WHEREAS, in connection with (a) the deletion of the Company’s requirement to use commercially reasonable efforts to maintain a corporate family (or equivalent) rating from Moody’s and (b) the corresponding changes to the Applicable Commitment Fee Percentage and Applicable Margin pricing grids, the Agent, the Lenders and the Company have agreed, on the terms and conditions herein set forth, that the Credit Agreement be further amended in certain respects.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties herein set forth, and for other good and valuable consideration, the receipt and sufficiency which are hereby acknowledged and confessed, the Company, the Agent and the Lenders do hereby agree as follows:
Section 1. General Definitions. Capitalized terms used herein which are defined in the Credit Agreement shall have the same meanings when used herein.
Section 2. Amendment of Applicable Commitment Fee Percentage and Applicable Margin Definitions. The definitions of in Section 1.1 of the Credit Agreement are hereby amended and restated in their entirety to hereafter be and read as follows:
“Applicable Commitment Fee Percentage” shall mean with respect to any Loan on any date of determination, the applicable rate per annum for the corresponding rating of the Company’s S&P corporate family rating, and determined in accordance with the following grid:
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| S&P |
| Percentage |
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| BB+ or higher |
| 0.25 | % |
| BB |
| 0.275 | % |
| BB- |
| 0.325 | % |
| Otherwise |
| 0.375 | % |
To the extent that S&P at any time fails to maintains a corporate family (or equivalent) rating of the Company, the Applicable Commitment Fee Percentage shall be based on the “Otherwise” category in the above pricing grid unless and until S&P thereafter reinstitutes its corporate family (or equivalent) rating of the Company.
“Applicable Margin” shall mean with respect to any Loan on any date of determination, the applicable rate per annum for the corresponding rating of the Company’s S&P corporate family rating, and determined in accordance with the following grid:
| S&P Rating |
| LIBOR Margin |
| ABR Margin |
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| BB+ or higher |
| 1.375 | % | 0.375 | % |
| BB |
| 1.50 | % | 0.50 | % |
| BB- |
| 1.625 | % | 0.625 | % |
| Otherwise |
| 1.875 | % | 0.875 | % |
To the extent that S&P at any time fails to maintains a corporate family (or equivalent) rating of the Company, the Applicable Margin shall be based on the “Otherwise” category in the above pricing grid unless and until S&P thereafter reinstitutes its corporate family (or equivalent) rating of the Company.
Section 3. Deletion of Obligation to Utilize Commercially Reasonable Effort to Maintain Moody’s Rating. Section 5.15 of the Credit Agreement is hereby amended and restated in its entirety to hereafter be and read as follows:
Section 5.15 Maintenance of S&P Rating. The Company shall use commercially reasonable efforts to maintain a corporate family (or equivalent) rating from S&P.
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Section 4. Representations and Warranties. The Company represents and warrants to the Agent and the Lenders that the representations and warranties contained in Section 4 of the Credit Agreement and in all of the other Loan Documents are true and correct in all material respects on and as of the effective date hereof as though made on and as of such effective date. The Company hereby certifies that no event has occurred and is continuing which constitutes a Default or an Event of Default under the Credit Agreement or which, upon the giving of notice or the lapse of time, or both, would constitute a Default or an Event of Default. Additionally, the Company hereby represents and warrants to the Agent and the Lenders that the resolutions or authorizations of the Board of Directors (or other governing parties) of the Company and its Subsidiaries which are set out in the following described Secretary’s Certificates or Authorizations remain in full force and effect as of the effective date hereof and have not been modified, amended, superseded or revoked:
(a) That certain Secretary’s Certificate dated on or about August 28, 2007, executed and delivered to the Agent by the Secretary of Whole Foods Market, Inc.; and
(b) Those certain Secretary’s Certificates dated on or after August 28, 2007, executed and delivered to the Agent by the Secretary or Assistant Secretary of each of the Subsidiaries of the Company which are set forth below in this Amendment and have executed a Joinder of Guarantor Subsidiaries.
Section 4. Limitations. The amendments set forth herein are limited precisely as written and shall not be deemed to (a) be a consent to, or waiver or modification of, any other term or condition of the Credit Agreement or any of the other Loan Documents, or (b) except as expressly set forth herein, prejudice any right or rights which the Lenders may now have or may have in the future under or in connection with the Credit Agreement, the Loan Documents or any of the other documents referred to therein. Except as expressly modified hereby or by express written amendments thereof, the terms and provisions of the Credit Agreement, the Notes and any other Loan Documents or any other documents or instruments executed in connection with any of the foregoing are and shall remain in full force and effect. In the event of a conflict between this Amendment and any of the foregoing documents, the terms of this Amendment shall be controlling.
Section 5. Payment of Expenses. The Company agrees, whether or not the transactions hereby contemplated shall be consummated, to reimburse and save the Agent and each of the Lenders harmless from and against liability for the payment of all reasonable substantiated out-of-pocket costs and expenses arising in connection with the preparation, execution, delivery, amendment, modification, waiver and enforcement of, or the preservation of any rights under this Amendment, including, without limitation, the reasonable fees and expenses of counsel for the Agent and other charges which may be payable in respect of, or in respect of any modification of, the Credit Agreement and the Loan Documents. The provisions of this Section shall survive the termination of the Credit Agreement and the repayment of the Loans.
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Section 6. Descriptive Headings, etc. The descriptive headings of the several Sections of this Amendment are inserted for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
Section 7. Entire Agreement. This Amendment and the documents referred to herein represent the entire understanding of the parties hereto regarding the subject matter hereof and supersede all prior and contemporaneous oral and written agreements of the parties hereto with respect to the subject matter hereof, including, without limitation, any commitment letters regarding the transactions contemplated by this Amendment.
Section 8. Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts and all of such counterparts shall together constitute one and the same instrument. Complete sets of counterparts shall be lodged with the Company and the Agent.
Section 9. References to Credit Agreement. As used in the Credit Agreement (including all Exhibits thereto) and all other Loan Documents, on and subsequent to the effective date hereof, the term “Agreement” shall mean the Credit Agreement, as amended by this Amendment.
Section 10. Jurisdiction; Governing Law; Etc.
(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Amendment or any of the other Loan Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the fullest extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Amendment shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Amendment or any of the other Loan Documents in the courts of any jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
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(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(d) EACH OF THE COMPANY, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR THE ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized offices as of the date first above written.
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| WHOLE FOODS MARKET, INC. | |
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| a Texas corporation, as Borrower | |
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| By: |
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| Glenda Flanagan |
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| Executive Vice President |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| JPMORGAN CHASE BANK, N.A., | |
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| as Agent and as a Lender | |
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| ROYAL BANK OF CANADA, | |
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| as a Lender | |
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| WELLS FARGO BANK, N.A, | |
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| as a Lender | |
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| BNP PARIBAS, | |
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| as a Lender | |
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SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| US BANK, N.A., | |
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| as a Lender | |
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| BANK OF AMERICA, N.A., | |
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| as a Lender | |
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| COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, | |
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| as a Lender | |
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SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
JOINDER OF GUARANTOR SUBSIDIARIES
The undersigned Guarantors (a) acknowledge and consent to the execution of the foregoing Amendment, (b) confirm that the Guaranties and Security Agreements previously executed or joined in by each of the undersigned Guarantors apply and shall continue to apply to all Indebtedness evidenced by or arising pursuant to the Credit Agreement or any other Loan Documents, notwithstanding the execution and delivery of this Amendment by the Company, the Agent and each of the Lenders, and (c) acknowledge that without this consent and confirmation, the Banks and the Agent would not agree to the modifications of the Credit Agreement which are evidenced by the foregoing Amendment.
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| 186 THIRD STREET BROOKLYN NY, LLC, |
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| a Delaware limited liability company |
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| 190-220 THIRD STREET STORE BROOKLYN NY, LLC, a Delaware limited liability company |
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| ALTON ROAD MIAMI FL, LLC, |
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| a Delaware limited liability company |
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| DELK ROAD BRASELTON GA, LLC, |
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| a Delaware limited liability company |
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| FRANKLIN & SOMERSET PORTLAND ME, LLC, |
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| a Delaware limited liability company |
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| GBD PROPERTIES, INC., |
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| a Delaware corporation |
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| HYDRAULIC ROAD CHARLOTTESVILLE VA, LLC, |
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| a Delaware limited liability company |
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| LEDGE ROAD DARIEN CT, LLC, |
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| a Delaware limited liability company |
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| MAIN STREET ROYAL OAK MI, LLC, |
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| a Delaware limited liability company |
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| RAY ROAD CHANDLER AZ, LLC, |
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| a Delaware limited liability company |
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| SEA VIEW AVENUE CONCH KEY FL, LLC, |
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| a Delaware limited liability company |
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| SHARON ROAD CHARLOTTE NC, LLC, |
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| a Delaware limited liability company |
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| SPRINGFIELD AVENUE MILLBURN NJ, LLC, |
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| a Delaware limited liability company |
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| TUNNEL ROAD ASHEVILLE NC, LLC, |
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| a Delaware limited liability company |
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| VENTURA BOULEVARD SHERMAN OAKS CA, LLC, |
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| a Delaware limited liability company |
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| WAUGH DRIVE HOUSTON TX, LLC, |
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| a Delaware limited liability company |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| WFM GIFT CARD, LLC, | |
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| a Virginia limited liability company | |
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| WFM PRIVATE LABEL MANAGEMENT, INC., | |
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| a Delaware corporation | |
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| WFM PROPERTIES CHESHIRE, LLC, | |
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| a Delaware limited liability company | |
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| WFM PROPERTIES GLENDALE, LLC, | |
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| a Delaware limited liability company | |
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| WFM PROPERTIES MANAGEMENT, INC., | |
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| a Delaware corporation | |
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| WFM PROPERTIES SAN JOSE, LLC, | |
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| a Delaware limited liability company | |
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| WFM PROPERTIES SCOTTSDALE, LLC, | |
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| a Delaware limited liability company | |
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| WFM PURCHASING MANAGEMENT, INC., | |
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| a Delaware corporation | |
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| WFM SELECT FISH, INC., | |
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| a Delaware corporation | |
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| WHOLE FOODS MARKET FINANCE, INC., | |
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| a Delaware corporation | |
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| WHOLE FOODS MARKET PROCUREMENT, INC., | |
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| a Delaware corporation | |
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| WHOLE FOODS MARKET SERVICES, INC., | |
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| a Delaware corporation | |
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| By: |
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| Glenda Flanagan, President |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| ALLEGRO COFFEE COMPANY, | ||
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| a Colorado corporation | ||
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| THE SOURDOUGH, A EUROPEAN BAKERY, INC., | ||
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| a Texas corporation | ||
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| By: |
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| Glenda Flanagan, Vice President | |
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| 2118 ABRAMS ROAD, L.P., | ||
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| a Texas limited partnership | ||
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| 601 NORTH LAMAR AND SIXTH STREET, L.P., | ||
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| a Texas limited partnership | ||
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| LAKE POINTE VILLAGE SUGAR LAND, L.P., | ||
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| a Texas limited partnership | ||
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| MOPAC AND BRAKER, L.P., | ||
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| a Texas limited partnership | ||
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| PRESTON ROAD AND FOREST LANE, L.P., | ||
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| a Texas limited partnership | ||
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| WFM PROPERTIES, L.P., | ||
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| a Texas limited partnership | ||
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| By: | WFM Properties Management, Inc., a Delaware corporation, General Partner | |
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| By: |
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| Glenda Flanagan, President |
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| WFM PRIVATE LABEL, L.P., | ||
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| a Delaware limited partnership | ||
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| By: | WFM Private Label Management, Inc., a Delaware corporation, General Partner | |
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| By: |
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| Glenda Flanagan, President |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| WFM PURCHASING, L.P., | ||
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| a Delaware limited partnership | ||
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| By: | WFM Purchasing Management, Inc., a Delaware corporation, General Partner | |
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| By: |
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| Glenda Flanagan, President |
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| NATURE’S HEARTLAND, INC., | ||
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| a Massachusetts corporation | ||
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| WFM BEVERAGE CORP., | ||
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| a Texas corporation | ||
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| WFM BEVERAGE HOLDING COMPANY, | ||
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| a Texas corporation | ||
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| WFM IP MANAGEMENT, INC., | ||
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| a Delaware corporation | ||
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| WHOLE FOODS MARKET GROUP, INC., | ||
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| a Delaware corporation | ||
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| WHOLE FOODS MARKET ROCKY MOUNTAIN/ SOUTHWEST I, INC., a Delaware corporation | ||
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| By: |
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| Roberta Lang, President | |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| MRS. GOOCH’S NATURAL FOOD MARKETS, INC., | ||
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| a California corporation | ||
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| WFM HAWAII, LLC, | ||
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| a Hawaii limited liability company | ||
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| WFM INTERMEDIARY NEW ENGLAND ENERGY, LLC, a Delaware limited liability company | ||
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| WFM NORTHERN NEVADA, INC., | ||
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| a Delaware corporation | ||
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| WHOLE FOOD COMPANY, INC., | ||
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| a Louisiana corporation | ||
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| WHOLE FOODS MARKET CALIFORNIA, INC., | ||
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| a California corporation | ||
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| WHOLE FOODS MARKET PACIFIC NORTHWEST, INC., a Delaware corporation | ||
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| By: |
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| Roberta Lang, Vice President | |
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| WHOLE FOODS MARKET IP, L.P., | ||
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| a Delaware limited partnership | ||
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| By: | WFM IP Management, Inc., a Delaware corporation, General Partner | |
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| By: |
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| Roberta Lang, President |
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| WFM COBB PROPERTY INVESTMENTS, LLC, | ||
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| a Delaware limited liability company | ||
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| By: | WHOLE FOODS MARKET GROUP, INC., a Delaware corporation, sole Member | |
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| By: |
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| Roberta Lang, President |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| WHOLE FOODS MARKET ROCKY MOUNTAIN/ SOUTHWEST, L.P., a Texas corporation | ||
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| By: | WHOLE FOODS MARKET ROCKY MOUNTAIN/SOUTHWEST I, INC., a Delaware corporation, General Partner | |
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| By: |
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| Roberta Lang, President |
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| WHOLE FOODS MARKET DISTRIBUTION, INC., | ||
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| a Delaware corporation | ||
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| By: |
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| Roberta Lang, Vice President | |
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| WFM PROCUREMENT INVESTMENTS, INC., | ||
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| a Delaware corporation | ||
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| WFM PROPERTIES HOLDINGS, INC., | ||
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| a Delaware corporation | ||
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| WFM PROPERTIES INVESTMENTS, INC., | ||
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| a Delaware corporation | ||
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| By: |
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| Roberta Lang, Vice President | |
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| WFM IP INVESTMENTS, INC., | ||
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| a Delaware corporation | ||
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| WHOLE FOODS MARKET SOUTHWEST INVESTMENTS, INC., | ||
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| a Delaware corporation | ||
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| By: |
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| Roberta Lang, President | |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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| WFM SOUTHERN NEVADA, INC., | ||
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| a Delaware corporation | ||
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| By: |
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| Patrick Bradley, Vice President | |
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| WFM - WO, INC., a Delaware corporation | ||
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| By: |
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| Roberta Lang, President | |
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| WHOLE FOODS MARKET - WO, INC., | ||
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| a British Columbia corporation | ||
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| By: |
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| Roberta Lang, President | |
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| WFM STRATEGIC INVESTMENTS, INC., | ||
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| a Delaware corporation | ||
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| By: |
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| Roberta Lang, President | |
SIGNATURE PAGE(S) TO SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
