Exhibit 10.37



 


JOINDER AGREEMENT


THIS JOINDER AGREEMENT (this "Agreement"), dated as of December 12,
2003, is executed by BANK OF AMERICA, N.A., a national banking association ("Additional
Lender"), in favor of the parties to the Credit Agreement referred to in Recital
A below.


 


RECITALS


A. Pursuant to a Second Amended and Restated Credit Agreement, dated as of February 26,
2003 (as amended, supplemented or otherwise modified in accordance with its terms from
time to time, the "Credit Agreement"), by and among (1) Wild Oats
Markets, Inc., a Delaware corporation (the "Borrower"), (2) each of
the financial institutions currently listed in Schedule I to the Credit Agreement
(collectively, the "Lenders"), and (3) Wells Fargo Bank, National
Association, a national banking association, as L/C Issuer, Swing Line Lender and
administrative agent for the Lenders (in such capacity as administrative agent, the "Administrative
Agent"), the Lenders have agreed to extend certain credit facilities to the
Borrower upon the terms and subject to the conditions set forth therein.


B. Additional Lender will become a party to the Credit Agreement with certain rights
and obligations thereunder and under the other Credit Documents upon the terms and subject
to the conditions set forth in this Agreement.


NOW, THEREFORE, in consideration of the above recitals and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Additional
Lender hereby agrees as follows:


1. Definitions. Capitalized terms used but not defined in this Agreement shall
have the meanings set forth in the Credit Agreement.


2. Agreement to be Bound By Credit Agreement. Effective on the Effective Date
(as defined in Section 3 below), Additional Lender hereby (a) accepts and
assumes all rights and obligations under the Credit Documents of a Lender with the
Commitment set forth on Attachment 1 hereto, including the portion of
Revolving Loans and participations in the Letters of Credit outstanding on the Effective
Date and commitments to purchase participations in Letters of Credit that are attributable
to such Commitment (the "Assumed Rights and Obligations"),
(b) agrees to be bound by the Credit Agreement as it would have been if it had been
an original Lender party thereto, and (c) agrees to perform in accordance with their
terms all of the obligations which are required under the Credit Documents to be performed
by it as a Lender. Additional Lender appoints and authorizes Administrative Agent to take
such actions as agent on its behalf and to exercise such powers under the Credit Documents
as are delegated to Administrative Agent by the terms thereof, together with such powers
as are reasonably incidental thereto.


3. Effectiveness. Subject to receipt by Administrative Agent of the payments
described in Section 4, this Agreement shall become effective on December 12,
2003 (the "Effective Date").


4. Payments on Effective Date. In consideration of the Assumed Rights and
Obligations, the following payments shall be made on the Effective Date:



  
    (a) Additional Lender shall pay to Administrative Agent for distribution to each other
    Lender: (i) the principal amount of the Revolving Loans made by such other Lender
    pursuant to the Credit Agreement and outstanding on the Effective Date that are greater
    than such other Lender’s Proportionate Share of all Revolving Loans as determined on
    the Effective Date, and (ii) the amount of all L/C Credit Extensions for which such
    other Lender has reimbursed L/C Issuer that are outstanding on the Effective Date and are
    greater than such other Lender’s Proportionate Share of all L/C Credit Extensions as
    determined on the Effective Date; and

    (b) Borrower shall pay to Administrative Agent for distribution to Additional Lender a
    fee equal to 0.75% of the amount set forth on Attachment 1 hereto under the heading
    "Commitment".

  




5. Allocation and Payment of Interest and Fees. Administrative Agent shall pay
to Additional Lender all interest, commitment fees and other amounts that are paid by or
on behalf of Borrower pursuant to the Credit Documents and are attributable to the Assumed
Rights and Obligations, that accrue on and after the Effective Date.


6. Representations and Warranties. Additional Lender represents and warrants to
Administrative Agent and the other Lenders as follows:



  
    (a) It has full power and authority, and has taken all action necessary, to execute and
    deliver this Agreement and to fulfill its obligations under, and to consummate the
    transactions contemplated by, this Agreement.

    (b) The making and performance of this Agreement and all documents required to be
    executed and delivered by it hereunder do not and will not violate any law or regulation
    applicable to it.

    (c) This Agreement has been duly executed and delivered by it and constitutes its
    legal, valid and binding obligation, enforceable in accordance with its terms.

    (d) All approvals, authorizations or other actions by, or filings with, any
    Governmental Authority necessary for the validity or enforceability of its obligations
    under this Agreement have been made or obtained.

    (e) Additional Lender has made and shall continue to make its own independent
    investigation of the financial condition, affairs and creditworthiness of Borrower and any
    other Person obligated under the Credit Documents (collectively, "Credit Parties"),
    and the value of any collateral now or hereafter securing any of the obligations,
    indebtedness, liabilities or undertakings under the Credit Documents ("Collateral"),
    in connection with its assumption of the Assumed Rights and Obligations.

    (f) Additional Lender has received a copy of the Credit Documents and such other
    documents, financial statements and information as it has deemed appropriate to make its
    own credit analysis and decision to enter into this Agreement.

  




7. No Responsibility by Administrative Agent or Other Lenders. Neither
Administrative Agent nor any other Lender makes any representation or warranty or assumes
any responsibility to Additional Lender for:



  
    (a) the execution (by any party other than such party), effectiveness, genuineness,
    validity, enforceability, collectibility or sufficiency of the Credit Documents or for any
    representations, warranties, recitals or statements made in the Credit Documents or in any
    financial or other written or oral statement, instrument, report, certificate or any other
    document made or furnished or made available to Additional Lender by such party or by or
    on behalf of any Credit Party in connection with the Credit Documents and the transactions
    contemplated thereby;

    (b) the performance or observance of any of the terms, conditions, provisions,
    covenants or agreements contained in any of the Credit Documents or as to the existence or
    possible existence of any Default or Event of Default under the Credit Documents, but this
    shall not relieve Administrative Agent of any obligation under the Credit Agreement to
    deliver notice of such Default or Event of Default; or

    (c) the accuracy or completeness of any information provided to Additional Lender,
    whether by such party or by or on behalf of any Credit Party.

  




Neither Administrative Agent nor any other Lender shall have any initial or continuing
duty or responsibility to make any investigation of the financial condition, affairs or
creditworthiness of any of the Credit Parties, or the value of any Collateral, in
connection with Additional Lender’s assumption of the Assumed Rights and Obligations
or to provide Additional Lender with any credit or other information with respect thereto,
whether coming into its possession before the date hereof or at any time or times
thereafter, except as otherwise expressly provided in the Credit Agreement.


8. Foreign Withholding. On or before the Effective Date, Additional Lender shall
comply with the provisions of Subparagraph 2.12(b) of the Credit Agreement.


9. General.



  
    (a) This Agreement constitutes the entire understanding with respect to the subject
    matter hereof and supersedes all prior and current understandings and agreements, whether
    written or oral.

    (b) No term or provision of this Agreement may be amended, waived or terminated orally,
    but only by an instrument signed by Additional Lender, Borrower, Administrative Agent and
    L/C Issuer.

    (c) This Agreement may be executed in one or more counterparts. Each set of executed
    counterparts shall be an original. Executed counterparts may be delivered by facsimile
    transmission.

    (d) This Agreement shall be binding upon and inure to the benefit of Additional Lender
    and the other parties to the Credit Agreement and their respective successors and assigns.
    Additional Lender may not assign or transfer any of its rights or obligations under this
    Agreement without the prior written consent of Borrower, Administrative Agent, L/C Issuer
    and the Required Lenders. The preceding sentence shall not limit the right of Additional
    Lender to grant to others assignments of or participations in all or part of the Assumed
    Rights and Obligations to the extent permitted by the terms of the Credit Documents.

    (e) All payments by or to Additional Lender hereunder shall be made in United States
    Dollars, in immediately available funds. Payments by Additional Lender hereunder shall be
    made to Administrative Agent to the address or account specified in the Credit Agreement.
    Payments to Additional Lender shall be made to the address or account specified on Attachment
    1 to this Agreement. The address of Additional Lender for notice purposes under the
    Credit Agreement shall be as specified on Attachment 1 to this Agreement.

    (f) If any provision of this Agreement is held invalid, illegal or unenforceable, the
    remaining provisions hereof will not be affected or impaired in any way.

    (g) Additional Lender shall bear its own expenses in connection with the preparation
    and execution of this Agreement.

    (h) This Agreement shall be governed by and construed in accordance with the laws of
    the State of Colorado.

  




IN WITNESS WHEREOF, Additional Lender has executed this Agreement as of the date first
above written.


ADDITIONAL LENDER:   



  
    
      
        
          
            
              
                BANK OF AMERICA, N.A.

              

            

          

        

      

    

  





  
    
      
        
          
            
              
                By:  /s/ Michael R. Chryssikos

                Printed Name: Michael R. Chryssikos

                Title: Vice President

              

            

          

        

      

    

  




ACKNOWLEDGED AND AGREED:


BORROWER: 



  
    
      
        
          
            
              
                WILD OATS MARKETS, INC.

              

            

          

        

      

    

  





  
    
      
        
          
            
              
                By: /s/ Freya Brier

                Printed Name: Freya Brier

                Title: Vice President, Legal 

                ADMINISTRATIVE AGENT: WELLS FARGO BANK, NATIONAL 

                ASSOCIATION, as Administrative Agent

                By:  /s/ Marc Rosenberg

                Printed Name: Marc Rosenberg

                Title: Vice President

                L/C ISSUER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as L/C Issuer

                By: /s/ Marc Rosenberg

                Printed Name: Marc Rosenberg

                Title: Vice President

                SWING LINE LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Swing Line Lender

                By: /s/ Marc Rosenberg

                Printed Name: Marc Rosenberg

                Title: Vice President

                
              

            

          

        

      

    

  




 


ATTACHMENT 1 TO


 





JOINDER AGREEMENT


	Lender
	Commitment
	Proportionate Share

	Bank of America, N.A.	$20,000,000
	21.052631579%

	Applicable Lending Office and Address for
    Notices:		
	Credit Matters:Bank of America, N.A.

    700 Louisiana Street, 7th Floor

    Houston, TX 77002

    Attention: Mike Chryssikos

    Tel. No.: (713) 247-7153

    Fax No.: (713) 247-7748

    E-Mail: mike.chryssikos@bankofamerica.com

    Operations/Administration:

    Bank of America, N.A.

    700 Louisiana, 7th Floor

    Houston, TX 77002

    Attention: Patty Breiner

    Tel. No.: (713) 247-7552

    Fax No.: (713) 247-7748

    E-Mail: patty.breiner@bankofamerica.com

    Wiring Instructions:

    Bank of America, N.A.

    1201 Main Street

    Dallas, TX

    ABA Number: 111000025

    Account Name: Loan Operations

    Account Number: 0180019828

    Reference: Wild Oats Markets, Inc.