SEC Exhibit





Exhibit 10.1



Execution version


AMENDMENT NO. 2
TO
CREDIT AGREEMENT


THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this “Amendment”), dated as of May 2, 2016, is entered into by and among Whole Foods Market, Inc., as the Borrower, the Lenders party hereto and JPMorgan Chase Bank, N.A., as the Administrative Agent, Issuing Bank and Swingline Lender.  Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Credit Agreement referenced below.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to that certain Credit Agreement, dated as of November 2, 2015 (the “Existing Credit Agreement”, as amended by Amendment No. 1 to Credit Agreement, dated as of December 22, 2015 and as may be further amended, restated, supplemented or otherwise modified from time to time (including by this Amendment), the “Credit Agreement”);
WHEREAS, the Borrower has requested that the Required Lenders and the Administrative Agent agree to certain amendments to the Existing Credit Agreement; and
WHEREAS, the Lenders party hereto and the Administrative Agent have agreed to such amendments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1.    Amendments to Existing Credit Agreement.  Subject to the satisfaction of the conditions precedent set forth in Section 2 below, the parties hereto agree that the Existing Credit Agreement is hereby amended as follows:
Section 6.04(a)(iv) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(iv) any Subsidiary that is not a Loan Party may liquidate, dissolve, or merge with or into a Subsidiary that is not a Loan Party if the Borrower determines in good faith that such liquidation, dissolution or merger is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that if any such surviving Subsidiary becomes a Material Domestic Subsidiary as a result of any such merger, it shall comply with the provisions of Section 5.09; and”
Section 2.    Conditions of Effectiveness.  This Amendment shall become effective on the date hereof (the “Amendment No. 2 Effective Date”) upon the receipt by the Administrative Agent of counterparts to this Amendment duly executed by each of the Borrower, the Required Lenders and the Administrative Agent and with the consent and reaffirmation attached hereto duly executed by each of the Subsidiary Guarantors.
Section 3.    Representations and Warranties of the Borrower.  The Borrower hereby represents and warrants as follows:
(a)    This Amendment has been duly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding at law or in equity.


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ACTIVE 213989744v.5









(b)    Immediately after giving effect to this Amendment, the representations and warranties of the Borrower set forth in the Credit Agreement are true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects), on and as of the date hereof, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty is true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) on and as of such earlier date.
(c)    Immediately before and after giving effect to this Amendment, no Default or Event of Default shall exist.
Section 4.    Effect on Credit Agreement.
(a)    Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to such Agreement, as amended and modified hereby.
(b)    Except as specifically amended and modified above, the Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect, and are hereby ratified and confirmed.
(c)    The execution, delivery and effectiveness of this Amendment shall neither, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender, nor constitute a waiver of any provision of the Credit Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.
(d)    This Amendment shall be deemed to be a Loan Document.
Section 5.    GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 6.    Headings.  Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
Section 7.    Counterparts.  This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A facsimile or PDF copy of any signature hereto shall have the same effect as the original thereof.
[The remainder of this page is intentionally blank.]




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ACTIVE 213989744v.5












IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.


	
			
	 
	BORROWER:


WHOLE FOODS MARKET, INC., as the Borrower

	 
	 

	 
	 

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Executive Vice President and Chief Financial Officer








Signature Page to WFM Amendment No. 2





	
			
	 
	JPMORGAN CHASE BANK, N.A., as Administrative Agent, the Issuing Bank, the Swingline Lender and a Lender

	 
	 

	 
	 

	 
	By:
	/s/ Laura Woodward

	 
	 
	Name: Laura Woodward

	 
	 
	Title: Vice President








Signature Page to WFM Amendment No. 2





	
			
	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION
as a Lender

	 
	 

	 
	 

	 
	By:
	/s/ Susan L. Coulter

	 
	 
	Name: Susan L. Coulter

	 
	 
	Title: Senior Vice President








Signature Page to WFM Amendment No. 2





	
			
	 
	BANK OF AMERICA, N.A.
as a Lender

	 
	 

	 
	 

	 
	By:
	/s/ Kyle Atmore

	 
	 
	Name: Kyle Atmore

	 
	 
	Title: Assistant Vice President








Signature Page to WFM Amendment No. 2





	
			
	 
	MORGAN STANLEY BANK, N.A.
as a Lender

	 
	 

	 
	 

	 
	By:
	/s/ Lisa Vieira

	 
	 
	Name: Lisa Vieira

	 
	 
	Title: Authorized Signatory








Signature Page to WFM Amendment No. 2





	
			
	 
	ROYAL BANK OF CANADA
as a Lender

	 
	 

	 
	 

	 
	By:
	/s/ Tom Paton

	 
	 
	Name: Tom Paton

	 
	 
	Title: Director, National Client Group








Signature Page to WFM Amendment No. 2





	
			
	 
	U.S. BANK NATIONAL ASSOCIATION,
as a Lender

	 
	 

	 
	 

	 
	By:
	/s/ Mark D. Rodgers

	 
	 
	Name: Mark D. Rodgers

	 
	 
	Title: Vice President








Signature Page to WFM Amendment No. 2





	
			
	 
	GOLDMAN SACHS BANK USA
as a Lender

	 
	 

	 
	 

	 
	By:
	/s/ Jerry Li

	 
	 
	Name: JERRY LI

	 
	 
	Title: AUTHORIZED SIGNATORY










Signature Page to WFM Amendment No. 2










CONSENT AND REAFFIRMATION


Each of the undersigned hereby (i) acknowledges receipt of a copy of Amendment No. 2 to Credit Agreement (the “Amendment”); (ii) consents to the Borrower’s execution and delivery of the Amendment; (iii) agrees to be bound by the Amendment; and (iv) reaffirms that the Subsidiary Guaranty and the other Loan Documents to which it is a party shall continue to remain in full force and effect. 


SUBSIDIARY GUARANTORS:


	
			
	 
	WHOLE FOODS MARKET CALIFORNIA, INC., a California corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Assistant Secretary






	
			
	 
	WHOLE FOODS MARKET PACIFIC NORTHWEST, INC., a Delaware corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Assistant Secretary






	
			
	 
	MRS. GOOCH’S NATURAL FOOD MARKETS, INC., a California corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Assistant Secretary






	
				
	 
	WHOLE FOODS MARKET ROCKY MOUNTAIN/SOUTHWEST, L.P., a Texas limited partnership

	 
	 
	By:
	WHOLE FOODS MARKET ROCKY MOUNTAIN/SOUTHWEST I, INC. its general partner

	 
	 
	By:
	/s/ Glenda Flanagan

	 
	 
	 
	Name: Glenda Flanagan

	 
	 
	 
	Title: Assistant Secretary

















	
			
	 
	WHOLE FOODS MARKET GROUP, INC., a Delaware corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Assistant Secretary






	
			
	 
	WFM-WO, Inc., a Delaware corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Assistant Secretary






	
			
	 
	WHOLE FOODS MARKET SERVICES, INC., a Delaware corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Executive Vice President and Chief Financial Officer






	
			
	 
	WFM IP INVESTMENTS, INC., a Delaware corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Assistant Secretary






	
				
	 
	WHOLE FOODS MARKET IP, L.P., a Delaware limited partnership

	 
	 
	By:
	WFM IP MANAGEMENT, INC., its general partner

	 
	 
	By:
	/s/ Glenda Flanagan

	 
	 
	 
	Name: Glenda Flanagan

	 
	 
	 
	Title: Vice President, Secretary and Treasurer






	
			
	 
	WFM NORTHERN NEVADA, INC., a Delaware corporation

	 
	By:
	/s/ Glenda Flanagan

	 
	 
	Name: Glenda Flanagan

	 
	 
	Title: Assistant Secretary








Reaffirmation (WFM - Amendment No. 2)







	
			
	 
	WFM SOUTHERN NEVADA, INC., a Delaware corporation

	 
	By:
	/s/ Albert Percival

	 
	 
	Name: Albert Percival

	 
	 
	Title: Assistant Secretary






	
				
	 
	WFM HAWAII, LLC, a Hawaii limited liability company

	 
	 
	By:
	MRS. GOOCH'S NATURAL FOOD MARKETS, INC., its sole member

	 
	 
	By:
	/s/ Glenda Flanagan

	 
	 
	 
	Name: Glenda Flanagan

	 
	 
	 
	Title: Assistant Secretary






	
					
	 
	WFM KANSAS, LLC, a Kansas limited liability company

	 
	 
	By:
	WHOLE FOODS MARKET ROCKY MOUNTAIN/SOUTHWEST, L.P., its sole member

	 
	 
	 
	By:
	WHOLE FOODS MARKET ROCKY MOUNTAIN/SOUTHWEST I, INC., its general partner

	 
	 
	 
	By:
	/s/ Glenda Flanagan

	 
	 
	 
	 
	Name: Glenda Flanagan

	 
	 
	 
	 
	Title: Assistant Secretary






	
				
	 
	WFM NEBRASKA, LLC, a Delaware limited liability company

	 
	 
	By:
	WHOLE FOODS MARKET GROUP, INC., its sole member

	 
	 
	By:
	/s/ Glenda Flanagan

	 
	 
	 
	Name: Glenda Flanagan

	 
	 
	 
	Title: Assistant Secretary










Reaffirmation (WFM - Amendment No. 2)