Third Amendment, dated 3/6/03 to Second amended and Restated credit Agreement




 Exhibit 10.7 
  
 THIRD AMENDMENT TO SECOND AMENDED AND 
 RESTATED CREDIT AGREEMENT 
  
 THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”), dated effective as of March 6, 2003, is made and entered into by and among WHOLE FOODS MARKET, INC. (the
“Company”), a Texas corporation, the banking institutions from time to time a party to the Credit Agreement (as hereinafter defined), as amended by this Amendment (each, together with its successors and assigns, a
“Bank” and collectively, the “Banks”), and JPMORGAN CHASE BANK, a New York banking corporation formerly known as The Chase Manhattan Bank, successor by merger to Chase Bank of Texas, National Association, as agent
for the Banks (in such capacity, together with its successors in such capacity, the “Agent”). 
  
 RECITALS: 
  
 WHEREAS, the Company, the Agent and certain Banks are parties to a Second Amended and Restated Credit Agreement dated as of February 7, 2000, as
previously amended by that certain First Amendment to Second Amended and Restated Credit Agreement dated as of March 1, 2001, executed by and among the Company, the Agent and the Banks and that certain Second Amendment to Second Amended and Restated
Credit Agreement dated as of June 10, 2002, executed by and among the Company, the Agent and the Banks (said Second Amended and Restated Credit Agreement, as previously amended, is hereinafter referred to as the “Credit Agreement”);
and 
  
 WHEREAS, in connection with an extension of the Maturity
Date under the Credit Agreement, the Company, the Agent and the Banks 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 Banks do hereby agree as follows: 
  
 Section 1. General Definitions. Except as expressly modified by
this Amendment, capitalized terms used herein which are defined in the Credit Agreement shall have the same meanings when used herein. 
  
 Section 2. Definition Amendments. The term “Commitment” and “Maturity Date” contained in Section 1 of the Credit
Agreement are hereby amended and restated in their entirety to hereafter be and read as follows: 
  
 Commitment shall mean, as to any Bank, the obligation of such Bank to make Loans and incur liability for the Letter of Credit
Exposure Amount in an aggregate principal amount at any one time outstanding up to, but not exceeding, the amount set forth as such Bank’s “Commitment” (as the same may be reduced from time to time 
  

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 pursuant to Section 2.2 hereof) opposite such Bank’s name on the signature pages of that
certain Third Amendment to Second Amended and Restated Credit Agreement dated as of March 6, 2003, by and among the Company, the Agent and the Banks. 
  
 Maturity Date shall mean the earlier of (a) October 1, 2004, (b) the date the Company terminates the Aggregate Commitment pursuant
to Section 2.2 hereof, and (c) the date specified by the Agent pursuant to Section 7.1 hereof. 
  
 Section 3. Increase of Letter of Credit Sublimit. As of the effective date of this Amendment, the $10,000,000 maximum amount of Letter of
Credit Exposure set forth in Section 2.4(a)(i) of the Credit Agreement is hereby increased to $30,000,000. 
  
 Section 4. Release of Guaranty Bank from Obligations as a Bank. Guaranty Bank has elected to no longer continue as a Bank under the Credit
Agreement from and after the effective date of this Amendment. As a result, (a) all Loans and other amounts, if any, owing to Guaranty Bank by the Company under the terms of the Credit Agreement have been fully paid and satisfied by the Company as
of the effective date of this Amendment, and (b) Guaranty Bank is hereby released from its obligations, and no longer has any rights, as a Bank under the Credit Agreement from and after the effective date of this Amendment. 
  
 Section 5. Representations and Warranties. The Company
represents and warrants to the Agent and the Banks 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 Banks 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 June 25, 1999, executed and delivered to the Agent by the Secretary of Whole Foods Market, Inc. in connection with the Credit Agreement; 
  
 (b) That certain Secretary’s Certificate dated June 25, 1999, executed and delivered to the Agent by
the Assistant Secretary of Mrs. Gooch’s Natural Foods Market, Inc., The Sourdough: A European Bakery, Inc., WFM Beverage Corp., Whole Food Company, Inc., Whole Foods Market California, Inc., Whole Foods Market Services, Inc., Whole Foods Market
Distribution, Inc., Whole Foods Market Southwest I, Inc., Allegro Coffee Company, Whole Foods Market Group, Inc., Nature’s Heartland, Inc. and Whole Foods Market Southwest Investments, Inc. in connection with the Credit Agreement; 

 
 (c) That certain Authorization dated June 28, 1999,
executed and delivered to the Agent by the Members of Whole Foods Market Brand 365, LLC, in connection with the Credit Agreement; 
  

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 (d) That certain Secretary’s Certificate dated February 19, 2001, executed and
delivered to the Agent by the Secretary of Whole Foods Market IP, Inc. in connection with the Credit Agreement; 
  
 (e) That certain Secretary’s Certificate dated February 19, 2001, executed and delivered to the Agent by the Secretary of Whole Foods
Market Finance, Inc. in connection with the Credit Agreement; 
  
 (f) That certain Secretary’s Certificate dated February 19, 2001, executed and delivered to the Agent by the Secretary of Whole Foods Market Purchasing, Inc. in connection with the Credit Agreement; and

  
 (g) Those certain Resolutions of the
Directors of Fresh Fields Markets Canada, Inc. dated February 23, 2001, executed and delivered to the Agent by the Directors of Fresh Fields Markets Canada, Inc. in connection with the Credit Agreement. 
  
 Section 6. 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 Banks 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 7. 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 Banks 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. 
  
 Section 8. 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 9. 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
10. 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 
  

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 and the same instrument. Complete sets of counterparts shall be lodged with the Company and the Agent. 
  
 Section 11. 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. 
  
 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. 
  
 NOTICE PURSUANT TO TEX. BUS. & COMM. CODE §26.02 
  
 THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF THE PARTIES BEFORE OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF TOGETHER CONSTITUTE A
WRITTEN CREDIT AGREEMENT AND REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. 
  

	 	 	 	 	 WHOLE FOODS MARKET, INC.
 a Texas corporation

					
	 	 	 	 	 	 	By:	 	 
	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 	 	 Glenda Flanagan
 Executive Vice President
and Chief Financial Officer

			
	 	 	 	 	 Addresses for Notices:

			
	 	 	 	 	 Whole Foods Market, Inc.
 601 N. Lamar Boulevard, Suite 300
 Austin, Texas 78703-5413
 Attention:
Ms. Glenda Flanagan

			
	 	 	 	 	JPMORGAN CHASE BANK, individually and as agent
	 Commitment:
	 	 	 	 	 	 
	$20,512,821.00	 	 	 	 By:
	 	 
	 	 	 	 	 	

	 	 	 	 	 	 	 Name:
	 	 
	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 Title:
	 	 
	 	 	 	 	 	 	 	

				
	 	 	 	 	 	 	Address for Notices:

  

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	 	 	 	 	 JPMorgan Chase Bank
 700
Lavaca, 2nd Floor
 Post Office Box 550
 Austin, Texas
78789
 Attention: Manager/Commercial Lending Group

			
	 	 	 	 	with copies to:
			
	 	 	 	 	 JPMorgan Chase Bank
 Loan and
Agency Services
 111 Fannin, 10th Floor
 Houston, Texas 77002
 Attention: Rese
Comley

			
	 	 	 	 	WELLS FARGO BANK TEXAS, NATIONAL ASSOCIATION
				
	 Commitment:
	 	 	 	 	 	 
	 $20,512,821.00
	 	 	 	By:	 	 
	 	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	

			
	 	 	 	 	 Address for Notices:
  
 Wells Fargo Bank Texas, National Association
 111 Congress, Suite
300
 Austin, Texas 78701
 Attention: Ms. Susan Coulter

 
 WACHOVIA BANK, NATIONAL ASSOCIATION (SUCCESSOR TO FIRST UNION NATIONAL
BANK)

	 Commitment:
	 	 	 	 	 	 
	 $17,948,718.00
	 	 	 	 	 	 
	 	 	 	 	By:	 	 
	 	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	

			
	 	 	 	 	 Address for Notices:
  
 Wachovia Bank, National Association
 1339 Chestnut Street, PA 48
 Philadelphia, Pennsylvania 19107
 Attention: Mr. Anthony
Braxton


  

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	 	 	 	 	and Ms. Irene Marks
			
	 	 	 	 	FLEET NATIONAL BANK
	 Commitment:
	 	 	 	 	 	 
	 $17,948,718.00
	 	 	 	 	 	 
	 	 	 	 	By:	 	 
	 	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	

			
	 	 	 	 	 Address for Notices:
  
 Fleet National Bank
 40 Broad Street
 MADE10510A
 Boston, MA 02109
 Attention: Ms. Judith C.E. Kelly

			
	 	 	 	 	 STANDARD FEDERAL BANK, N.A., FORMERLY LASALLE BANK NATIONAL ASSOCIATION

	 Commitment:
	 	 	 	 	 	 
	 $12,820,512.00
	 	 	 	 	 	 
	 	 	 	 	By:	 	 
	 	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	

			
	 	 	 	 	 Address for Notices:
 Standard
Federal Bank, N.A.
 125 Ottawa NW, Suite 270
 Grand Rapids,
Michigan 49503
 Attention: Mr. Thomas J. Ranville

			
	 	 	 	 	 US BANK, NATIONAL ASSOCIATION,
 FORMERLY FIRSTAR BANK, N.A.

	 Commitment:
	 	 	 	 	 	 
	 $10,256,410.00
	 	 	 	 	 	 
	 	 	 	 	By:	 	 
	 	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	


  

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	 Address for Notices:

	
	 US Bank

	 One Firstar Plaza, 12th Floor

	 St. Louis, Missouri 63101

	 Attention: Greg Dryden



  
 The undersigned
Guarantors (a) acknowledge and consent to the execution of the foregoing Amendment, (b) confirm that the Guaranties 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 Banks, 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. 
  
 WHOLE FOODS MARKET SERVICES, INC., 
 a Delaware corporation 
  
 WFM BEVERAGE CORP., a Texas corporation 
  
 WHOLE FOODS MARKET SOUTHWEST I, INC., 
 a Delaware corporation 
  
 WHOLE FOODS MARKET SOUTHWEST INVESTMENTS, INC., a Delaware corporation 
  
 WHOLE FOODS MARKET CALIFORNIA, INC., 
 a California corporation 
  
 MRS. GOOCH’S NATURAL FOOD MARKETS, INC., 
 a California corporation 
  
 WHOLE FOODS MARKET GROUP, INC., 
 a Delaware corporation 
  
 ALLEGRO COFFEE COMPANY, a Colorado corporation 
  
 WHOLE FOODS MARKET DISTRIBUTION, INC., 
 a Delaware corporation 
  
 WHOLE FOOD COMPANY, INC., a Louisiana corporation 
  
 THE SOURDOUGH: A EUROPEAN BAKERY, INC. 
 a Texas corporation 
  
 NATURE’S HEARTLAND, INC., 
 a Massachusetts corporation 
  

	 By:
	 	  


	 	 	Glenda Flanagan
	 	 	Secretary

  
 WHOLE FOODS MARKET BRAND 365, LLC,

  

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 a California limited liability company 

		
	 By:
	 	 Whole Foods Market Services, Inc.,
 a Delaware corporation, Member

			
	 	 	 By:
	 	  


	 	 	 	 	Glenda Flanagan, Secretary

  

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

		
	 By:
	 	 Whole Foods Market Southwest I, Inc.,
 a Delaware corporation

			
	 	 	 By:
	 	  


	 	 	 	 	Glenda Flanagan, Secretary

  

	 WHOLE FOODS MARKET IP, L.P.,
 a
Delaware corporation

		
	 By:
	 	 WFM IP Management, Inc.,
 a
Delaware corporation

			
	 	 	 By:
	 	  


	 	 	 	 	Glenda Flanagan, Secretary

  

	 WHOLE FOODS MARKET FINANCE, INC.,
 a Delaware corporation
 WHOLE FOODS MARKET PURCHASING, INC.,
 a Delaware corporation
 FRESH FIELDS MARKETS CANADA, INC.,
 a Canadian corporation

		
	 By:
	 	  


	 	 	 Glenda Flanagan
 President


  

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