Exhibit 10.12
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT ("Fifth Amendment"), dated as
of December 19, 1997, 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 Fifth Amendment (each, together with its successors and assigns, a "Bank"
and collectively, the "Banks"), and TEXAS COMMERCE BANK 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
Credit Agreement dated as of December 27, 1994, as amended by that certain First
Amendment to Credit Agreement dated as of May 16, 1996, by and among the
Company, the Agent and the Banks, that certain Second Amendment to Credit
Agreement dated as of December 24, 1996, by and among the Company, the Agent,
and the Banks, that certain Third Amendment to Credit Agreement dated as of
March 24, 1997, by and among the Company, the Agent, and the Banks, and that
certain Fourth Amendment to Credit Agreement dated as of September 2, 1997, by
and among the Company, the Agent and the Banks (said Credit Agreement, as
previously amended, being hereinafter referred to as the "Credit Agreement");
and
WHEREAS, 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
Fifth Amendment, capitalized terms used herein which are defined in the Credit
Agreement shall have the same meanings when used herein.
Section 2. Modification of Capital Expenditure Negative Covenant.
Section 6.13 of the Credit Agreement is hereby amended and restated in its
entirety to hereafter read as follows:
6.13 Capital Expenditures. Make expenditures for fixed or
capital assets on a consolidated basis during any fiscal year of the
Company (beginning with its 1997 fiscal year and continuing until and
including the fiscal year ending in the calendar year in which the
Maturity Date occurs) in excess of $70,000,000 in the aggregate
(provided, that, in calculating said amount for any applicable fiscal
year (i) cash expenditures for acquisitions otherwise permitted for the
applicable fiscal year by Section 6.4(f) hereof shall not be included,
(ii) expenditures for fixed or capital assets made by Subsidiaries of
the Company, which were acquired during such fiscal year and accounted
for as a pooling of interest, shall not be included to the extent that
such expenditures were made prior to the time of acquisition, (iii) up
to $10,000,000 in the aggregate of expenditures incurred in the
applicable fiscal year for the buy-out of leases and other related
expenses in connection with the opening of one or more new store
locations by the Company or any of its Subsidiaries shall not be
included, and (iv) up to $20,000,000 in the aggregate of expenditures
incurred for the initial acquisition and construction of a new
manufacturing plant for Amrion, Inc. shall not be included).
Section 3. 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 of the Board of
Directors (or similar governing body) of the Company and its Subsidiaries which
are set out in the following described Secretary's Certificates 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 December 21,
1994, 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 December 21,
1994, executed and delivered to the Agent by the Secretary of Bread &
Circus, Inc., Mrs. Gooch's Natural Foods Market, Inc., The Sourdough: A
European Bakery, Inc., Wellspring Grocery, Inc., WFM Beverage Corp.,
Whole Foods Company, Inc., Whole Foods Market California, Inc. and
Whole Foods Market Southwest, Inc. in connection with the Credit
Agreement;
(c) That certain Secretary's Certificate dated April 5, 1995,
executed and delivered to the Agent by the Secretary of Whole Foods
Market Southwest I, Inc. in connection with that certain Joinder
Agreement dated effective March 27, 1995, executed and delivered to the
Agent by Whole Foods Market Midwest, Inc., Whole Foods Market Services,
Inc., Whole Foods Market Southwest I, Inc., Whole Foods Market
Southwest Investments, Inc. and Whole Foods Market Southwest, L.P.;
(d) That certain Secretary's Certificate dated April 5, 1995,
executed and delivered to the Agent by the Secretary of Whole Foods
Market Midwest, Inc., Whole Foods Market Services, Inc., and Whole
Foods Market Southwest Investments, Inc., in connection with the
above-described Joinder Agreement dated effective March 27, 1995;
(e) That certain Secretary's Certificate dated December 19,
1996, executed and delivered to the Agent by the Secretary of Whole
Foods Market Group, Inc., in connection with that certain Joinder
Agreement dated effective December 19, 1996, executed and delivered to
the Agent by Whole Foods Market Group, Inc.; and
(f) That certain Secretary's Certificate dated March 24, 1997,
executed and delivered to the Agent by the Secretary of Whole Foods
Market, Inc. in connection with the Third Amendment of the Credit
Agreement.
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 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 Fifth
Amendment and any of the foregoing documents, the terms of this Fifth 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 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 Fifth
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 6. Descriptive Headings, etc. The descriptive headings of the
several Sections of this Fifth 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 Fifth 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 Fifth Amendment.
Section 8. Counterparts. This Fifth 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 Fifth Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth 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 ss.26.02
THIS FIFTH 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: /s/ Glenda Flanagan
--------------------------
Glenda Flanagan, Secretary
Address for Notices:
Whole Foods Market, Inc.
601 N. Lamar Blvd., Suite 300
Austin, Texas 78703-5413
Attention: Ms. Glenda Flanagan
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, individually
and as Agent
By:
Name:
Title:
Address for Notices:
Texas Commerce Bank National Association
700 Lavaca, 2nd Floor
Post Office Box 550
Austin, Texas 78789
Attention: Manager/Metropolitan Lending Group
With a copy to:
Texas Commerce Bank National Association
1111 Fannin, 9th Floor
Houston, Texas 77002
Attention: Manager/Loan Syndication Services
WELLS FARGO BANK (TEXAS), N.A.
By:
Name:
Title:
Address for Notices:
Wells Fargo Bank (Texas), N.A.
100 Congress Avenue, Suite 150
Austin, Texas 78701
Attention: Ms. Susan L. Coulter
FIRST UNION NATIONAL BANK
By:
Name:
Title:
Address for Notices:
First Union National Bank
One First Union Center DC-5
301 South College Street
Charlotte, North Carolina 28288
Attention: Mr. David Hall
BANKBOSTON, N.A.
By:
Name:
Title:
Address for Notices:
BankBoston, N.A.
100 Federal Street
01-09-05
Boston, Massachusetts 02106
Attention: Ms. Judith C. E. Kelly
The undersigned existing Guarantors (a) acknowledge and consent to the
execution of the foregoing Fifth 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 Fifth 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 Fifth Amendment.
WHOLE FOODS MARKET, INC.,
a Texas corporation
By: /s/ Glenda Flanagan
--------------------------
Glenda Flanagan
Secretary
WHOLE FOOD COMPANY, INC.,
a Louisiana corporation
WHOLE FOODS MARKET CALIFORNIA, INC.,
a California corporation
MRS. GOOCH'S NATURAL FOOD MARKETS, INC.,
a California corporation
WFM BEVERAGE CORP.,
a Texas corporation
THE SOURDOUGH: A EUROPEAN BAKERY,
INC., a Texas corporation
WHOLE FOODS MARKET SERVICES, INC.,
a Delaware corporation
WHOLE FOODS MARKET SOUTHWEST
INVESTMENTS, INC.,
a Delaware corporation
WHOLE FOODS MARKET SOUTHWEST I, INC.,
a Delaware corporation
WHOLE FOODS MARKET GROUP, INC.,
a Delaware corporation
By: /s/ Glenda Flanagan
--------------------------
Glenda Flanagan
Secretary
WHOLE FOODS MARKET SOUTHWEST, L.P.,
a Texas limited partnership
By: Whole Foods Market Southwest I, Inc.,
a Delaware corporation
General Partner
By: /s/ Glenda Flanagan
--------------------------
Glenda Flanagan
Secretary