SunOpta Inc.: Exhibit - Prepared by TNT Filings Inc.




  




WAIVER AGREEMENT


This waiver agreement is made as of the 30th day of April, 2008


A M O N G


SUNOPTA INC.

SUNOPTA LP

SUNOPTA FOOD GROUP LLC


as Borrowers


and


EACH OF THE FINANCIAL INSTITUTIONS

AND OTHER ENTITIES FROM TIME TO TIME

PARTIES HERETO

as Lenders


and


CERTAIN AFFILIATES OF

THE BORROWERS

as Obligors


and


BANK OF MONTREAL

as Agent


and


HARRIS N.A.

as US Security Agent and

as US Administrative Agent


WITNESSES THAT WHEREAS:


(a)


the Lenders severally made credit facilities available to the Borrowers on the terms and conditions set out in a fourth amended and restated credit agreement dated as of July 4, 2007 among the Borrowers, the Lenders, the Obligors, the Agent and the US Security Agent, as amended (the "Credit Agreement");
 


(b)


the Borrowers expect that, as at April 30, 2008 and May 31, 2008, they will not be in compliance with, as applicable, the delivery requirements of Sections 9.4(a), 9.4(c) and 9.4(d) of the Credit Agreement in respect of the Borrowers’ 2007 Fiscal Year and the Borrowers’ first Fiscal Quarter of 2008;




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(c)


the Borrowers have requested that the Lenders (i) temporarily waive compliance with the requirement of the Borrowers to deliver to the Agent on or before May 31, 2008 the quarterly financial information and compliance certificate for the first Fiscal Quarter of 2008 contemplated by Section 9.4(a) of the Credit Agreement, (ii) temporarily waive compliance with the requirement of SunOpta to deliver to the Agent on or before April 30, 2008 the financial information for Fiscal Year 2007 contemplated by Section 9.4(c) of the Credit Agreement, and (iii) temporarily waive compliance with the requirement of SunOpta Food Group and LP to deliver to the Agent on or before April 30, 2008 the financial and other information for Fiscal Year 2007 contemplated by Section 9.4(d) of the Credit Agreement; and


(d)


the Majority Lenders have agreed to such requests on the terms and conditions set forth herein and the parties are entering into this Waiver Agreement to give effect to such waivers by the Majority Lenders.


NOW THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties covenant and agree as follows:


SECTION 1

INTERPRETATION


1.1


Definitions from Credit Agreement.  Capitalized terms defined in the Credit Agreement have the same meanings in this waiver agreement unless otherwise defined herein or the context expressly or by necessary implication requires otherwise.  This waiver agreement is referenced herein as the "Waiver Agreement".  For greater certainty, this Waiver Agreement amends the Credit Agreement and the term "Agreement", as defined in the Credit Agreement, includes (unless the context expressly or by necessary implication requires otherwise) this Waiver Agreement to the extent of such amendments.  For purposes of this Waiver Agreement, the term "Waiver Closing Date" means April 30, 2008.


1.2


Headings.  The insertion of headings in this Waiver Agreement is for convenience of reference only and shall not affect the interpretation of this Waiver Agreement.


SECTION 2

WAIVERS


2.1


Quarterly Consolidated Financial Statements.  The Agent (on the direction of the Majority Lenders by virtue of the execution of this Waiver Agreement by the Majority Lenders) hereby waives, subject to what is stated below, the requirement under Section 9.4(a) of the Credit Agreement that the Borrowers deliver to the Agent on or before May 31, 2008 the quarterly financial information and compliance certificate for the first Fiscal Quarter of 2008 contemplated by Section 9.4(a) of the Credit Agreement.  The Waiver provided for herein is a temporary waiver only and the Borrowers covenant and agree that they will deliver to the Agent, on or before June 30, 2008, all of the financial information and the compliance certificate in respect of the first Fiscal Quarter of 2008 as is contemplated in Section 9.4(a) of the Credit Agreement.  The Borrowers acknowledge, consent and agree that failure to deliver to the Agent the information contemplated by Section 9.4(a) of the Credit Agreement on or before June 30, 2008 shall constitute a Default for purposes of the Credit Agreement.




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2.2


SunOpta Annual Financial Statements.  The Agent (on the direction of the Majority Lenders by virtue of the execution of this Waiver Agreement by the Majority Lenders) hereby waives, subject to what is stated below, the requirement under Section 9.4(c) of the Credit Agreement that SunOpta deliver to the Agent on or before April 30, 2008 the financial information for Fiscal Year 2007 contemplated by Section 9.4(c) of the Credit Agreement.  The waiver provided for herein is a temporary waiver only and SunOpta covenants and agrees that it will deliver to the Agent, on or before June 30, 2008, all of the financial information required to be delivered to the Agent in respect of Fiscal Year 2007 as is contemplated in Section 9.4(c) of the Credit Agreement.  The Borrowers acknowledge, consent and agree that failure to deliver to the Agent the information contemplated by Section 9.4(c) of the Credit Agreement on or before June 30, 2008 shall constitute a Default for purposes of the Credit Agreement.


2.3


SunOpta Food Group Annual Financial Statements and LP Annual Tax Statement.  The Agent (on the direction of the Majority Lenders by virtue of the execution of this Waiver Agreement by the Majority Lenders) hereby waives, subject to what is stated below, the requirement under Section 9.4(d) of the Credit Agreement that SunOpta Food Group and LP, as applicable, deliver to the Agent on or before April 30, 2008 the financial and other information for Fiscal Year 2007 contemplated by Section 9.4(d) of the Credit Agreement.  The waiver provided for herein is a temporary waiver only and each of SunOpta Food Group and LP, as applicable, covenant and agree that it will deliver to the Agent on or before June 30, 2008, all of the financial and other information required to be delivered in respect of Fiscal Year 2007 as is contemplated in Section 9.4(d) of the Credit Agreement.  The Borrowers acknowledge, consent and agree that failure to deliver to the Agent the information contemplated by Section 9.4(d) of the Credit Agreement on or before June 30, 2008 shall constitute a Default for purposes of the Credit Agreement.


SECTION 3

CONDITIONS PRECEDENT


3.1


Conditions Precedent.  The effectiveness of this Waiver Agreement is subject to and conditional upon the satisfaction of the following conditions:


(a)


Delivery of Documents.  The Agent shall have received, in form and substance satisfactory to the Agent and the Lenders, the following:


(i)


Waiver Agreement duly executed by all of the parties hereto; and


(ii)


such other documentation or information as the Agent and the Lenders shall have reasonably requested.




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(b)


Material Adverse Change.  No Material Adverse Change shall have occurred with respect to the Obligors.


(c)


No Default.  No Default or Event of Default shall have occurred and be continuing.


3.2


Waiver.  The conditions stated in Section 3.1 hereof are inserted for the sole benefit of the Agent and the Lenders and may only be waived by the Majority Lenders, in whole or in part, with or without terms or conditions.


SECTION 4

REPRESENTATIONS AND WARRANTIES


4.1


Representations.  Each Obligor represents and warrants to the Agent and the Lenders that:


(a)


the Credit Agreement, as amended by the Waiver Agreement, is its legal, valid and binding obligation, enforceable against each applicable Obligor in accordance with its terms, subject to (i) applicable bankruptcy, reorganization, moratorium or similar law affecting creditors' generally, (ii) the fact that specific performance and injunctive relief may only be given at the discretion of the courts, and (iii) the equitable or statutory powers of the courts to stay proceedings before them and to stay the execution of judgments;


(b)


the Credit Agreement, as amended by the Waiver Agreement, does not conflict with any constating document, agreement, instrument or undertaking binding upon each applicable Obligor or any of its properties; and


(c)


no Default or Event of Default now exists under the Credit Agreement or will exist after giving effect to the Waiver Agreement.


SECTION 5

GENERAL


5.1


Effective Date.  Notwithstanding the date of execution of this Waiver Agreement, upon the satisfaction or waiver, as applicable, of all of the conditions precedent set out in Section 3.1 hereof, the effective date of the waivers and all amendments to the Credit Agreement made by this Waiver Agreement shall for all purposes be April 30, 2008.


5.2


Severability.  Any provision of this Waiver Agreement which is prohibited by the laws of any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition without invalidating the remaining terms and provisions hereof.
 


5.3


Costs, Expenses and Taxes.  The Borrowers agree to pay, on demand, all reasonable costs and expenses of the Agent and the Lenders in connection with the preparation, execution, delivery, operation or enforcement of this Waiver Agreement and the Credit Agreement including, without limitation, the reasonable fees and out-of-pocket expenses of third parties, the Lenders' counsel and other professionals engaged by the Agent and the Lenders with respect to the preparation, negotiation and documentation of this Waiver Agreement and the related closing documents with respect thereto and with respect to advising the Agent and the Lenders of their rights and responsibilities in connection with the continuing operation of the Credit Agreement.  




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5.4


Form of Documents.  All documents delivered under this Waiver Agreement or under the Credit Agreement shall be in form and substance satisfactory to the Agent, the Lenders and their counsel, each acting reasonably.


5.5


Governing Law.  This Waiver Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and shall be treated in all respects as an Ontario contract.  Each Obligor irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario.  This Waiver Agreement shall enure to the benefit of and be binding on or parties hereto, their respective successors and any permitted assignees.


5.6


Governing Documents.  The Credit Agreement as amended by this Waiver Agreement and all other documents (including the Documents) delivered pursuant to or referenced in the Credit Agreement as amended by this Waiver Agreement constitute the complete agreement of the parties hereto with respect to the subject matter hereof and supersede any other agreements or understandings between or among the Borrowers, the Obligors, the Agent, the US Security Agent and the Lenders.  Save as expressly amended by this Waiver Agreement, all other terms and conditions of the Credit Agreement remain in full force and effect unamended and the Credit Agreement is hereby ratified and confirmed.  For greater certainty, each applicable Obligor confirms that each of the Documents made or granted by it pursuant to the Credit Agreement remains in full force and effect notwithstanding the waivers or supplements to the Credit Agreement contained herein.  The waivers contained in Section 2 of this Waiver Agreement are only effective in respect of the matters and for the periods of time described therein and shall not in any way be construed as a waiver of any other, future or subsequent event, circumstance, omission, Default or Event of Default.  The Agent and the Lenders expressly reserve its and their rights with respect to any Default or Event of Default now existing or hereafter arising.


5.7


Time of the Essence.  Time shall be of the essence of this Waiver Agreement.


5.8


Counterparts.  This Waiver Agreement may be executed and delivered in any number of counterparts, each of which when executed and delivered is an original but all of which taken together constitute one and the same instrument.


IN WITNESS WHEREOF the parties hereto have caused this Waiver Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.




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  SUNOPTA INC.

	
   
	
   
	
  
  SUNOPTA LP

By: 1510146 Ontario Inc., its General Partner


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

   


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

   


I/we have authority to bind the corporation


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  SUNOPTA FOOD GROUP LLC

	
   
	
   
	
  
  MARATHON NATURAL FOODS LTD.


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

   


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

  


I/we have authority to bind the corporation


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  1510146 ONTARIO INC.

	
   
	
   
	
  
  3060385 NOVA SCOTIA COMPANY


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

   


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

   


I/we have authority to bind the corporation




 




- 7 -

	
   
	
  
  DRIVE ORGANICS CORPORATION

	
   
	
   
	
  
  SUNRICH LLC


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

  Title: Treasurer

   


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

   


I/we have authority to bind the corporation


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  SUNOPTA FRUIT GROUP INC.

	
   
	
   
	
  
  SUNOPTA ASEPTIC, INC.


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer


I/we have authority to bind the corporation


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  SUNOPTA LLC

	
   
	
   
	
  
  SUNOPTA GLOBAL ORGANIC INGREDIENTS INC.


	
  
  By:

	
   
	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name:


Title:

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer


I/we have authority to bind the corporation




 




- 8 -

	
   
	
  
  SUNOPTA INGREDIENTS, INC.

	
   
	
   
	
  
  SUNOPTA HOLDINGS INC.


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

 


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

 


I/we have authority to bind the corporation


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  SUNOPTA FINANCING INC.

	
   
	
   
	
  
  GLOBAL TRADING INC.


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

 


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

 


I/we have authority to bind the corporation


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  SUNOPTA DE MEXICO, S. DE R.L. DE C.V.

	
   
	
   
	
  
  SERVICIOS SUNOPTA, S. DE R.L. DE C.V.


	
  
  By:

	
  
  "John Dietrich"

	
   
	
  
  By:

	
  
  "John Dietrich"


	
   
	
  
  Name: John Dietrich

Title: VP & CFO

	
   
	
   
	
  
  Name: John Dietrich

Title: VP & CFO


	
  
  By:

	
  
  "Paul Van Weelie"

	
   
	
  
  By:

	
  
  "Paul Van Weelie"


	
   
	
  
  Name: Paul Van Weelie

  Title: Treasurer

 


I/we have authority to bind the corporation

	
   
	
   
	
  
  Name: Paul Van Weelie

Title: Treasurer

 


I/we have authority to bind the corporation


	
   
	
   

	
   
	
   
	
   



 




- 9 -

	
   
	
  
  BANK OF MONTREAL, in its capacity as Agent

	
   
	
   
	
  
  HARRIS N.A., in its capacity as US Security Agent


	
  
  By:

	
  
  "J. Di Giacomo"

	
   
	
  
  By:

	
  
  "Shane Koonce"


	
   
	
  
  Name: J. Di Giacomo

Title: Director

	
   
	
   
	
  
  Name: Shane Koonce

Title: Vice President


	
  
  By:

	
   
	
   
	
  
  By:

	
   

	
   
	
  
  Name:

Title:

	
   
	
   
	
  
  Name:

Title:


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  HARRIS N.A., in its capacity as US Administrative Agent

	
   
	
   
	
  
  BANK OF MONTREAL, in its capacity as Lender


	
  
  By:

	
  
  "Shane Koonce"

	
   
	
  
  By:

	
  
  "David Graham"


	
   
	
  
  Name: Shane Koonce

Title: Vice President

	
   
	
   
	
  
  Name: David Graham

Title: Senior Accountant Manager


	
  
  By:

	
   
	
   
	
  
  By:

	
   

	
   
	
  
  Name:

Title:

	
   
	
   
	
  
  Name:

Title:


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  BANK OF MONTREAL, (Chicago Branch) in its capacity as Lender

	
   
	
   
	
  
  HARRIS N.A., in its capacity as Lender


	
  
  By:

	
  
  "Shane Koonce"

	
   
	
  
  By:

	
  
  "Shane Koonce"


	
   
	
  
  Name: Shane Koonce

Title: Vice President

	
   
	
   
	
  
  Name: Shane Koonce

Title: Vice President


	
  
  By:

	
  
  "David Graham"

	
   
	
  
  By:

	
   

	
   
	
  
  Name: David Graham

Title: Senior Accountant Manager

	
   
	
   
	
  
  Name:

Title:


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  BANK OF MONTREAL (Toronto Branch) in its capacity as Lender

	
   
	
   
	
  
  SUN LIFE ASSURANCE COMPANY OF CANADA, in its capacity as Lender


	
  
  By:

	
  
  "David Graham"

	
   
	
  
  By:

	
  
  "Steve Theofants"


	
   
	
  
  Name: David Graham

Title: Senior Accountant Manager

	
   
	
   
	
  
  Name: Steve Theofants

Title: Managing Director


         Private Fixed Income


	
  
  By:

	
  
  "Sean P. Gallway"

	
   
	
  
  By:

	
  
  "Keith Cressman"


	
   
	
  
  Name: Sean P. Gallaway

  Title: Vice President

	
   
	
   
	
  
  Name: Keith Cressman

Title: Managing Director


          Private Fixed Income


	
   
	
   
	
   
	
   
	
   



 




- 10 -

	
   
	
  
  THE MANUFACTURERS LIFE INSURANCE COMPANY, in its capacity as Lender

	
   
	
   
	
  
  JOHN HANCOCK LIFE INSURANCE COMPANY, in its capacity as Lender


	
  
  By:

	
  
  "Patrick Chen"

	
   
	
  
  By:

	
  
  "Jacqueline T. Ryan"


	
   
	
  
  Name: Patrick Chen

Title: VP CDN Private Placements

	
   
	
   
	
  
  Name: Jacqueline T. Ryan

Title: Authorized  Signatory


	
  
  By:

	
   
	
   
	
  
  By:

	
   

	
   
	
  
  Name:

Title:

	
   
	
   
	
  
  Name:

Title:


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.), in its capacity as Lender

	
   
	
   
	
  
  HSBC BANK CANADA, in its capacity as Lender


	
  
  By:

	
   
	
   
	
  
  By:

	
  
  "Jody Sanderson"


	
   
	
  
  Name:

Title:

	
   
	
   
	
  
  Name: Jody Sanderson

Title: Global Relationship  


          Manager & Director


	
  
  By:

	
   
	
   
	
  
  By:

	
  
  "Sophia Soofi"


	
   
	
  
  Name:

Title:

	
   
	
   
	
  
  Name: Sophia Soofi

Title: Relationship Manager


	
   
	
   
	
   
	
   
	
   

	
   
	
  
  HSBC BANK U.S.A., N.A., in its capacity as Lender

	
   
	
   
	
  
  RABOBANK NEDERLAND CANADIAN BRANCH, in its capacity as Lender


	
  
  By:

	
  
  "Mohan Mahimtura"

	
   
	
  
  By:

	
  
  "Jason Hoogenboom"


	
   
	
  
  Name: Mohan Mahimtura

Title: VP

	
   
	
   
	
  
  Name: Jason Hoogenboom

Title: Vice President


	
  
  By:

	
   
	
   
	
  
  By:

	
  
  "Craig Squires"


	
   
	
  
  Name:

Title:

	
   
	
   
	
  
  Name: Craig Squires

Title: Vice President


	
   
	




	
   
	
   
	
   



 




- 11 -

	
     
	
    
    COOPERATIEVE CENTRALE
    RAIFFEISEN-BOERENLEENBANK B.A.,

    "RABOBANK NEDERLAND",

    NEW YORK BRANCH, in its capacity as Lender

 
	
     
	
     
	
     

	
    
    By:
	
    
    "Brett Delfino"
	
     
	
     
	
     

	
     
	
    
    Name: Brett Delfino

    Title: Executive Director
	
     
	
     
	
     

	
    
    By:
	
    
    "Ian Reece"
	
     
	
     
	
     

	
     
	
    
    Name: Ian Reece

    Title: Managing Director