SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 30th day of June, 2004.
AMONG:
HARVEST ENERGY TRUST, a trust organized under the laws of Alberta
(hereinafter referred to as "Harvest Energy Trust")
- and -
HARVEST OPERATIONS CORP., a corporation incorporated under the laws of
Alberta (hereinafter referred to as "Harvest")
- and -
HARVEST EXCHANGECO LTD., a corporation incorporated under the laws of
Alberta (hereinafter referred to as "ExchangeCo")
- and -
VALIANT TRUST COMPANY, a trust company incorporated under the laws of
Canada (hereinafter referred to "Trustee")
WHEREAS pursuant to an arrangement agreement dated as of April 18, 2004
among Harvest Energy Trust, Harvest, Storm Energy Ltd. and 1106789 Alberta Ltd.
(such agreement, as it may be further amended or restated, is hereafter referred
to as the "Arrangement Agreement"), the parties agreed that on the Effective
Date (as defined in the Arrangement Agreement) the parties would execute and
deliver a support agreement which would govern the relationship among the
parties as it related to the issuance and existence of exchangeable shares (the
"Exchangeable Shares") in the capital of Harvest, which were issued pursuant to
the Arrangement;
AND WHEREAS the articles of Harvest set forth the rights, privileges,
restrictions and conditions (collectively, the "Share Provisions") attaching to
the Exchangeable Shares;
AND WHEREAS the parties hereto desire to make appropriate provision and
to establish a procedure whereby Harvest Energy Trust and ExchangeCo will take
certain actions and make certain payments and deliveries necessary to ensure
that Harvest will be able to make certain payments and to deliver or cause to be
delivered Harvest Trust Units in satisfaction of the obligations of Harvest
under the Share Provisions with respect to the payment and satisfaction of
dividends, Liquidation Amounts, Retraction Prices and Redemption Prices, all in
accordance with the Share Provisions.
NOW THEREFORE in consideration of the respective covenants and
agreements provided in this agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
Each term denoted herein by initial capital letters and not otherwise
defined herein shall have the meaning attributed thereto in the Share
Provisions, unless the context requires otherwise.
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1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this agreement into articles, sections and paragraphs
and the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this agreement.
1.3 NUMBER, GENDER, ETC.
Words importing the singular number only shall include the plural and
vice versa. Words importing the use of any gender shall include all genders.
1.4 DATE FOR ANY ACTION
If any date on which any action is required to be taken under this
agreement is not a Business Day, such action shall be required to be taken on
the next succeeding Business Day.
ARTICLE 2
COVENANTS OF HARVEST ENERGY TRUST, EXCHANGECO AND HARVEST
2.1 COVENANTS OF HARVEST ENERGY TRUST AND EXCHANGECO REGARDING
EXCHANGEABLE SHARES
So long as any Exchangeable Shares are outstanding, Harvest Energy
Trust and ExchangeCo each agree that:
(a) Harvest Energy Trust will, as soon as practicable following the
declaration of any Distribution, issue a press release as to the
resulting change in the Exchange Ratio for the Exchangeable Shares;
(b) Harvest Energy Trust and ExchangeCo will take all such actions and do
all such things as are necessary or desirable to enable and permit
Harvest, in accordance with applicable law, to pay and otherwise
perform its obligations with respect to the satisfaction of the
Liquidation Amount in respect of each issued and outstanding
Exchangeable Share upon the liquidation, dissolution or winding-up of
Harvest or any other distribution of the assets of Harvest for the
purpose of winding-up its affairs, including without limitation all
such actions and all such things as are necessary or desirable to
enable and permit Harvest to cause to be delivered Harvest Trust Units
to holders of Exchangeable Shares in accordance with the provisions of
Article 6 of the Share Provisions;
(c) Harvest Energy Trust and ExchangeCo will take all such actions and do
all such things as are necessary or desirable to enable and permit
Harvest, in accordance with applicable law, to pay and otherwise
perform its obligations with respect to the satisfaction of a
Retraction Request by a holder of Exchangeable Shares or a redemption
of Exchangeable Shares by Harvest, including without limitation all
such actions and all such things as are necessary or desirable to
enable and permit Harvest to cause to be delivered Harvest Trust Units
to such holder, upon the retraction or redemption of the Exchangeable
Shares in accordance with the provisions of Article 4 or Article 5 of
the Share Provisions, as the case may be; and
(d) Harvest Energy Trust will not exercise its vote as a shareholder of
Harvest to initiate the voluntary liquidation, dissolution or
winding-up of Harvest nor take any action or omit to take any action
that is designed to result in the liquidation, dissolution or
winding-up of Harvest.
2.2 SEGREGATION OF FUNDS
Subject to the exercise by Harvest Energy Trust or ExchangeCo of any of
the Call Rights, Harvest Energy Trust will cause Harvest to, from time to time,
deposit a sufficient amount of funds in a separate account and segregate a
sufficient amount of such assets and other property as is necessary to enable
Harvest to pay or otherwise satisfy the applicable dividends, Liquidation
Amount, Retraction Price or Redemption Price, in each case for the benefit of
holders from time to time of the Exchangeable Shares, and Harvest will use such
funds, assets and other property so segregated exclusively for the payment of
dividends and the payment or other satisfaction of the
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Liquidation Amount, the Retraction Price or the Redemption Price, as applicable,
net of any corresponding withholding tax obligations and for the remittance of
such withholding tax obligations.
2.3 NOTIFICATION OF CERTAIN EVENTS
In order to assist Harvest Energy Trust and ExchangeCo to comply with
their respective obligations hereunder, Harvest will give Harvest Energy Trust
and ExchangeCo notice of each of the following events at the time set forth
below:
(a) immediately, in the event of any determination by the Board of Directors of
Harvest to take any action which would require a vote of the holders of
Exchangeable Shares for approval;
(b) immediately, upon the earlier of: (i) receipt by Harvest of notice of; and
(ii) Harvest otherwise becoming aware of, any threatened or instituted
claim, suit, petition or other proceedings with respect to the involuntary
liquidation, dissolution or winding-up of Harvest or to effect any other
distribution of the assets of Harvest among its shareholders for the
purpose of winding-up its affairs;
(c) immediately, upon receipt by Harvest of a Retraction Request;
(d) at least 90 days prior to any Redemption Date;
(e) as soon as practicable upon the issuance by Harvest of any Exchangeable
Shares or any rights to acquire same; and
(f) in the event of any determination by the Board of Directors of Harvest to
institute voluntary liquidation, dissolution or winding-up proceedings with
respect to Harvest or to effect any other distribution of the assets of
Harvest among its shareholders for the purpose of winding-up its affairs,
at least 60 days prior to the proposed effective date of such liquidation,
dissolution, winding-up or other distribution.
2.4 DELIVERY OF HARVEST TRUST UNITS
In furtherance of its obligations hereunder, upon notice of any event
which requires Harvest to cause to be delivered Harvest Trust Units to any
holder of Exchangeable Shares, subject to the exercise by Harvest Energy Trust
or ExchangeCo of any of the Call Rights, Harvest Energy Trust shall forthwith
issue and deliver the requisite Harvest Trust Units to or to the order of the
former holder of the surrendered Exchangeable Shares, as Harvest shall direct.
All such Harvest Trust Units shall be free and clear of any lien, claim,
encumbrance, security interest or adverse claim or interest.
2.5 QUALIFICATION OF HARVEST TRUST UNITS
Harvest Energy Trust covenants that if any Harvest Trust Units (or
other securities into which Harvest Trust Units may be reclassified or changed
as contemplated by Section 2.6 hereof) to be issued and delivered hereunder
(including for greater certainty, in payment of or pursuant to, as applicable,
the Liquidation Amount, the Retraction Price, the Redemption Price, the
Liquidation Call Right, the Retraction Call Right, the Redemption Call Right,
the Exchange Rights or the Automatic Exchange Rights) (as that term is defined
in the Voting and Exchange Trust Agreement)), require registration or
qualification with or approval of or the filing of any document including any
prospectus or similar document, the taking of any proceeding with or the
obtaining of any order, ruling or consent from any governmental or regulatory
authority under any Canadian federal or provincial law or regulation or pursuant
to the rules and regulations of any regulatory authority, or the fulfilment of
any other legal requirement (collectively, the "Applicable Laws") before such
securities (or other securities into which Harvest Trust Units may be
reclassified or changed as contemplated by Section 2.6 hereof) may be delivered
by Harvest Energy Trust or ExchangeCo to the initial holder thereof (other than
Harvest) or in order that such securities may be freely traded thereafter (other
than any restrictions on transfer by reason of a holder being a "control person"
of Harvest Energy Trust for purposes of Canadian federal or provincial
securities law), Harvest Energy Trust and ExchangeCo will in good faith
expeditiously take all such actions and do all such things as are necessary to
cause
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such Harvest Trust Units (or other securities into which Harvest Trust Units may
be reclassified or changed as contemplated by Section 2.6 hereof) to be and
remain duly registered, qualified or approved. Harvest Energy Trust and
ExchangeCo represent and warrant that they have in good faith taken all actions
and done all things as are necessary under Applicable Laws as they exist on the
date hereof to cause the Harvest Trust Units (or other securities into which
Harvest Trust Units may be reclassified or changed as contemplated by Section
2.6 hereof) to be issued and delivered hereunder to be freely tradeable
thereafter (other than restrictions on transfer by reason of a holder being a
"control person" of Harvest Energy Trust for the purposes of Canadian federal
and provincial securities law). Harvest Energy Trust and ExchangeCo will in good
faith expeditiously take all such actions and do all such things as are
necessary to cause all Harvest Trust Units (or other securities into which
Harvest Trust Units may be reclassified or changed as contemplated by Section
2.6 hereof) to be delivered hereunder to be listed, quoted or posted for trading
on the Toronto Stock Exchange or such other stock exchange or quotation system
on which such securities are principally listed, quoted or posted for trading at
such time.
2.6 EQUIVALENCE
(a) Harvest Energy Trust will not:
(i) issue or distribute additional Harvest Trust Units (or securities
exchangeable for or convertible into or carrying rights to acquire
Harvest Trust Units) to the holders of all or substantially all of the
then outstanding Harvest Trust Units by way of stock distribution or
other distribution, other than an issue of Harvest Trust Units (or
securities exchangeable for or convertible into or carrying rights to
acquire Harvest Trust Units) to holders of Harvest Trust Units who
exercise an option to receive distributions in Harvest Trust Units (or
securities exchangeable for or convertible into or carrying rights to
acquire Harvest Trust Units) in lieu of receiving cash distributions;
(ii) issue or distribute rights, options or warrants to the holders of all
or substantially all of the then outstanding Harvest Trust Units
entitling them to subscribe for or to purchase Harvest Trust Units (or
securities exchangeable for or convertible into or carrying rights to
acquire Harvest Trust Units);
(iii) issue or distribute to the holders of all or substantially all of the
then outstanding Harvest Trust Units:
(A) securities of Harvest Energy Trust of any class other than
Harvest Trust Units (other than securities convertible into or
exchangeable for or carrying rights to acquire Harvest Trust
Units);
(B) rights, options or warrants other than those referred to in
Section 2.6(a)(ii) above;
(C) evidences of indebtedness of Harvest Energy Trust; or
(D) assets of Harvest Energy Trust other than Distributions which
result in an adjustment to the Exchange Ratio;
(iv) subdivide, redivide or change the then outstanding Harvest Trust Units
into a greater number of Harvest Trust Units; or
(v) reduce, combine or consolidate or change the then outstanding Harvest
Trust Units into a lesser number of Harvest Trust Units; or
(vi) reclassify or otherwise change the rights, privileges or other terms
of the Harvest Trust Units or effect an amalgamation, merger,
reorganization or other transaction involving or affecting the Harvest
Trust Units;
unless
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(vii) the same or an economically equivalent change is simultaneously made
to, or in the rights of the holders of, the Exchangeable Shares; or
(viii) it has received the prior written approval of Harvest and the
holders of the Exchangeable Shares.
(b) Harvest Energy Trust will ensure that the record date for any event
referred to in section 2.6(a) above, or (if no record date is applicable
for such event) the effective date for any such event, is not less than 10
Business Days after the date on which such event is declared or announced
by Harvest Energy Trust (with simultaneous notice thereof to be given by
Harvest Energy Trust to Harvest).
2.7 TENDER OFFERS, ETC.
In the event that a take-over bid or similar transaction with respect
to Harvest Trust Units (a "Bid") is proposed by Harvest Energy Trust or is
proposed to Harvest Energy Trust or the holders of Harvest Trust Units, and is
recommended by the Board of Directors of Harvest or is otherwise effected or to
be effected with the consent or approval of the Board of Directors of Harvest,
Harvest Energy Trust or Harvest or both shall, in good faith, use reasonable
efforts to take all such actions and do all such things as are necessary or
desirable to enable and permit holders of Exchangeable Shares to participate in
such Bid to the same extent and on an economically equivalent basis as the
holders of Harvest Trust Units, without discrimination, including, without
limiting the generality of the foregoing, Harvest Energy Trust or Harvest or
both will use its good faith efforts expeditiously to (and shall, in the case of
a transaction proposed by Harvest Energy Trust or Harvest or both or where
Harvest Energy Trust or Harvest or both is a participant in the negotiation
thereof) ensure that holders of Exchangeable Shares may participate in all such
Bids without being required to retract Exchangeable Shares as against Harvest
(or, if so required, to ensure that any such retraction shall be effective only
upon, and shall be conditional upon, the closing of the Bid and only to the
extent necessary to tender or deposit to the Bid).
2.8 OWNERSHIP OF OUTSTANDING SHARES
Harvest Energy Trust covenants and agrees that, as long as any
outstanding Exchangeable Shares are owned by any person or entity other than
Harvest Energy Trust, ExchangeCo or any of their respective affiliates, Harvest
Energy Trust will, unless approval to do otherwise is obtained in accordance
with Section 10.2 of the Share Provisions from the holders of the Exchangeable
Shares, be and remain the direct or indirect beneficial owner of more than 50%
of all issued and outstanding voting securities of Harvest.
2.9 HARVEST ENERGY TRUST AND EXCHANGECO NOT TO VOTE EXCHANGEABLE SHARES
Harvest Energy Trust and ExchangeCo covenant and agree that they will
appoint and cause to be appointed proxy holders with respect to all Exchangeable
Shares held by Harvest Energy Trust, ExchangeCo or any of their respective
affiliates for the sole purpose of attending each meeting of holders of
Exchangeable Shares in order to be counted as part of the quorum for each such
meeting. Harvest Energy Trust and ExchangeCo further covenant and agree that
they will not, and will cause their respective affiliates not to, exercise any
voting rights which may be exercisable by holders of Exchangeable Shares from
time to time pursuant to the Share Provisions or pursuant to the provisions of
the Act with respect to any Exchangeable Shares held by them or by their
respective affiliates in respect of any matter considered at any meeting of
holders of Exchangeable Shares.
2.10 DUE PERFORMANCE
On and after the Effective Date, Harvest Energy Trust and ExchangeCo
shall duly and timely perform all of their obligations under the Share
Provisions.
2.11 NO SPECIFIED FINANCIAL INSTITUTION
On and after the effective date hereof and until Harvest no longer has
any Exchangeable Shares issued and outstanding, neither Harvest Energy Trust nor
ExchangeCo nor any of its Affiliates will be a "specified financial institution"
as that term is defined in the INCOME TAX ACT (Canada).
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2.12 EXERCISE OF CALL RIGHTS
Harvest Energy Trust and ExchangeCo covenant and agree that, as long as
any outstanding Exchangeable Shares are owned by any person or entity other than
Harvest Energy Trust, ExchangeCo or any of their respective affiliates, Harvest
Energy Trust and ExchangeCo will formulate and implement a policy respecting
whether Harvest Energy Trust and ExchangeCo or either of them will exercise any
of the Call Rights.
ARTICLE 3
HARVEST ENERGY TRUST SUCCESSORS
3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
Harvest Energy Trust shall not complete any transaction (whether by way
of reconstruction, reorganization, consolidation, merger, transfer, sale, lease
or otherwise) whereby all or substantially all of its undertaking, property and
assets would become the property of any other person or, in the case of a
merger, of the continuing entity resulting therefrom unless, and may do so if:
(a) such other person or continuing entity (herein called the "Harvest Energy
Trust Successor"), by operation of law, becomes, without more, bound by the
terms and provisions of this Agreement or, if not so bound, executes, prior
to or contemporaneously with the consummation of such transaction, an
agreement supplemental hereto and such other instruments (if any) as are
reasonably necessary or advisable to evidence the assumption by the Harvest
Energy Trust Successor of liability for all moneys payable and property
deliverable hereunder and the covenant of such Harvest Energy Trust
Successor to pay and deliver or cause to be delivered the same and its
agreement to observe and perform all the covenants and obligations of
Harvest Energy Trust under this Agreement; and
(b) such transaction shall be upon such terms and conditions as substantially
to preserve and not to impair in any material respect any of the rights,
duties, powers and authorities of the other parties hereunder.
3.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 3.1 have been duly observed and
performed, the Harvest Energy Trust Successor, ExchangeCo and Harvest shall, if
required by Section 3.1, execute and deliver the supplemental agreement provided
for in Section 3.1(a) and thereupon Harvest Energy Trust Successor shall possess
and from time to time may exercise each and every right and power of Harvest
Energy Trust under this agreement in the name of Harvest Energy Trust or
otherwise and any act or proceeding by any provision of this agreement required
to be done or performed by the Board of Directors of Harvest or any officers of
Harvest on behalf of Harvest Energy Trust may be done and performed with like
force and effect by the directors or officers (or other agents or governing
body) of such Harvest Energy Trust Successor.
3.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the combination of any
wholly-owned direct or indirect subsidiary of Harvest Energy Trust with or into
Harvest Energy Trust or the winding-up, liquidation or dissolution of any
wholly-owned subsidiary of Harvest Energy Trust provided that all of the assets
of such subsidiary are transferred to Harvest Energy Trust or another
wholly-owned direct or indirect subsidiary of Harvest Energy Trust and any such
transactions are expressly permitted by this Article 3.
ARTICLE 4
GENERAL
4.1 TERM
This agreement shall come into force and be effective as of the date
hereof and shall terminate and be of no further force and effect at such time as
no Exchangeable Shares (or securities or rights convertible into or
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exchangeable for or carrying rights to acquire Exchangeable Shares) are held by
any party other than Harvest Energy Trust, ExchangeCo or any of their respective
Subsidiaries or affiliates.
4.2 CHANGES IN CAPITAL OF HARVEST ENERGY TRUST AND HARVEST
Notwithstanding the provisions of section 4.4 hereof, at all times
after the occurrence of any event effected pursuant to section 2.6 or 2.7
hereof, as a result of which either Harvest Trust Units or the Exchangeable
Shares or both are in any way changed, this agreement shall forthwith be amended
and modified as necessary in order that it shall apply with full force and
effect, mutatis mutandis, to all new securities into which Harvest Trust Units
or the Exchangeable Shares or both are so changed, and the parties hereto shall
as soon as possible execute and deliver an agreement in writing giving effect to
and evidencing such necessary amendments and modifications.
4.3 SEVERABILITY
If any provision of this agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
agreement shall not in any way be affected or impaired thereby and this
agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
4.4 AMENDMENTS, MODIFICATIONS, ETC.
This agreement may not be amended, modified or waived except by an
agreement in writing executed by Harvest Energy Trust, ExchangeCo and Harvest
and approved by the holders of the Exchangeable Shares in accordance with
Section 10.2 of the Share Provisions.
4.5 AMENDMENTS
Notwithstanding the provisions of Section 4.4, the parties to this
agreement may in writing, at any time and from time to time, without the
approval of the holders of the Exchangeable Shares, amend or modify this
agreement for the purposes of:
(a) adding to the covenants of Harvest Energy Trust, ExchangeCo, Harvest or any
combination of them for the protection of the holders of the Exchangeable
Shares provided that the Board of Directors of ExchangeCo, the Board of
Directors of Harvest, the Trustee and the Trustee's counsel are of the
opinion that such additions are not prejudicial to the interests of the
holders of the Exchangeable Shares;
(b) making such amendments or modifications not inconsistent with this
Agreement as may be necessary or desirable with respect to matters or
questions which, in the good faith opinion of the Board of Directors of
each of Harvest and ExchangeCo and in the opinion of the Trustee, having in
mind the best interests of the holders of Exchangeable Shares, it may be
expedient to make, provided that such Boards of Directors and the Trustee,
acting on the advice of counsel, shall be of the opinion that such
amendments and modifications will not be prejudicial to the interests of
the holders of Exchangeable Shares; or
(c) making such amendments or modifications which are required for the purpose
of curing or correcting any ambiguity, defect, inconsistent provision,
clerical omission, mistake or manifest error; provided that the Board of
Directors of ExchangeCo, the Board of Directors of Harvest, the Trustee and
the Trustee's counsel are of the opinion that such amendments or
modifications will not be prejudicial to the interests of the holders of
the Exchangeable Shares.
4.6 MEETING TO CONSIDER AMENDMENTS
Harvest, at the request of Harvest Energy Trust, ExchangeCo, or any
combination of them, shall call a meeting or meetings of the holders of the
Exchangeable Shares for the purpose of considering any proposed amendment or
modification requiring approval of such shareholders. Any such meeting or
meetings shall be called and held in accordance with the by-laws of Harvest, the
Share Provisions and all Applicable Laws.
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4.7 AMENDMENTS ONLY IN WRITING
No amendment to or modification or waiver of any of the provisions of
this agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto.
4.8 ENUREMENT
This agreement shall be binding upon and inure to the benefit of the
parties hereto and the holders, from time to time, of Exchangeable Shares and
each of their respective heirs, successors and assigns.
4.9 NOTICES TO PARTIES
All notices and other communications between the parties shall be in
writing and shall be deemed to have been given if delivered personally or by
confirmed telecopy to the parties at the following addresses (or at such other
address for either such party as shall be specified in like notice):
(a) if to Harvest Energy Trust, Harvest or ExchangeCo to:
c/o Harvest Operations Corp.
1900, 330 - 4th Avenue SW
Calgary, Alberta
T2P 0L4
Attention: President
Telecopier No.: (403) 265-3490
if to the Trustee to:
Valiant Trust Company
510, 550 - 6th Avenue SW
Calgary, Alberta
T2P 0S2
Attention: Manager, Corporate Trust Department
Telecopier No.: (403) 233-2857
Any notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof and if given by
telecopy shall be deemed to have been given and received on the date of
confirmed receipt thereof, unless such day is not a Business Day, in
which case it shall be deemed to have been given and received upon the
immediately following Business Day.
4.10 COUNTERPARTS
This agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
4.11 JURISDICTION
This agreement shall be construed and enforced in accordance with the
laws of the Province of Alberta and the federal laws of Canada applicable
therein.
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4.12 SUCCESSOR TO TRUSTEE
Any corporation into or with which the Trustee may be merged or
consolidated or amalgamated, or any corporation resulting therefrom to which the
Trustee shall be a party, or any corporation succeeding to the trust business of
the Trustee shall be the successor to the Trustee hereunder without any further
act on its part or any of the parties hereto.
4.13 ATTORNMENT
Each of Harvest Energy Trust, ExchangeCo, Harvest and the Trustee
agrees that any action or proceeding arising out of or relating to this
agreement may be instituted in the courts of the Province of Alberta, waives any
objection which it may have now or hereafter to the venue of any such action or
proceeding, irrevocably submits to the jurisdiction of such courts in any such
action or proceeding, agrees to be bound by any judgment of such courts and not
to seek, and hereby waives, any review of the merits of any such judgment by the
courts of any other jurisdiction.
4.14 LIABILITY OF THE TRUST
The parties hereto acknowledge that Harvest is entering into this
agreement solely in its capacity as authorized attorney on behalf of Harvest
Energy Trust and the obligations of Harvest Energy Trust hereunder shall not be
personally binding upon the Trustee, Harvest or any holder of Harvest Trust
Units and that any recourse against Harvest Energy Trust, the Trustee, Harvest
or any holder of Harvest Trust Units in any manner in respect of any
indebtedness, obligation or liability of Harvest Energy Trust arising hereunder
or arising in connection herewith or from the matters to which this agreement
relates, if any, including without limitation claims based on negligence or
otherwise tortious behaviour, shall be limited to, and satisfied only out of,
the Trust Fund as defined in the Trust Indenture dated as of September 27, 2002
as amended from time to time.
IN WITNESS WHEREOF the parties hereto have caused this agreement to be
signed by their respective officers thereunder duly authorized, all as of the
date first written above.
HARVEST ENERGY TRUST, HARVEST OPERATIONS CORP.
by its authorized attorney,
HARVEST OPERATIONS CORP.
By: By:
------------------------------------ ----------------------------------------
Name: Name:
Title: Title:
HARVEST EXCHANGECO LTD. VALIANT TRUST COMPANY
By: By:
------------------------------------ ----------------------------------------
Name: Name:
Title: Title
By:
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Name:
Title: