Exhibit 4.17
ING CAPITAL Internationale Nederlanden (U.S.) Capital Corporation
______________________________________________________________________________
December 28, 1995
HarCor Energy Inc.
Five Post Oak Park, suite 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Chairman and Chief Executive Officer
Gentlemen:
This letter sets forth the terms and conditions of the agreement between
Internationale Nederlanden (U.S) Capital Corporation ("INCC") and HarCor Energy
Inc. ("HarCor") relating to the payment of certain fees and reimbursable costs
owed by XxxXxx to INCC in connection with the Amended and Restated Credit
Agreement entered into as of July 19, 1995 between INCC and HarCor (the "Credit
Agreement").
By your execution of this letter agreement, it is agreed that payment of
the fees and reimbursable costs owed by XxxXxx to INCC in connection with the
Credit Agreement will be satisfied as follows:
(1) HarCor will:
(i) pay to INCC, by wire transfer in immediately available funds, the
amount of $137,654.71 ($37,654.71 of which is for reimbursement of the fees
and expenses of counsel to INCC previously billed to HarCor in connection
with the Credit Agreement, and at the request of INCC will be directly
wired to INCC's Counsel); and
(ii) deliver to INCC, 30,000 unregistered shares of HarCor Common
Stock (the "Shares") which such Shares shall:
(A) have been duly and validly issued by XxxXxx, fully paid and
nonassessable and free from all taxes, liens and charges; and
(B) be entitled to "piggy-back registration rights" if the
Company proposes to file a Registration Statement for its own account of
its common equity securities (other than (i) a Registration Statement on
Form S-4 or S-8, or (ii) a Registration Statement filed in connection with
an exchange offer or offering of securities solely to the Company's
existing security holders). The Company would give INCC at least 30 days
prior written notice of any filing and at the request of INCC would include
the Shares in such registration, at the expense of the Company ("piggy-back
registration rights"), subject to any limitations and priorities
customarily set forth in similar registration rights granted by the
Company.
(2) INCC will thereafter deliver to HarCor for cancellation: (i) that
certain Warrant to purchase 76,000 shares of the common stock of HarCor at
an exercise price of $5.50 with an expiration date of March 18, 1997; and
(ii) that certain Warrant to purchase 50,000 shares of HarCor Common Stock
with an exercise price of $4.75 and an expiration date of December 31,
1999.
HarCor also acknowledges and agrees that the provisions in the Credit
Agreement requiring HarCor to reimburse INCC for all costs and expenses
relating to such Credit Agreement (including reasonable fees and expenses
of counsel in addition to those referred to in paragraph (1) and to
indemnify INCC and its directors, officers, and employees for liabilities
in connection therewith, shall be applicable to this letter agreement and
the transactions contemplated hereby and shall survive the termination of
this letter agreement.
This agreement shall terminate and INCC's obligations hereunder shall be of
no further force and effect if HarCor shall not have performed its
obligations under this letter agreement on or before December 31, 1995.
No waiver of any provision of the Credit Agreement or any other Loan
Document executed in connection therewith shall be deemed to have occurred
by execution of this letter agreement nor shall this letter be deemed to
amend, alter, modify or impair the Credit Agreement or such other Loan
Documents. The terms and provisions of the Credit Agreement and all other
Loan Documents executed in connection therewith are and shall remain in
full force and effect and the same are hereby ratified and confirmed by the
Borrower in all respects.
This letter shall be governed by New York law. This letter shall not be
delivered to any other party.
Please evidence your agreement to and acceptance of the foregoing by
signing and returning to us the enclosed copy of this letter.
Yours truly,
Internationale Nederlanden (U.S)
Capital Corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
Vice President
AGREED TO AND ACCEPTED
as of December 28, 1995
HarCor Energy, Inc.
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxxx
Chairman and Chief Executive Officer
