Exhibit 10.4
AGREEMENT
This Agreement dated as of
June 30, 2008 (this “Agreement”), is made by and
between General Electric Capital Corporation (“Lender”)
and Favrille, Inc. a Delaware corporation
(“Borrower”).
WITNESSETH
:
A.
GE Capital and Borrower are parties
to that certain Master Security Agreement dated as of
December 30, 2005 as amended by an Amendment No. 1 dated
as of December 30, 2005, pursuant to which Lender made a
series of loans (the “Loans”) to Borrower arising under
and evidenced by a series of promissory notes delivered by Borrower
to Lender (the foregoing Master Security Agreement, the promissory
notes, this Agreement, and any other documents evidencing or
relating to the obligations arising thereunder, as any such
documents may have been amended, restated, modified or supplemented
from time to time, are hereafter referred to as the “Loan
Documents”), which Loans are secured by a security interest
in certain property owned by Borrower (the
“Collateral”).
B.
A default occurred under the Loan
Documents on or about June 4, 2008, thus entitling Lender to
exercise its legal rights and remedies. On or about
June 5 and 6, 2008, Lender and Oxford Finance Corporation
(“Oxford”), another secured creditor of Borrower,
delivered notices of exclusive control (the “Control
Notices”) to certain financial institutions at which Borrower
maintained funds. On or about June 11, 2008, Lender and
Oxford notified those financial institutions to deliver funds to
Lender and to Oxford.
C.
Pursuant to the Control Notices,
Lender received $5,051,588.68 on or about June 11, 2008.
On or about June 17, 2008, Lender notified Borrower of such
receipt and of how such funds were applied. Lender also
demanded repayment of the balance that Lender contended was still
owing.
D.
A portion of the funds that Lender
received was applied by Lender on account of a prepayment charge
that Lender contends was owed to it. Borrower has disputed
Lender’s entitlement to receive the prepayment
charge.
E.
Borrower and Lender desire to
resolve that dispute, to settle any remaining issues under the Loan
Documents, and to provide each other with mutual releases of
claims.
NOW, THEREFORE
, in consideration of the premises,
the covenants and agreements contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties do hereby agree as
follows:
STATEMENT OF
TERMS
.14
Acknowledgment of
Recitals .
Borrower
and Lender acknowledge the accuracy of the recitals set forth
above.
.15
Wire Transfer
. No later than two
business days after execution and delivery of this Agreement and
Lender’s receipt of an executed copy of the Borrower/Oxford
Agreement (as defined below), Lender shall send a wire transfer for
the benefit of Borrower in the amount of $54,920.28 (the
“Transfer”). At Borrower’s request, the
Transfer will be sent by Lender to Oxford. Borrower has
informed Lender that it is concurrently entering into an agreement
with Oxford (the “Borrower/Oxford Agreement”) that
resolves Borrower’s similar dispute with Oxford and that,
pursuant thereto, Oxford is to receive the Transfer directly from
Lender. Lender is not a party to the Borrower/Oxford
Agreement and has no responsibility to Borrower or
