Preview
INDEX NO. 135394-2023
FILED: ONTARIO COUNTY CLERK 0472872023 07:21 AM
ai an"
NYSCEF DOC. NO en
ra
th ys
Sea
Ontario County Clerk Recording Page
Return To Pamela Keefe, Acting County Clerk
GABRIEL MENDELBERG Ontario County Clerk
75 Maiden Lane Suite 603 20 Ontario Street
New York, NY 10038 Canandaigua, New York 14424
(585) 396-4200
Document Type: AFFIDAVIT OR Receipt Number: 673523
AFFIRMATION IN SUPPORT OF MOTION
Plaintiff Defendant
VELOCITY CAPITAL GROUP LLC ZOTHEX FLOORING INC
Fees
Control #: 202304280223
Total Fees Paid: $0.00
Index #: 135394-2023
State of New York
County of Ontario
EFiling through NYSCEF with a total page count of
8.
Rael Hees
Acting Ontario County Clerk
This sheet constitutes the Clerk's endorsement required by section 319 of the Real Property Law of the State of New York
SL Do Not Detach
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONTARIO
le
VELOCITY CAPITAL GROUP LLC,
Index No. 135394-2023
Plaintiff,
AFFIDAVIT
- against -
ZOTHEX FLOORING INC., CABINETS & MORE,
LLC, and CLAYTON FERREIRA RODRIGUES,
Defendants.
ee ee
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
JACOB AVIGDOR, being duly sworn, deposes and says:
1 I am an authorized officer of plaintiff Velocity Capital Group LLC (“Velocity”).
As such and based on remittance records maintained by Velocity in the ordinary course of
business, I am personally familiar with the facts set forth below.
2 I respectfully submit this affidavit in support of Velocity’s motion for summary
judgment on its breach of contract cause of action against defendants Zothex Flooring Inc.
(“Merchant”) and breach of personal guaranty cause of action against defendants Cabinets &
More LLC and Clayton Ferreira Rodrigues (“Guarantors”) (collectively, the “Defendants”) in the
amount of $488,667.50, with statutory interest from February 7, 2023.
3 I supervise collections for Velocity and am a keeper of Velocity’s business
records. One of my duties in this position is to review these records and I work with them daily.
Each of the documents annexed hereto is a business record maintained in the ordinary course of
business and made at the time of the event or transaction by Velocity and it was Velocity’s
regular course of business to maintain such records. I have personal knowledge of Velocity’s
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record keeping practices and of the documents annexed hereto, including the electronic signature
of the agreements at issue by the Defendants through Velocity’s application and e-signature
portal.
The Merchant Agreement
4. Merchant has breached a Revenue Purchase Agreement dated November 1, 2022
(the “Merchant Agreement”), a true and accurate copy of which, kept in the ordinary course of
business by Velocity, is annexed hereto as Exhibit 1.
5 Pursuant to the Merchant Agreement, Merchant sold $695,000.00 (the “Purchased
Amount”) of Future Receipts to Velocity for $500,000.00 less disclosed fees and open balance
transfers (the “Purchase Price”). Id. at p. 1.!
6 Upon receiving the Purchase Price, Merchant was required to remit 20% (the
“Purchased Percent”) of its Receipts until the Purchased Amount was remitted to Velocity in
full. Id. at p. 1.
i The Merchant Agreement required an initial weekly “Remittance” from
Merchant of $21,719.00. Merchant Agreement at p. 1. However, the Remittance was an initial
estimate of what the Purchased Percent would generate and was arrived at by Velocity and the
Merchant based, in part, on Merchant’s representations concerning its typical revenue stream.
Id. (‘The Remittance is a good faith estimate of (a) Purchased Percentage multiplied by (b) the
daily average revenues of Seller during the previous calendar month divided by (c) the number
of business days in the calendar month.”).
8 To this end, Paragraphs 1.4 of the Merchant Agreement provides:
1 “Receipts” are defined in the agreement as “all of Merchant’s future receipts, contract rights and
other entitlements arising from or relating to the payment of monies from Merchant’s customers and/or
other third party payors ... for the payments to Merchant as a result of Merchant’s sale of goods and/or
services...” Id. at p. 1.
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If an Event of Default has not occurred, every two (2) calendar weeks after the
funding of the Purchase Price to Merchant, Merchant may give notice to VCG to
request a decrease in the Remittance. The amount shall be decreased if the
amount received by VCG was more than the Purchased Percentage of all revenue
of the Merchant since the date of this Revenue Purchase Agreement. The
Remittance shall be modified to more closely reflect the Merchant’s actual
receipts by multiplying the Merchant’s actual receipts by the Purchased
Percentage divided by the number of business days in the previous (2) calendar
weeks. Seller shall provide VCG with viewing access to their bank account as
well as all information reasonably requested by VCG to properly calculate the
Merchant’s Remittance. At the end of the two (2) calendar weeks the Merchant
may request another adjustment pursuant to this paragraph or it is agreed that the
Merchant’s Remittance shall return to the Remittance as agreed upon on Page | of
this Agreement.
Id.
9 The Merchant Agreement repeatedly makes clear that it is not a loan, but rather, is
a risk-based purchase of future receipts on a percentage basis at a discount with no fixed term for
repayment:
Merchant is selling a portion of a future revenue stream to VCG at a discount, not
borrowing money from VCG; therefore, there is no interest rate or payment
schedule and no time period during which the Purchased Amount_must_be
‘collected by VCG. .... VCG is entering this Agreement knowing the risks that
Merchant’s business may slow down or fail, and VCG assumes these risks based
on Merchant’s representations, warranties and covenants in this Agreement,
which are designed to give VCG a reasonable and fair opportunity to receive the
benefit of its bargain. Merchant and Guarantor are only guaranteeing their
performance of the terms of this Revenue Purchase Agreement and are not
guaranteeing the payment of the Purchased Amount. The initial Remittance shall
be as described above. The Remittance is subject to adjustments as set forth in
Paragraph 1.4.
Id. at p. 1 (emphasis added).?
2
Section 1.10 of the Merchant Agreement similarly provides: “Merchant and VCG agree that the
Purchase Price under this Agreement is in exchange for the Purchased Amount, and that such Purchase
Price is not intended to be, nor shall it be construed as a loan from VCG to Merchant. Merchant agrees
that the Purchase Price is in exchange for the Receipts pursuant to this Agreement, and that it equals the
fair market value of such Receipts. VCG has purchased and shall own all the Receipts described in this
Agreement up to the full Purchased Amount as the Receipts are created. Payments made to VCG in
respect to the full amount of the Receipts shall be conditioned on Merchant sale of products and services,
and the payment therefore by Merchant’s customers.”
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10. Central to the Merchant Agreement was the requirement that Merchant use only
one bank account to deposit all its Future Receipts (the “Account”). Velocity was authorized to
ACH auto-debit the amounts owed under the Merchant Agreement from the Account. Jd. at p. 1,
§ 1.01, and p. 8 (Authorization Agreement For Direct Deposit (ACH Credit) and Direct
Payments (ACH Debits). The authorization was “irrevocable.” Id. at § 1.01 and p. 8 (“This
Authorization Agreement is to remain in full force and effect.”).
11. In the Merchant Agreement, Merchant and Guarantors agreed, represented,
warrantied and covenanted that:
Merchant has a continuing, affirmative obligation to advise Velocity of any
material adverse change in their financial condition, operation or ownership and
its failure to do so is a material breach. Jd. at § 2.01;
Merchant will not change its Processors, add terminals, change its financial
institution or bank account(s), or take any other action that could have an adverse
effect upon Merchant’s obligations under the Merchant Agreement. Its failure to
do so is a material breach. Jd. at § 2.05; and,
The Receipts are not encumbered or liened by a third party and Merchant will not
“create, incur, assume or permit to exist, directly or indirectly, any lien on or with
respect to any of the Collateral or the Additional Collateral securing Merchant’s
performance.” Jd. at §§ 2.10 and p. 5 (Negative Pledge in Security Agreement).
Merchant diverts its Receipts from the Account or conveys its business or assets
to third parties. Jd. at § 1.12.
12. Section 3.01 of the Merchant Agreement defines Events of Default as including:
Merchant’s violation of any term or covenant in the Merchant Agreement;
a representation made by Merchant in the Agreement is false, incorrect, or
misleading;
Merchant fails to give Velocity twenty-four (24) hours advance notice that there
will be insufficient funds in the account such that the ACH of the Remittance
amount will not be honored by Merchant’s bank, and the Merchant fails to supply
all requested documentation and allow for daily and/or real time monitoring of its
bank account;
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Merchant stops payment to Velocity, or returns a code other than NSF cutting
VCG from its collections;
Merchant uses multiple deposit accounts, changes deposit accounts, or closes the
designated Account without prior written consent of Velocity.
13. If an Event of Default occurs, the full undelivered Purchased Amount plus all fees
and charges assessed under the Merchant Agreement become due and payable in full
immediately, along with Velocity’s attorney’s fees. Jd. at §§ 1.12 (Protection 5), 3.3-3.4, and P.
1. Such fees are fully disclosed in Appendix A — Fee Structure, and include, in the event of a
rejected ACH/Blocked ACH/Default, “$10,000.00 or 10% of the funded amount, or 25% of the
unpaid purchased amount, whichever is greater.” Id. at p. 7, Section F.
14. The Merchant Agreement provides that is governed by New York law.
Furthermore, Merchant expressly agreed that any suit to enforce the agreement may be brought
in “any court sitting in New York,” that Merchant submits to the jurisdiction of such forums, and
that they are convenient. Id. at § 4.5.
15. Merchant also waived personal service of process and agreed to accept service by
e-mail or by certified mail to the addresses set forth on Page 1 of the Merchant Agreement. Jd.
The Personal Guaranty of Performanc
16. The Merchant Agreement includes a Guaranty of Performance (the “Guaranty”)
which provides that defendants Cabinets & More, LLC and Ms. Rodrigues (heretofore, the
“Guarantors”) are liable to Velocity for all amounts owed by Merchant in the Event of Default.
Id. at p. 6. The Guaranty incorporates all the terms, conditions and information set forth in the
Merchant Agreement, including the consent to New York jurisdiction and alternative service of
process set forth in Section 4.05 of the Merchant Agreement.
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Velocity’s Performance and Merchant’s Default
17. The performance history under the Merchant Agreement is annexed hereto as
Exhibit 2 (the “Remittance History”). The Remittance History is a business record maintained in
the ordinary course of business by Velocity and it was Velocity’s regular course of business to
maintain such records at the time of the remittances made under the Merchant Agreement. I
have personal knowledge of its contents.
18. On November 1, 2022, Velocity performed its obligations under the Merchant
Agreement by remitting the Purchase Price to Merchant. Jd.
19. Upon receiving the Purchase Price, Merchant remitted only $282,347.00 in
Receipts to Velocity.
20. After February 7, 2023, Merchant remitted no further Receipts to Velocity. All
attempts to auto-debit the Purchased Percent from the Account were unsuccessful and rejected
by Merchant’s bank. In addition, Merchant placed a stop payment on Velocity’s auto-debits of
the Purchased Percentage, as reflected by the “R08” code on the Remittance History.
21. Merchant never requested a reconciliation under the Merchant Agreement.
Merchant never provided Velocity with Merchant’s bank account statements, credit card
processing statements, and accounts receivable reports. Merchant never advised Velocity that
any Remittances would be rejected for insufficient funds. Merchant also never notified Velocity
of any adverse changes to its financial condition or demonstrated such adverse changes with
account statements or other business records.
22. Merchant also “stacked” the Receipts by selling them, and providing lien rights,
to competing creditors who purchased the same Receipts, as is evidenced by the contracts and
UCC-1 publicly available histories annexed hereto as Ex. 3.
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23, Crediting the $282,347.00 in payments made towards the $695,000.000
Purchased Amount prior to the default, there is a balance due and owing of $412,653.00. The
25% default fee due under Appendix (Section F) of the agreement amounts to $103,163.25,
resulting in a total amount due of $515,816.25.
24. On condition that summary judgment is granted, Velocity waives its cause of
action seeking contractual attorneys’ fees.
WHEREFORE, Plaintiff respectfully requests entry of judgment in its favor, and against
the Defendants, jointly and severally, in the amount of $515,816.25, with statutory interest
thereon at the rate of 9% per annum from February 7, 2023.
a [CU ‘AVIGDOR
to before
me this
2023
c-
fy
Notary
of New York
ovary Publ (01GR6427304
ie is on Expires
O86 a
8 of 8
Preview
INDEX NO. 135394-2023 FILED: ONTARIO COUNTY CLERK 0472872023 07:21 AM ai an" NYSCEF DOC. NO en ra th ys Sea Ontario County Clerk Recording Page Return To Pamela Keefe, Acting County Clerk GABRIEL MENDELBERG Ontario County Clerk 75 Maiden Lane Suite 603 20 Ontario Street New York, NY 10038 Canandaigua, New York 14424 (585) 396-4200 Document Type: AFFIDAVIT OR Receipt Number: 673523 AFFIRMATION IN SUPPORT OF MOTION Plaintiff Defendant VELOCITY CAPITAL GROUP LLC ZOTHEX FLOORING INC Fees Control #: 202304280223 Total Fees Paid: $0.00 Index #: 135394-2023 State of New York County of Ontario EFiling through NYSCEF with a total page count of 8. Rael Hees Acting Ontario County Clerk This sheet constitutes the Clerk's endorsement required by section 319 of the Real Property Law of the State of New York SL Do Not Detach 1 of 8 De°*GN AR OUN i 04 AW INDiSxNO 1353982022 023 NYSCEF BOC. NO. 7 RECEIVED NYSCEF: 04/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONTARIO le VELOCITY CAPITAL GROUP LLC, Index No. 135394-2023 Plaintiff, AFFIDAVIT - against - ZOTHEX FLOORING INC., CABINETS & MORE, LLC, and CLAYTON FERREIRA RODRIGUES, Defendants. ee ee STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) JACOB AVIGDOR, being duly sworn, deposes and says: 1 I am an authorized officer of plaintiff Velocity Capital Group LLC (“Velocity”). As such and based on remittance records maintained by Velocity in the ordinary course of business, I am personally familiar with the facts set forth below. 2 I respectfully submit this affidavit in support of Velocity’s motion for summary judgment on its breach of contract cause of action against defendants Zothex Flooring Inc. (“Merchant”) and breach of personal guaranty cause of action against defendants Cabinets & More LLC and Clayton Ferreira Rodrigues (“Guarantors”) (collectively, the “Defendants”) in the amount of $488,667.50, with statutory interest from February 7, 2023. 3 I supervise collections for Velocity and am a keeper of Velocity’s business records. One of my duties in this position is to review these records and I work with them daily. Each of the documents annexed hereto is a business record maintained in the ordinary course of business and made at the time of the event or transaction by Velocity and it was Velocity’s regular course of business to maintain such records. I have personal knowledge of Velocity’s 2 of 8 De°*GN AR OUN NK 04 AW INDEXeNE 1353949022 023 NYSCEF BOC. NO. 7 RECEIVED NYSCEF: 04/28/2023 record keeping practices and of the documents annexed hereto, including the electronic signature of the agreements at issue by the Defendants through Velocity’s application and e-signature portal. The Merchant Agreement 4. Merchant has breached a Revenue Purchase Agreement dated November 1, 2022 (the “Merchant Agreement”), a true and accurate copy of which, kept in the ordinary course of business by Velocity, is annexed hereto as Exhibit 1. 5 Pursuant to the Merchant Agreement, Merchant sold $695,000.00 (the “Purchased Amount”) of Future Receipts to Velocity for $500,000.00 less disclosed fees and open balance transfers (the “Purchase Price”). Id. at p. 1.! 6 Upon receiving the Purchase Price, Merchant was required to remit 20% (the “Purchased Percent”) of its Receipts until the Purchased Amount was remitted to Velocity in full. Id. at p. 1. i The Merchant Agreement required an initial weekly “Remittance” from Merchant of $21,719.00. Merchant Agreement at p. 1. However, the Remittance was an initial estimate of what the Purchased Percent would generate and was arrived at by Velocity and the Merchant based, in part, on Merchant’s representations concerning its typical revenue stream. Id. (‘The Remittance is a good faith estimate of (a) Purchased Percentage multiplied by (b) the daily average revenues of Seller during the previous calendar month divided by (c) the number of business days in the calendar month.”). 8 To this end, Paragraphs 1.4 of the Merchant Agreement provides: 1 “Receipts” are defined in the agreement as “all of Merchant’s future receipts, contract rights and other entitlements arising from or relating to the payment of monies from Merchant’s customers and/or other third party payors ... for the payments to Merchant as a result of Merchant’s sale of goods and/or services...” Id. at p. 1. 3 of 8 0227] AR OUN NK 04 AW INDBMeNG:.1353942029 023 NYSCEF BOC. NO. 7 RECEIVED NYSCEF: 04/28/2023 If an Event of Default has not occurred, every two (2) calendar weeks after the funding of the Purchase Price to Merchant, Merchant may give notice to VCG to request a decrease in the Remittance. The amount shall be decreased if the amount received by VCG was more than the Purchased Percentage of all revenue of the Merchant since the date of this Revenue Purchase Agreement. The Remittance shall be modified to more closely reflect the Merchant’s actual receipts by multiplying the Merchant’s actual receipts by the Purchased Percentage divided by the number of business days in the previous (2) calendar weeks. Seller shall provide VCG with viewing access to their bank account as well as all information reasonably requested by VCG to properly calculate the Merchant’s Remittance. At the end of the two (2) calendar weeks the Merchant may request another adjustment pursuant to this paragraph or it is agreed that the Merchant’s Remittance shall return to the Remittance as agreed upon on Page | of this Agreement. Id. 9 The Merchant Agreement repeatedly makes clear that it is not a loan, but rather, is a risk-based purchase of future receipts on a percentage basis at a discount with no fixed term for repayment: Merchant is selling a portion of a future revenue stream to VCG at a discount, not borrowing money from VCG; therefore, there is no interest rate or payment schedule and no time period during which the Purchased Amount_must_be ‘collected by VCG. .... VCG is entering this Agreement knowing the risks that Merchant’s business may slow down or fail, and VCG assumes these risks based on Merchant’s representations, warranties and covenants in this Agreement, which are designed to give VCG a reasonable and fair opportunity to receive the benefit of its bargain. Merchant and Guarantor are only guaranteeing their performance of the terms of this Revenue Purchase Agreement and are not guaranteeing the payment of the Purchased Amount. The initial Remittance shall be as described above. The Remittance is subject to adjustments as set forth in Paragraph 1.4. Id. at p. 1 (emphasis added).? 2 Section 1.10 of the Merchant Agreement similarly provides: “Merchant and VCG agree that the Purchase Price under this Agreement is in exchange for the Purchased Amount, and that such Purchase Price is not intended to be, nor shall it be construed as a loan from VCG to Merchant. Merchant agrees that the Purchase Price is in exchange for the Receipts pursuant to this Agreement, and that it equals the fair market value of such Receipts. VCG has purchased and shall own all the Receipts described in this Agreement up to the full Purchased Amount as the Receipts are created. Payments made to VCG in respect to the full amount of the Receipts shall be conditioned on Merchant sale of products and services, and the payment therefore by Merchant’s customers.” 4 of 8 De°*GN AR OUN ih 04 AW INDBMeNG:.1353942029 023 NYSCEF BOC. NO. 7 RECEIVED NYSCEF: 04/28/2023 10. Central to the Merchant Agreement was the requirement that Merchant use only one bank account to deposit all its Future Receipts (the “Account”). Velocity was authorized to ACH auto-debit the amounts owed under the Merchant Agreement from the Account. Jd. at p. 1, § 1.01, and p. 8 (Authorization Agreement For Direct Deposit (ACH Credit) and Direct Payments (ACH Debits). The authorization was “irrevocable.” Id. at § 1.01 and p. 8 (“This Authorization Agreement is to remain in full force and effect.”). 11. In the Merchant Agreement, Merchant and Guarantors agreed, represented, warrantied and covenanted that: Merchant has a continuing, affirmative obligation to advise Velocity of any material adverse change in their financial condition, operation or ownership and its failure to do so is a material breach. Jd. at § 2.01; Merchant will not change its Processors, add terminals, change its financial institution or bank account(s), or take any other action that could have an adverse effect upon Merchant’s obligations under the Merchant Agreement. Its failure to do so is a material breach. Jd. at § 2.05; and, The Receipts are not encumbered or liened by a third party and Merchant will not “create, incur, assume or permit to exist, directly or indirectly, any lien on or with respect to any of the Collateral or the Additional Collateral securing Merchant’s performance.” Jd. at §§ 2.10 and p. 5 (Negative Pledge in Security Agreement). Merchant diverts its Receipts from the Account or conveys its business or assets to third parties. Jd. at § 1.12. 12. Section 3.01 of the Merchant Agreement defines Events of Default as including: Merchant’s violation of any term or covenant in the Merchant Agreement; a representation made by Merchant in the Agreement is false, incorrect, or misleading; Merchant fails to give Velocity twenty-four (24) hours advance notice that there will be insufficient funds in the account such that the ACH of the Remittance amount will not be honored by Merchant’s bank, and the Merchant fails to supply all requested documentation and allow for daily and/or real time monitoring of its bank account; Dt Ol, 6) De°*GN AR OUN NK 04 AW INDEXeNE 1353949022 023 NYSCEF boc NO. 7 RECEIVED NYSCEF: 04/28/2023 Merchant stops payment to Velocity, or returns a code other than NSF cutting VCG from its collections; Merchant uses multiple deposit accounts, changes deposit accounts, or closes the designated Account without prior written consent of Velocity. 13. If an Event of Default occurs, the full undelivered Purchased Amount plus all fees and charges assessed under the Merchant Agreement become due and payable in full immediately, along with Velocity’s attorney’s fees. Jd. at §§ 1.12 (Protection 5), 3.3-3.4, and P. 1. Such fees are fully disclosed in Appendix A — Fee Structure, and include, in the event of a rejected ACH/Blocked ACH/Default, “$10,000.00 or 10% of the funded amount, or 25% of the unpaid purchased amount, whichever is greater.” Id. at p. 7, Section F. 14. The Merchant Agreement provides that is governed by New York law. Furthermore, Merchant expressly agreed that any suit to enforce the agreement may be brought in “any court sitting in New York,” that Merchant submits to the jurisdiction of such forums, and that they are convenient. Id. at § 4.5. 15. Merchant also waived personal service of process and agreed to accept service by e-mail or by certified mail to the addresses set forth on Page 1 of the Merchant Agreement. Jd. The Personal Guaranty of Performanc 16. The Merchant Agreement includes a Guaranty of Performance (the “Guaranty”) which provides that defendants Cabinets & More, LLC and Ms. Rodrigues (heretofore, the “Guarantors”) are liable to Velocity for all amounts owed by Merchant in the Event of Default. Id. at p. 6. The Guaranty incorporates all the terms, conditions and information set forth in the Merchant Agreement, including the consent to New York jurisdiction and alternative service of process set forth in Section 4.05 of the Merchant Agreement. 6 of 8 De°*GN AR OUN NK 04 AW INDAMeNE 135394202 023 NYSCEF BOC. NO. 7 RECEIVED NYSCEF: 04/28/2023 Velocity’s Performance and Merchant’s Default 17. The performance history under the Merchant Agreement is annexed hereto as Exhibit 2 (the “Remittance History”). The Remittance History is a business record maintained in the ordinary course of business by Velocity and it was Velocity’s regular course of business to maintain such records at the time of the remittances made under the Merchant Agreement. I have personal knowledge of its contents. 18. On November 1, 2022, Velocity performed its obligations under the Merchant Agreement by remitting the Purchase Price to Merchant. Jd. 19. Upon receiving the Purchase Price, Merchant remitted only $282,347.00 in Receipts to Velocity. 20. After February 7, 2023, Merchant remitted no further Receipts to Velocity. All attempts to auto-debit the Purchased Percent from the Account were unsuccessful and rejected by Merchant’s bank. In addition, Merchant placed a stop payment on Velocity’s auto-debits of the Purchased Percentage, as reflected by the “R08” code on the Remittance History. 21. Merchant never requested a reconciliation under the Merchant Agreement. Merchant never provided Velocity with Merchant’s bank account statements, credit card processing statements, and accounts receivable reports. Merchant never advised Velocity that any Remittances would be rejected for insufficient funds. Merchant also never notified Velocity of any adverse changes to its financial condition or demonstrated such adverse changes with account statements or other business records. 22. Merchant also “stacked” the Receipts by selling them, and providing lien rights, to competing creditors who purchased the same Receipts, as is evidenced by the contracts and UCC-1 publicly available histories annexed hereto as Ex. 3. 7 of 8 De°*GN AR OUN NK 04 AW INDEXeNE 1353949022 023 NYSCEF BOC. NO. 7 RECEIVED NYSCEF: 04/28/2023 23, Crediting the $282,347.00 in payments made towards the $695,000.000 Purchased Amount prior to the default, there is a balance due and owing of $412,653.00. The 25% default fee due under Appendix (Section F) of the agreement amounts to $103,163.25, resulting in a total amount due of $515,816.25. 24. On condition that summary judgment is granted, Velocity waives its cause of action seeking contractual attorneys’ fees. WHEREFORE, Plaintiff respectfully requests entry of judgment in its favor, and against the Defendants, jointly and severally, in the amount of $515,816.25, with statutory interest thereon at the rate of 9% per annum from February 7, 2023. a [CU ‘AVIGDOR to before me this 2023 c- fy Notary of New York ovary Publ (01GR6427304 ie is on Expires O86 a 8 of 8