Preview
FILED: QUEENS COUNTY CLERK 03/12/2018 12:16 PM INDEX NO. 704769/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/20/2018
2017-08-28 10:27 Wel is Fargo 2393893005 » P 18/40
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
ITRIA VENTURES LLC,
Plaintiff,
Index No.
-against-
KIRK'S CONEY ISLAND INC AFFIDAVIT OF
CONFESSION OF JUDGMENT
and
KlRK ALAN MCFEE
Defendants.
STATE OF )
) ss.:
COUNTY OF )
KlRK ALAN MCFEE , being deposes and says:
duly sworn,
1. I am a principal, owner, and/or member and an officer of
KlRK'S CONEY ISLAND INC ("Merchant a Florida
Defendant"),
Corporation 1o95 Bald Eagle Dr
re M, RCO ISuND,Flo¾,M145
located at , inthe County of
Collier County 1 have the on of
, and as such, authority to act behalf Merchant Defendant.
1095. Bald Eagle Dr sle aa
MARCO ISLAND.Florida.34145
2. I reside at , in the County of
Collier County .
3. I,individually and on behalf of Merchant Defendant, consent to the jurisdiction of the Federal
District Court for the Southern Districtof New York, Supreme Court of the State of New York, New York
County, Supreme Court of the State of New York, Queens County, Supreme Court of the State of New York,
Kings County, Supreme Court of the State of New York, Bronx County, Supreme Court of the Stateof New
York, Richmond County, Supreme Court of theState of Ncw York, Westchester County, Supreme Court of the
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FILED: QUEENS COUNTY CLERK 03/12/2018 12:16 PM INDEX NO. 704769/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/20/2018
2017-08-28 10:26 We l ts Fa r go 2393893005 » P 15/40
State ofNew York, Nassau County, Supreme Court of the State ofNew York, Suffolk County and/or Supreme
of New Courts"
Court the Stateof York, Erie County (collectively,the "Designated Courts").
4. Merchant Defendant hereby confesses judgment and authorizes entry of judgment in favor of
Plaintiffand against Merchant Defendant in (i) the Designated Courts, or (ii) any tribunal in Merchant
Defendant's State of incorporation or formation or where its operations, offices,assets ordomicile are located,
in the sum of S 8,960.00 less amounts delivered to Plaintiffpursuant to the Future
, any timely
Agreement" August 25 2017
Rcccivables Sale Agreement ("Merchant Agreement") dated as of , (the "Contract
Date"
Date"), plus (i) reasonable legalfees to Plaintiff calculated at twenty-five percent (25%) of the total of the
aforesaid amount confessed herein, (ii)costs and disbursements, (iii)Marshal fees,and (iv)interestatthe rate of
sixteen percent (16%) per annum from the date of breach, or the highest amount allowed by law, whichever is
greater. Such amount shallbe set forth in an affidavit
to be executed by Plaintiffor an affirmation by Plaintiff's
Affidavit"
attorney (the "Plaintiff'sAffidavit"), which shallbe filed contemporaneously with thisAffidavit of Confession
Judgment"
of Judgment (this"Confession of Judgment").
5. In addition, as a Guarantor of Merchant Defendant's obligations under the Merchant Agreement
(" Guarantor" (" Guaranty"
("Guarantor") pursuant to a Guaranty of Performance ("Guaranty"), I hereby confess judgment, individually
and personally, jointly and severally, and authorize entry of judgment in favor of Plaintiffand againstme in (i)
the Designated Courts, or (ii)any tribunal (a) inMerchant Defendant's State of incorporation or formation or
where its operations, offices,assets or domicile are located or (b) where any guarantor resides,in the sum of
$ 8,960.00 , less amounts timely delivered to Plaintiffpursuant to the Merchant Agreement, plus
any
Plaintiff'sreasonable legal fees, costs and disbursements, Marshal fees,and interest,in each case as specified
in paragraph 4 above. Such amount shall be setforth in the Plaintiff's Affidavit, which shall be filed
contemporaneously with thisConfession of Judgment.
6. This Confession of Judgment is fora debt due to Plaintiffarising from Merchant Defendant's
material breach of the Merchant Agreement. Such material breach, as detailed in Plaintiff'sAffidavit filed
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FILED: QUEENS COUNTY CLERK 03/12/2018 12:16 PM INDEX NO. 704769/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/20/2018
2017-08-28 10:27 Wel is Fargo 2393893005 » P 16/40
herewith, includes the failure to remit to the
Plaintiff agreed amount of Merchant Defendant's accounts
receivable that were purchased by Plaintiffpursuant to the Merchant Agreement, as set forthin the Plaintiff's
Affidavit. The Confession of Judgment amount set forth in Plaintiffs Affidavit also includes Plaintiffs
reasonable legalfees,costs and disbursements, Marshal fees,and in
interest, each case asspecified in paragraph
4 above, as agreed-upon by Merchant Defendant and each Guarantor under the Merchant Ag:cement and
Guaranty, respectively. My obligations under this Confession of Judgment are further evidenced by a UCC-1
Defendants'
financing statement(s) filedby Plaintiffon Merchant assets.
7. Merchant Defendant and I hereby agree thatthe execution and delivery of this Confession of
Judgment and any entry of judgment thereon shallbe without prejudice to any and allrightsof Plaintiff,who
expressly reserves allof itsrights and remedies againstMerchant Defendants and each Guarantor.
8. If forany reason entry of thisConfession of Judgment or execution on the same isoutside the
jurisdictionof the Designated Courts, Merchant Defendant and I hereby consent to the personal jurisdiction.
entry ofjudgment, and execution thereon in any Stateor Federal Court of the United States ofAmerica.
9. I have been duly authorized by Merchant Defendant to execute and deliverthis Confession of
Judgment.
By:X
<4%
KlRK ALAN MCFEE
individually,and on behalf of
KIRKS CONEY ISLAND INC
Sworn to before me this
day of /. „6 , 2017.
tary Public
glstsaIRam
Q 0%liilssbti
jjyfqg
@pe
CordssionNo.Gs7g:
3
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Preview
FILED: QUEENS COUNTY CLERK 03/12/2018 12:16 PM INDEX NO. 704769/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/20/2018 2017-08-28 10:27 Wel is Fargo 2393893005 » P 18/40 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ITRIA VENTURES LLC, Plaintiff, Index No. -against- KIRK'S CONEY ISLAND INC AFFIDAVIT OF CONFESSION OF JUDGMENT and KlRK ALAN MCFEE Defendants. STATE OF ) ) ss.: COUNTY OF ) KlRK ALAN MCFEE , being deposes and says: duly sworn, 1. I am a principal, owner, and/or member and an officer of KlRK'S CONEY ISLAND INC ("Merchant a Florida Defendant"), Corporation 1o95 Bald Eagle Dr re M, RCO ISuND,Flo¾,M145 located at , inthe County of Collier County 1 have the on of , and as such, authority to act behalf Merchant Defendant. 1095. Bald Eagle Dr sle aa MARCO ISLAND.Florida.34145 2. I reside at , in the County of Collier County . 3. I,individually and on behalf of Merchant Defendant, consent to the jurisdiction of the Federal District Court for the Southern Districtof New York, Supreme Court of the State of New York, New York County, Supreme Court of the State of New York, Queens County, Supreme Court of the State of New York, Kings County, Supreme Court of the State of New York, Bronx County, Supreme Court of the Stateof New York, Richmond County, Supreme Court of theState of Ncw York, Westchester County, Supreme Court of the 1 of 3 FILED: QUEENS COUNTY CLERK 03/12/2018 12:16 PM INDEX NO. 704769/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/20/2018 2017-08-28 10:26 We l ts Fa r go 2393893005 » P 15/40 State ofNew York, Nassau County, Supreme Court of the State ofNew York, Suffolk County and/or Supreme of New Courts" Court the Stateof York, Erie County (collectively,the "Designated Courts"). 4. Merchant Defendant hereby confesses judgment and authorizes entry of judgment in favor of Plaintiffand against Merchant Defendant in (i) the Designated Courts, or (ii) any tribunal in Merchant Defendant's State of incorporation or formation or where its operations, offices,assets ordomicile are located, in the sum of S 8,960.00 less amounts delivered to Plaintiffpursuant to the Future , any timely Agreement" August 25 2017 Rcccivables Sale Agreement ("Merchant Agreement") dated as of , (the "Contract Date" Date"), plus (i) reasonable legalfees to Plaintiff calculated at twenty-five percent (25%) of the total of the aforesaid amount confessed herein, (ii)costs and disbursements, (iii)Marshal fees,and (iv)interestatthe rate of sixteen percent (16%) per annum from the date of breach, or the highest amount allowed by law, whichever is greater. Such amount shallbe set forth in an affidavit to be executed by Plaintiffor an affirmation by Plaintiff's Affidavit" attorney (the "Plaintiff'sAffidavit"), which shallbe filed contemporaneously with thisAffidavit of Confession Judgment" of Judgment (this"Confession of Judgment"). 5. In addition, as a Guarantor of Merchant Defendant's obligations under the Merchant Agreement (" Guarantor" (" Guaranty" ("Guarantor") pursuant to a Guaranty of Performance ("Guaranty"), I hereby confess judgment, individually and personally, jointly and severally, and authorize entry of judgment in favor of Plaintiffand againstme in (i) the Designated Courts, or (ii)any tribunal (a) inMerchant Defendant's State of incorporation or formation or where its operations, offices,assets or domicile are located or (b) where any guarantor resides,in the sum of $ 8,960.00 , less amounts timely delivered to Plaintiffpursuant to the Merchant Agreement, plus any Plaintiff'sreasonable legal fees, costs and disbursements, Marshal fees,and interest,in each case as specified in paragraph 4 above. Such amount shall be setforth in the Plaintiff's Affidavit, which shall be filed contemporaneously with thisConfession of Judgment. 6. This Confession of Judgment is fora debt due to Plaintiffarising from Merchant Defendant's material breach of the Merchant Agreement. Such material breach, as detailed in Plaintiff'sAffidavit filed 2 2 of 3 FILED: QUEENS COUNTY CLERK 03/12/2018 12:16 PM INDEX NO. 704769/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/20/2018 2017-08-28 10:27 Wel is Fargo 2393893005 » P 16/40 herewith, includes the failure to remit to the Plaintiff agreed amount of Merchant Defendant's accounts receivable that were purchased by Plaintiffpursuant to the Merchant Agreement, as set forthin the Plaintiff's Affidavit. The Confession of Judgment amount set forth in Plaintiffs Affidavit also includes Plaintiffs reasonable legalfees,costs and disbursements, Marshal fees,and in interest, each case asspecified in paragraph 4 above, as agreed-upon by Merchant Defendant and each Guarantor under the Merchant Ag:cement and Guaranty, respectively. My obligations under this Confession of Judgment are further evidenced by a UCC-1 Defendants' financing statement(s) filedby Plaintiffon Merchant assets. 7. Merchant Defendant and I hereby agree thatthe execution and delivery of this Confession of Judgment and any entry of judgment thereon shallbe without prejudice to any and allrightsof Plaintiff,who expressly reserves allof itsrights and remedies againstMerchant Defendants and each Guarantor. 8. If forany reason entry of thisConfession of Judgment or execution on the same isoutside the jurisdictionof the Designated Courts, Merchant Defendant and I hereby consent to the personal jurisdiction. entry ofjudgment, and execution thereon in any Stateor Federal Court of the United States ofAmerica. 9. I have been duly authorized by Merchant Defendant to execute and deliverthis Confession of Judgment. By:X <4% KlRK ALAN MCFEE individually,and on behalf of KIRKS CONEY ISLAND INC Sworn to before me this day of /. „6 , 2017. tary Public glstsaIRam Q 0%liilssbti jjyfqg @pe CordssionNo.Gs7g: 3 3 of 3