Preview
FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
MULTIPLIER CAPITAL, L.P.,
Index No.:
Plaintiff,
SUMMONS
-against- Date Index No. Purcha
ADTENTION, LLC,
Defendant.
X
TO THE ABOVE-NAMED DEFENDANT:
YOU ARE HEREBY SUMMONED to answer the Complaint in this
a copy of your answer, or, if the compl=int is not served with this summons, to
appearance, on the Plaintiff's
attorney(s)
within 20 days after the service of this
exolualvo of the
day of service (or within 30 days after the service is complete
not personally delivered to you within the State of New York); and in the case
appear or answer, judgmcñt will be taken against you by default for the relief d
Complaint. Plaintiff designates New York County as the place of trial because,
reasons, a substantial part of the events or omission giving rise to this action occ
New York County, and Def-da=+'s principal place of business is in New York
Dated: New York, New York
July 26, 2019
COHEN TAUBER SPIEVACK & WAGNE
By:
S phen Wagner
1 of 7
ackson S. Davis
FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------X
MULTIPLIER CAPITAL, L.P.,
Index No.:
Plaintiff,
-against- COMPLAINT
ADTENTION, LLC,
Defendant.
--------------------------------------------------------------X
Plaintiff Multiplier Capital, L.P. ("Plaintiff"), as and for its Complaint against AdTention,
LLC ("Defendant"), alleges as follows:
THE PARTIES
1. Plaintiff is a limited partnership duly organized under the laws of Delaware with
an office at 444 Madison Avenue, Suite 1800, New York, New York 10022.
2. Upon information and belief, Defendant is a limited liability company duly
organized under the laws of New Jersey with itsprincipal place of business located at 1501
Broadway, Floor 12, New York, New York.
JURISDICTION AND VENUE
3. Jurisdiction and venue are proper in this Court because a substantial part of the
events or omission giving rise to this action occurred within the State, City, and County of New
York, and Defendant's principal place of business is in New York County.
FACTUAL ALLEGATIONS
4. On or about March 23, 2016, Plaintiff and non-party Altitude Digital Partners,
Inc. ("ADP") entered into a Loan and Security Agreement (the "Original Loan Agreement")
pursuant to which Plaintiff made a loan to ADP in the principal sum of $7,500,000 (the "Loan").
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Pursuant to the Original Loan Agreement, ADP granted Plaintiff a security interest in
substantially all of ADP's assets (the "ADP Collateral"), including but not limited to ADP's
accounts receivable, in order to secure ADP's obligations to Plaintiff. Plaintiff duly perfected its
security interest in the ADP Collateral by filing a financing statement in the appropriate
Secretary of State's office.
5. On or about August 1, 2017, ADP transferred substantially allof its assets to
AdGenesis Holdings, LLC ("AdGenesis") pursuant to an Asset Purchase Agreement (the "ADP
Purchase Agreement").
6. On or about August 1, 2017, concurrently with the ADP Purchase Agreement,
Plaintiff and AdGenesis entered into an Assumption Agreement and Amended and Restated
Loan and Security Agreement (the "Assumption Agreement") whereby AdGenesis (hereinafter
referred to as "Borrower"), as successor in interest to ADP, assumed all obligations of ADP to
Plaintiff under the Original Loan Agreement.
7. Pursuant to the Assumption Agreement, Borrower granted Plaintiff a security
interest in substantially allof Borrower's assets (the "Collateral"), including but not limited to
Borrower's accounts receivable, in order to secure Borrower's obligations to Plaintiff. Plaintiff
duly perfected its security interest in the Collateral by filing a UCC-1 financing statement with
the appropriate Secretary of State's office.
8. Pursuant to the Original Loan Agreement and New York Uniform Commercial
Code ("NY UCC") § 9-607, in the event of default by the Borrower, Plaintiff has the right to
direct account debtors of Borrower, such as Defendant, to make payments directly to Plaintiff.
Additionally, pursuant to NY UCC § 9-607, a secured creditor such as Plaintiff may exercise all
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of Borrower's rights against, and enforce the payment obligations of, account debtors of
Borrower such as Defendant.
9. Borrower defaulted in its obligations under the Original Loan Agreement and the
Assumption Agreement by, among other things, failing to repay loans when due under the
Original Loan Agreement.
10. Because Plaintiff holds a first-priority security interest in Borrower's accounts
receivable and is entitled to exercise Borrower's rights in the Collateral, including the right to
collect Borrower's accounts receivable, Plaintiff has the right to collect funds owed to Borrower
by Defendant.
As And For A First Cause of Action
(Breach of Contract)
11. Plaintiff repeats each and every allegation contained in the foregoing paragraphs
with the same force and effect as if fully set forth herein.
12. Plaintiff is informed and believes and thereon alleges that Defendant and
Borrower entered into an oral agreement (the "Agreement") pursuant to which (a) Borrower
agreed to provide Defendant with digital marketing and advertisement placement services
including, without limitation, the placement of advertising content on websites for Defendant and
its clients, and (b) Defendant agreed to pay Borrower for such services within forty-five (45)
days of Borrower's issuance of invoices therefor.
13. Plaintiff is informed and believes and thereon alleges that, pursuant to the
Agreement, Borrower performed its services as agreed with Defendant, including effecting the
placement of digital marketing and advertising content on websites, and provided several
invoices to Defendant totaling at least $69,063.18, which invoices remain unpaid.
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14. Plaintiff is informed and believes and thereon alleges that Borrower performed its
obligations under the Agreement, except for those obligations excused, waived, or made
impossible by Defendant's actions.
15. The indebtedness currently due and owing by Defendant to Borrower under the
Agreement is in the principal sum of at least $69,063.18 (the "Indebtedness").
16. Defendant has breached itscontract with Borrower by failing to pay the
Indebtedness despite due and adequate demand therefor.
17. Pursuant to the Original Loan Agreement, the Assumption Agreement, and
applicable law, Plaintiff is entitled to collect Borrower's accounts receivable, including the
Indebtedness from Defendant.
18. By reason of Defendant's breach of the Agreement and failure to pay Borrower as
Plaintiff is entitled to recover from Defendant $69,063.18 plus pre- and post-judgment
agreed,
interest thereon calculated at the maximum legal rate.
As And For A Second Cause of Action
(Account Stated)
19. Plaintiff repeats each and every allegation contained in the foregoing paragraphs
with the same force and effect as if fully set forth herein.
20. Plaintiff is informed and believes and thereon alleges that within the past three (3)
years, an account was stated in writing by and between Borrower and Defendant wherein and
whereby itwas agreed that Defendant was indebted to Borrower in the principal sum of
$69,063.18, plus accruing interest.
21. Defendant received invoices from Borrower reflecting the Indebtedness on or
about the date they were sent.
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22. Additionally, by letterdated October 22, 2018 (the "Demand Letter"), Plaintiff
notified Defendant of itsstatus as a first-priority secured creditor of AdGenesis and demanded
Defendant pay Plaintiff the amount Defendant owed AdGenesis.
23. At no time did Defendant object to the invoices or Demand Letter, nor did it
complain about the services provided by Borrower.
24. Despite receipt of the invoices and the Demand Letter, Defendant has not remitted
the amounts due to Borrower or Plaintiff.
25. Therefore, an account has been stated.
26. Pursuant to the Original Loan Agreement, the Assumption Agreement, and
applicable law, Plaintiff has a legal right to collect the Indebtedness due to Borrower from
Defendant.
27. Accordingly, Plaintiff is entitled to recover from Defendant the sum of
$69,063.18 plus pre- and post-judgment interest thereon calculated at the maximum legal rate.
As And For A Third Cause of Action
(Quantum Meruit)
28. Plaintiff repeats each and every allegation contained in the foregoing paragraphs
with the same force and effect as if fully set forth herein.
29. At the specific instance, request, and direction of Defendant, Borrower performed
services on behalf of Defendant.
30. The fullvalue of the services that has not yet been paid for is $69,063.18.
31. Pursuant to the Original Loan Agreement, the Assumption Agreement, and
applicable law, Plaintiff has a legal right to collect the Indebtedness due to Borrower from
Defendant.
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32.
By reason of the foregoing, Dafanda=+has been unjustly enriched,
damaged, and Plaintiff is entitled to recover from Defendant the sum of $69,063.18
post-judgment interest thercan calculated at the maximum legal rate.
WHEREFORE, Plaintiff Multiplier Capital, L.P.
respectfully
requests
enter judgmcñt in its favor and against Defendant:
(i)
on the First Cause of Action, in the ament of $69,063.18, with
judgment interest thereon calculated at the maximum legal rate;
(ii)
on the Second Cause of Action, in the amount of $69,063.18, with
judgmcñt interest thereon calculated at the maximum legal rate;
(iii)
on the Third Cause of Action, in the amount of $69,063.18, with
judgment interest thereon calculated at the maximum legal rate;
(iv)
for such other and further relief as this Court deems just and proper
Dated: New York, New York
July 26, 2019
COHEN TAUBER SPIEVACK & WAGNE
By:
St en Wagner
,dckson S. Davis
Caroline F.
Corley
7 of 7
420 Lexington Suite 2400
Preview
FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X MULTIPLIER CAPITAL, L.P., Index No.: Plaintiff, SUMMONS -against- Date Index No. Purcha ADTENTION, LLC, Defendant. X TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the Complaint in this a copy of your answer, or, if the compl=int is not served with this summons, to appearance, on the Plaintiff's attorney(s) within 20 days after the service of this exolualvo of the day of service (or within 30 days after the service is complete not personally delivered to you within the State of New York); and in the case appear or answer, judgmcñt will be taken against you by default for the relief d Complaint. Plaintiff designates New York County as the place of trial because, reasons, a substantial part of the events or omission giving rise to this action occ New York County, and Def-da=+'s principal place of business is in New York Dated: New York, New York July 26, 2019 COHEN TAUBER SPIEVACK & WAGNE By: S phen Wagner 1 of 7 ackson S. Davis FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------X MULTIPLIER CAPITAL, L.P., Index No.: Plaintiff, -against- COMPLAINT ADTENTION, LLC, Defendant. --------------------------------------------------------------X Plaintiff Multiplier Capital, L.P. ("Plaintiff"), as and for its Complaint against AdTention, LLC ("Defendant"), alleges as follows: THE PARTIES 1. Plaintiff is a limited partnership duly organized under the laws of Delaware with an office at 444 Madison Avenue, Suite 1800, New York, New York 10022. 2. Upon information and belief, Defendant is a limited liability company duly organized under the laws of New Jersey with itsprincipal place of business located at 1501 Broadway, Floor 12, New York, New York. JURISDICTION AND VENUE 3. Jurisdiction and venue are proper in this Court because a substantial part of the events or omission giving rise to this action occurred within the State, City, and County of New York, and Defendant's principal place of business is in New York County. FACTUAL ALLEGATIONS 4. On or about March 23, 2016, Plaintiff and non-party Altitude Digital Partners, Inc. ("ADP") entered into a Loan and Security Agreement (the "Original Loan Agreement") pursuant to which Plaintiff made a loan to ADP in the principal sum of $7,500,000 (the "Loan"). {00390660.DOCX; 2} 2 of 7 FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019 Pursuant to the Original Loan Agreement, ADP granted Plaintiff a security interest in substantially all of ADP's assets (the "ADP Collateral"), including but not limited to ADP's accounts receivable, in order to secure ADP's obligations to Plaintiff. Plaintiff duly perfected its security interest in the ADP Collateral by filing a financing statement in the appropriate Secretary of State's office. 5. On or about August 1, 2017, ADP transferred substantially allof its assets to AdGenesis Holdings, LLC ("AdGenesis") pursuant to an Asset Purchase Agreement (the "ADP Purchase Agreement"). 6. On or about August 1, 2017, concurrently with the ADP Purchase Agreement, Plaintiff and AdGenesis entered into an Assumption Agreement and Amended and Restated Loan and Security Agreement (the "Assumption Agreement") whereby AdGenesis (hereinafter referred to as "Borrower"), as successor in interest to ADP, assumed all obligations of ADP to Plaintiff under the Original Loan Agreement. 7. Pursuant to the Assumption Agreement, Borrower granted Plaintiff a security interest in substantially allof Borrower's assets (the "Collateral"), including but not limited to Borrower's accounts receivable, in order to secure Borrower's obligations to Plaintiff. Plaintiff duly perfected its security interest in the Collateral by filing a UCC-1 financing statement with the appropriate Secretary of State's office. 8. Pursuant to the Original Loan Agreement and New York Uniform Commercial Code ("NY UCC") § 9-607, in the event of default by the Borrower, Plaintiff has the right to direct account debtors of Borrower, such as Defendant, to make payments directly to Plaintiff. Additionally, pursuant to NY UCC § 9-607, a secured creditor such as Plaintiff may exercise all {00390660.DOCX; 2} 2 3 of 7 FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019 of Borrower's rights against, and enforce the payment obligations of, account debtors of Borrower such as Defendant. 9. Borrower defaulted in its obligations under the Original Loan Agreement and the Assumption Agreement by, among other things, failing to repay loans when due under the Original Loan Agreement. 10. Because Plaintiff holds a first-priority security interest in Borrower's accounts receivable and is entitled to exercise Borrower's rights in the Collateral, including the right to collect Borrower's accounts receivable, Plaintiff has the right to collect funds owed to Borrower by Defendant. As And For A First Cause of Action (Breach of Contract) 11. Plaintiff repeats each and every allegation contained in the foregoing paragraphs with the same force and effect as if fully set forth herein. 12. Plaintiff is informed and believes and thereon alleges that Defendant and Borrower entered into an oral agreement (the "Agreement") pursuant to which (a) Borrower agreed to provide Defendant with digital marketing and advertisement placement services including, without limitation, the placement of advertising content on websites for Defendant and its clients, and (b) Defendant agreed to pay Borrower for such services within forty-five (45) days of Borrower's issuance of invoices therefor. 13. Plaintiff is informed and believes and thereon alleges that, pursuant to the Agreement, Borrower performed its services as agreed with Defendant, including effecting the placement of digital marketing and advertising content on websites, and provided several invoices to Defendant totaling at least $69,063.18, which invoices remain unpaid. {00390660.DOCX; 2} 3 4 of 7 FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019 14. Plaintiff is informed and believes and thereon alleges that Borrower performed its obligations under the Agreement, except for those obligations excused, waived, or made impossible by Defendant's actions. 15. The indebtedness currently due and owing by Defendant to Borrower under the Agreement is in the principal sum of at least $69,063.18 (the "Indebtedness"). 16. Defendant has breached itscontract with Borrower by failing to pay the Indebtedness despite due and adequate demand therefor. 17. Pursuant to the Original Loan Agreement, the Assumption Agreement, and applicable law, Plaintiff is entitled to collect Borrower's accounts receivable, including the Indebtedness from Defendant. 18. By reason of Defendant's breach of the Agreement and failure to pay Borrower as Plaintiff is entitled to recover from Defendant $69,063.18 plus pre- and post-judgment agreed, interest thereon calculated at the maximum legal rate. As And For A Second Cause of Action (Account Stated) 19. Plaintiff repeats each and every allegation contained in the foregoing paragraphs with the same force and effect as if fully set forth herein. 20. Plaintiff is informed and believes and thereon alleges that within the past three (3) years, an account was stated in writing by and between Borrower and Defendant wherein and whereby itwas agreed that Defendant was indebted to Borrower in the principal sum of $69,063.18, plus accruing interest. 21. Defendant received invoices from Borrower reflecting the Indebtedness on or about the date they were sent. {00390660.DOCX; 2} 5 of 7 FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019 22. Additionally, by letterdated October 22, 2018 (the "Demand Letter"), Plaintiff notified Defendant of itsstatus as a first-priority secured creditor of AdGenesis and demanded Defendant pay Plaintiff the amount Defendant owed AdGenesis. 23. At no time did Defendant object to the invoices or Demand Letter, nor did it complain about the services provided by Borrower. 24. Despite receipt of the invoices and the Demand Letter, Defendant has not remitted the amounts due to Borrower or Plaintiff. 25. Therefore, an account has been stated. 26. Pursuant to the Original Loan Agreement, the Assumption Agreement, and applicable law, Plaintiff has a legal right to collect the Indebtedness due to Borrower from Defendant. 27. Accordingly, Plaintiff is entitled to recover from Defendant the sum of $69,063.18 plus pre- and post-judgment interest thereon calculated at the maximum legal rate. As And For A Third Cause of Action (Quantum Meruit) 28. Plaintiff repeats each and every allegation contained in the foregoing paragraphs with the same force and effect as if fully set forth herein. 29. At the specific instance, request, and direction of Defendant, Borrower performed services on behalf of Defendant. 30. The fullvalue of the services that has not yet been paid for is $69,063.18. 31. Pursuant to the Original Loan Agreement, the Assumption Agreement, and applicable law, Plaintiff has a legal right to collect the Indebtedness due to Borrower from Defendant. {00390660.DOCX; 2} 5 6 of 7 FILED: NEW YORK COUNTY CLERK 07/26/2019 04:32 PM INDEX NO. 654296/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2019 32. By reason of the foregoing, Dafanda=+has been unjustly enriched, damaged, and Plaintiff is entitled to recover from Defendant the sum of $69,063.18 post-judgment interest thercan calculated at the maximum legal rate. WHEREFORE, Plaintiff Multiplier Capital, L.P. respectfully requests enter judgmcñt in its favor and against Defendant: (i) on the First Cause of Action, in the ament of $69,063.18, with judgment interest thereon calculated at the maximum legal rate; (ii) on the Second Cause of Action, in the amount of $69,063.18, with judgmcñt interest thereon calculated at the maximum legal rate; (iii) on the Third Cause of Action, in the amount of $69,063.18, with judgment interest thereon calculated at the maximum legal rate; (iv) for such other and further relief as this Court deems just and proper Dated: New York, New York July 26, 2019 COHEN TAUBER SPIEVACK & WAGNE By: St en Wagner ,dckson S. Davis Caroline F. Corley 7 of 7 420 Lexington Suite 2400