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10-0183
MEMO MONEY OFfflR ' / ORDER COMPANY, INC. PLAINTIFF V. Nargis Qamruddin Mithani Individually, jointly and severally, DEFENDANT and Jawed Anwer Ali Individually, jointly and severally, DEFENDANT and Baima, Inc., doing business as Taco Loco & Grocery Corporation DEFENDANT 2009 No. a0/D - G???.3 Lim CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the compliant filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff and against the Defendants as follows: Principal: $ 15,124.26 Interest: $ 1,580.49 Lost Fee Income: $ 5,183.36 Attorney Fees: $ 6,566.43 Total: $ 28,454.54 COURT OF COMMON PLEAS, CUMBERLAND COUNTY Kevi . Lutkins, Esq. Attorney for Defendants MEMO MONEY ORDER ORDER COMPANY, INC. PLAINTIFF V. Nargis Qamruddin Mithani Individually, jointly and severally, DEFENDAN'T' and Jawed Anwer Ali Individually, jointly and severally, DEFENDANT : and Baima, Inc., doing business as Taco Loco & Grocery Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY No. NOTICE 2009 NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE-CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU. PROTHONOTARY 1A1, If you have any questions concerning the above, please contact: Kevin M. Lutkins, Esq. Merchants Express Money Order Company 1029 Mumma Road P.O. Box 8863 Camp Hill, PA 17001-8863 (800) 543-8207 MEMO MONEY ORDER ORDER COMPANY, INC. PLAINTIFF V. Nargis Qamruddin Mithani Individually, jointly and severally, DEFENDANT and Jawed Anwer Ali Individually, jointly and severally, DEFENDANT and Baima, Inc., doing business as Taco Loco & Grocery Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY 2009 No. Jv" IK3 cNW1 COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY COUNT I - CONFESSION OF JUDGMENT (MEMO V. BAIMA, MATAANI AND ALIT 1. Plaintiff is MEMO Money Order Company, Inc., hereinafter "MEMO"), a Pennsylvania corporation wholly owned by Merchants Express Money Order Company, Inc., that engages in the issuance and sale of money orders and whose address is 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043. 2. Defendant Baima, Inc. (hereinafter `Baima"), is a corporation located at 547 Brown Trail, Hurst, Texas 76053 and doing business as Taco Loco & Grocery 3. Defendant Nargis Qamruddin Mithani (hereinafter "Mathani"), is an individual residing at 500 E. Harwood Road, #4004, Euless, Texas 76039. 4. Defendant Jawed Anwer Ali (hereinafter "Ali"), is an individual residing at 500 E. 4Iarwood Road, #4004, Euless, Texas 76039. 5. Defendants Mathani and Ali are the owners and/or operators of Defendant BADAA and entered into the Trust Agreement on behalf of said Defendant BAIMA and themselves on or about June 1, 2008. A true and correct copy of the Trust Agreement under which Defendants Mathani, Ali and BAIMA are confessing judgment is attached hereto as Exhibit "A". 6. Defendant Mathani and Ali, with the intent to induce MEMO to enter into a Trust Agreement with Defendant BAIMA, agreed to personally guaranty the obligations of Defendant BAIMA. A true and correct copy of the Personal Indemnity and Guaranty under which Defendant Mathani and Ali is confessing judgment is attached hereto as Exhibit "B". 7. The forgoing judgment against Defendants Mathani and Ali and BAIMA, is not being entered by confession against a natural person in connection with a consumer credit transaction. 8. The Plaintiff has not assigned the Trust Agreement and Personal Indemnity and Guaranty under which judgment is being confessed. 9. The Plaintiff has not entered judgment against Defendants in any jurisdiction for the unpaid sum of $28,454.54 or any additional amount for a total of the debt demanded here. 10. The Defendants jointly and severally acted as selling agents for Plaintiff from June 17, 2008 until July 7, 2009. 11. Pursuant to the Trust Agreement, Defendants are required to hold all monies received by them from the sale of money orders, including money order fees (hereinafter "trust funds"), separate and apart from other funds of the Defendant for collection by the Plaintiff through electronic or other means. 12. The Plaintiff attempted to collect the trust funds from Defendants on June 4, 2009 through an Automated Clearing House (hereinafter "ACH") method. 13. The Plaintiff, or its designated check-clearing banking center did not receive the payment of the trust funds on June 29, 2009, as required by the Trust Agreement. 14. The failure of Plaintiff or its designated check-clearing banking center to receive trust funds from the Defendant in accordance with the Trust Agreement constitutes an event of default allowing Plaintiff to enter judgment against Defendants. 15. Pursuant to the Trust Agreement, the Plaintiff suffered damages by the Defendants conduct as follows: Principal: $ 15,124.26 Interest: $ 1,580.49 Lost Fee Income: $ 5,183.36 Attorney Fees: $ 6,566.43 Total: $ 28,454.54 16. The Defendants' most recent 10-week sales average equaled 208 money orders causing Plaintiff Lost Fee Income of $5,183.36 as a result of Defendants' default. 17. Plaintiff demands judgment in the aforementioned amount as authorized by the Warrant of Attorney contained in the Trust Agreement attached hereto as Exhibit A. 18. The Warrant of Attorney contained in the Trust Agreement is less than twenty (20) years old. WHEREFORE, Plaintiff demands judgment in the amount of $28,454.54, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT II - BREACH OF CONTRACT (MEMO V. BAIMA. MATHANI AND ALD 19. The averments set forth in paragraphs 1 through 17 are incorporated by reference as if set forth in full herein. 20. Defendant Mathani and Ali signed the above referenced Trust Agreement, and the documents appended thereto, on behalf of The BAIMA. 21. Defendant Mathani and Ali also signed the above-reference Personal Indemnity and Guaranty Agreement, pursuant to which he made himself personally liable for any default by The BAIMA under the Trust Agreement. 22. The failure of Mathani and Ali to remit the trust funds is a violation of the terms and provisions of the Trust Agreement, and in addition, is a breach of the fiduciary relationship created by the Trust Agreement. WHEREFORE, Plaintiff demands judgment in the amount of $28,454.54, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT III - BREACH OF FIDUCUARY DUTY (MEMO V. BAIMA. MATHANI AND ALD 23. The averments set forth in paragraphs 1 through 21 are incorporated by reference as if set forth in full herein. 24. The Trust Agreement created fiduciary obligations owed by the Defendant to the Plaintiff. 25. In breach of their fiduciary obligations, Defendant Mathani and Ali: a. Failed to hold the trust finds in trust, as property of Plaintiff; b. Deprived Plaintiff of the use and benefits of its money; c. Failed to make the required payments or dispositions of trust funds to Plaintiff; d. Commingled the trust funds with those of their own; and e. Appropriated the trust funds for their own use and benefit, or elsewhere. 26. Defendant performed all of the above actins intentionally, willfully, maliciously, and with wanton disregard for the rights of Plaintiff. 27. Defendant's actions, as enumerated above, constitute a breach of fiduciary duty to Plaintiff under the laws of the Commonwealth of Pennsylvania and the terms of the Trust Agreement. WHEREFORE, Plaintiff demands judgment in the amount of $28,454.54, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT IV - CONVERSION (NUMO V. BAIMA. MATHANI AND ALD 28. The averments set forth in paragraphs 1 through 26 are incorporated by reference as if set forth in full herein. 29. Plaintiff avers, on information and belief, that Defendant Mathani and Ali converted the trust funds owed Plaintiff to his own personal uses. 30. Defendant Mathani and Ali's personal use of the trust funds and thus his intentional deprivation of the use and benefit of the trust funds properly due and owing Plaintiff, constitutes conversion under the laws of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiff demands judgment in the amount of $28,454.54, as authorized by the Warrant appearing in the attached Trust Agreement, together with interest from the date of judgment and costs. COUNT V - UNJUST ENRICHMENT (1V?'M0 v. BAIMA. MATHANI AND ALI) 31. The averments set forth in paragraphs 1 through 29 are incorporated by reference as if set forth in full herein. 32. Plaintiff avers, upon information and belief, that Defendant wrongfully retained the trust funds. 33. Plaintiff conferred the benefit of the use of the money orders and other property upon the Defendant and said Defendant appreciated, accepted and retained such benefits. 34. The Defendant's retention of the benefits conferred by Plaintiff without paying the value of such benefits would be inequitable and unjust. 35. As a result of Defendant's retention of the trust funds and/or Plaintiff's other property, Defendant has damaged Plaintiff while unjustly enriching himself in the amount set forth above together with the value of the property retained, and the benefits conferred upon Defendant as a result of the use of the money orders and property, plus interest and costs. WHEREFORE, Plaintiff demands judgment in the amount of $28,454.54, as authorized by the Warrant appearing in the attached Trust Agreement, together with interest from the date of judgment and costs. COUNT VI CLAIM FOR POSSESSION OF PROPERTY AND TRUST FUNDS (MEMO V. BAIMA. MATHANI AND AL 36. The averments set forth in paragraphs 1 through 34 are incorporated by reference as if set forth in full herein. 37. The Trust Agreement clearly states that all money orders and trust funds are Plaintiff s property. 38. The terms of the Trust Agreement require the Defendant to segregate and hold apart, all trust funds and/or proceeds from the sale of money orders. 39. The terms of the Trust Agreement clearly state that all non-trust funds and/or property commingled with trust funds and/or proceeds are impressed with a trust for the Plaintiff s benefit. 40. By operation of law, Plaintiff is the owner and Defendant is the trustee for all assets so commingled. 41. Despite Plaintiff s demand for return of the trust funds and other property, Defendant refused to remit the trust funds and other property impressed with a trust by operation of law to Plaintiff in violation of the Trust Agreement. wBEREFORE, Plaintiff demands judgment in the amount of $28,454.54, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. Kevin Outkins, Esq. Attorney for Plaintiff Attorney ID: 76859 .?? Date: VERIFICATION The undersigned individual hereby states that he/she is an employee of the Pennsylvania Food Merchants Association with the authority to verify the statements contained in the foregoing complaint involving MEMO Money Order Company, Inc., a wholly owned subsidiary of Merchants Express Money Order Company, Inc., a Pennsylvania corporation and wholly owned subsidiary of the Pennsylvania Food Merchants Association. The undersigned individual also states that the statements made in the aforementioned complaint are true and correct to the best of his/her knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. Cons. Stat. §4904 relating to unsworn falsifications to authorities. Daniel C. Oliva MEMO MONEY ORDER ORDER COMPANY, INC. PLAINTIFF V. Nargis Qamruddin Mithani Individually, jointly and severally, DEFENDANT : and Jawed Anwer Ali Individually, jointly and severally, DEFENDANT and Baima, Inc., doing business as Taco Loco & Grocery Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY No. 2009 AFFIDAVIT OF ADDRESSES COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND The undersigned being duly sworn according to law, deposes and states that he is an employee of the Pennsylvania Food Merchants Association with the authority to make this Affidavit on behalf of the Plaintiff, MEMO Money Order Company, Inc. The undersigned also states that the address of the Plaintiff is: 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043 and that the addresses of the Defendants are as follows: BAIMA, Inc. 547 Brown Trail Hurst, TX 76053 SWORN to and scribed before met 's ?O , day of 2009. N?aryi is Jawed Anwer Ali 500 E. Harwood Rd #4004 Euless, TX 76039 G Dani2-Irf. Oliva COMMONWEAL ii _OF PENNSYLVANIA Nagris Qamruddin Mithani 500 E. Harwood Rd #4004 Euless, TX 76039 Notarial Seal Jennifer R. Hamelin, Notary Public Wormleysburg Boro, Cumberland County My Commission Expires July 12, 2012 Member, Pennsylvania Association of Notaries A MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. / MEMO MONEY ORDER COMPANY, INC. MEMO MONEY ORDER COMPANY OF NEW YORK, INC. / MERCHANTS )CRESS USA, INC. PERSONAL MONEY ORDER TRUST AGREEMENT THIN AGREEMENT is made between \(ERCI ANTS EXT'RESS MONEY ORDER COMPANY, INC. d/b/a %IFMC,,,IIEi1f0 MONEY ORDER COINWANY, INC. d/b/a NfENIO, PennsvIvam Corporations or MEMO MONEY ORDER COMPANY OF NEW YORK, INC., d/b/a MEMO, a New York Corporation, ERCHANTN EXTRESS USA, INC. d/b/a MEMO, or any subsidiary d/b/a/ MENIO (`N'(EMO") and the individual(s) and/or entities identified below, hereafter referred to as Trustee(s). In consideration of the mutual promises contained in this agreement and intending to be legally bound hereby, the parties agree as follows: 1. Agency. MEMO appoints Trustee to act as a special agent of N EMC) at each of T ustee's retail establishments approved for the sale of money orders issued by MEMO. It is expressly agreed that MEMO and 'trustee shall be independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture or agency (other than as expressly described herein). N either NIEN40 nor Trustee shall have the authority to make any statements, representations or comrrntments of any kind, or take any action, which shall be binding on the other, without the prior written consent of the other Pam'. Trustee accepts such appointment in accordance with the teals and conditions specified in this Agreement and in the attached Rider herein incorporated and made a part hereof. 2 Trust Relationship. Trustee shall receive and hold in must for NJEMO all blank money orders delivered to Trustee by MEM0 and all money received by Trustee from the sale of money orders, including without limitation the money order fees established by MEMO from time to time ("trust fiords"). Trustee shall hold the trust fiords separate and apart from other hmds of Trustee. The failure of Trustee to hold trust funds separate and apart from any other funds of the Trustee shall, at the option of MEMO, be a breach of this Agreement entitling MEMO to immediate possession of any account or aco:)unts into which hinds received for money order sales from consumes have been deposited and such other remedies, including temnnatmn of this Agreement' t'5 are provided for herein. 3. Money Order Fees. In consideration of the services rendered to Trustee by MEMO, Trustee shall pay MEMO a fee ("Mooney Order Fees' specified in the attached rider. Money Order Fees may be modified by MENIO at any time upon thirty (30) days prior notice to Trustee. 4. Materials Supplied by MEMO. For the sole purpose of selling money orders pursuant to this Agreement, MEMO will supply Trustee with the following A. An adequate supply of senallv numbered blank money orders. B. An agency installation kit containing the supplies and training material required to implement and maintain a money order agency. C. A money order imprinter of the quality necessary to imprint the money order dollar value firmly into the money order so as to inhibit the alteration of any item The money order dispenser shall be programmed by MEMO to indicate Trustee I.D. number on imprinted money orders. Such money order impninte:rs shall at all times continue to be the sole property of MEMO and shall not be removed from the Trustee's retail establishment where it was originally installed by MEMO. Any other money order dispensers not owned by MEMO and used by Trustee to imprint money orders must be approved by MEMO. D. Regulatory postings, signs, posters, window decals and other promotional materials; all of which Trustee agrees to display at all times. 5. Right to an Accounting. Notwithstanding any other provision of this Agreement, MEMO shall have the right; at all reasonable times, with or without notice, to access Trustee's premises and to inspect and perform an accounting of, or cause its employees or agents to inspect and perform an accounting of, the casts receipts, Money Order Fees, the accounting (store) copies of money orders sold if applicable, daily sales report and the Trustee's inventory of unissued money orders. A charge will be assessed against Trustee to recover expenses incurred by MEMO when an audit is made due to Trustee's breach of this Agreement or if the audit discloses a breach. (See audit fee/penalty fee schedule). 6. Rules and Regulations. Trustee shall comply with the following rules and regulations: \. No money order shall be issued or sold to anyone in payment of any obligation of Trustee or used in any manner for Trustee's own purposes, except as allowed by MEMO. B. Only cash shall be accepted as payment for money orders issued or sold. No check or other paper transmitted or deposited by Trustee to or for MEMO shall constitute a remittance to MEMO until actually collected, MEMO to have the option in each case as to whether to deposit an y such paper for collection. C. Trustee shall safeguard all unissued money orders and the money order imprinter with the highest degree of care The care exercised in regard to money orders shall be at least as that applicable to cash. Trustee shall report to MEMO the serial number of each money order stolen or missing, and all other information relating to the eve nu immediately upon discovery of the fact, but in any event not later than twenty-four (24) hours prior to the money orders being presented for payment to MEMO so that payment can be stopped on such missing or stolen money orders. Such report shall be by telephone and irrnnediately confirmed in writing. Trustee shall be solely responsible for all losses ansing from, and shall indemnify MEMO and hold harmless regarding any and all stolen or missing money orders as well as any money order imprmters issued to Trustee. Furthermore, Tnnstee shall be responsible for repair or replacement of any issued money order dispensers stolen or damaged as a result of misuse, negligence, abuse, fire or otherwise. Said responsibility and liability of Trustee shall not be limited by T'rustee's compliance with the safeguarding, care, and reporting obligations set forth in this paragraph. D. Trustee shall at all times maintain a sound financial position and provide current financial information to MEMO as requested by MEMO. Trustee shall conduct operations so that the fiends generated from the sale of money orders will not be in jeopardy nor seem in the opinion of a reasonable person to be in jeopardy and shall cease the issuance of money orders and notify MEMO immediately, should such jeopardy arise Notification to MEMO shall be made promptly by telephone and immediately confirmed in writing. "Sound Financial Condition" shall mean that these has been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of the Trustee and that neither Trustee or any Guarantor has become insolvent, generally unable to pay its debts as they become due, involuntarily suspended transaction of its business, made a general assignment for the benefit of creditors, instituted a proceeding described in paragraph 7B or consented to any such order for relief, declaration, finding or relief described therein, institute a proceeding described in Paragraph 7B or consented to any such appointment or to the taking of possession by any such official or all or any substantial part of its property, whether or not any such proceeding is instituted, or has taken any action in furtherance of any of the foregoing. A lack of sound financial condition shall also include when Trustee fails to pay, on the date which the same is due, any sum payable hereunder or fails to pay its creditors generally or makes representations to MEMO or to other creditors that it must delay any such payment under conditions which, in the sole discretion of MEMO, it appears that Trustee is no longer in a sound financial condition. E. Trustee shall provide MEMO by facsimile'transmittal or registered mail three (3) weeks advance notice of proposed change(s) in the ownership of either Trustee's business, the management of Trustee's business, the sale of fifty-one percent (51%) or more of Trustee's assets, or the entry into or termination of business affiliated with Trustee. Transactions included within this paragraph 6(E) include transfer of stock of Trustee, sale of partnership, interests, Limited Liability Company or partnership's interest or any similar transaction which effects a change in ownership or control of Trustee. No such transaction shall be approved until any successor entity, if any, has entered into appropriate documentation, including a trust agreement. No transaction, discussed in this subparagraph, shall be effective without the prior written approval of MEMO. ,any attempt by Trustee to effect such a transaction without MEMO approval shall be void, ab initio as to MEMO. If Trustee fails to give such notification, Trustee, as well as its successor, shall remain liable for the payment of all sums and the performance of all duties required by the Agreement. Any change of ownership or other assignment within the meaning of this paragraph shall bind Trustee's successor or assignee to the terms and conditions of this Agreement. F. At all of Trustee's retail establishment including those newly opened or acquired, Trustee shall sell only MEMO money orders. Trustee must provide MEMO with at lease 90 days notice of its intent to dose its current retail location and to reopen at another location G. Trustee shall sell MEMO money orders only at Trustee's specifically approved places of business or future place of business as approved by MEMO. Trustee shall not appoint and /or offer the services at or to any entity not a party to this agreement Ff. Trustee shall remain open during the course of nom-W business hours for the duration of this agreement Failure to do so shall constitute a breach of this agreement I. No funds received by Trustee shall be subject to attachment, levy of execution, or sequestration by order of any court, except for the benefit of MEMO. J. Trustee is prohibited from unauthorized use of MEMO's name, logo, trademark and/or service mark without MEMO's prior written consent Term of Agreement The term of this Agreement shall run for a penod of five (5) years from the date of this Agreement and shall renew automatically for successive five (5) year periods. After the initial five-vear term of this Agreement, Trustee may terminate this Agreement upon six (6) months prior written notice to MEMO, and MEMO may terminate this Agreement upon sixty (0)) days prior written nonce to Trustee. In the event Trustee does not provide proper termination notice, Trustee shall be responsible for lost fee intone to MEMO for the duration of the contract in effect Fee income shall be calculated using Trustees most recent 10-week sales average. Notwithstanding the foregoing, MEMO may temvnate this Agreement at any time, or any location covered by this agreement, immediately and without notice, and/or enter judgment according to the provisions of Paragraph 11 hereof, upon the happening of any of the following events: A. NIE.MO or its designated check-clearing banking center does not receive the accounting documentation or payment of trust funds (including money order sales proceeds and money order fees), %vithin the time period and on the terms specified in the Rider to this Agreement B. Trustee or anv Guarantor commits any act of insolvency, or upon the filling by Trustee or any Guarantor of any petition under any bankruptcy, reorganization, insolvency, or moratorium law, or anv law for the relief or, or relating to debtors; or the filling of any involuntary petition against Trustee under any bankruptcy statute, or the appointment of a receiver or trustee to take or sale fro or by any creditor or governmental agency. possession of the property or assets of Trustee; or the subjection of any Trustee's property or assets to anv levy, seizure, assignment C. The non-performance by Trustee of any obligations of Trustee pursuant to this Agreement The happening of any of the foregoing events shall be a default under Boris Agreement and, without any notice from MEMO, constitute a default under any and all agreements of Trustee: and/or Trustee's g uarantor(g) with anv other related company. In the event MEMO terminates this agreement due to a default, Trustee shall be responsible for lost fee income to NlEM0 for the duration> Termination. Upon the espira ion or termination of this Agreement, Trustee immediately shall deliver to :MEMO all cash receipts from the sale of money orders, money order fees due MEMO, accounting (store) copies of money orders issued if applicable, daily sales report, the money order imprinter and any and all materials or documents provided to Trustee by MEMO pursuant to this *recrnent including but not limn imd to, all blank money order fomns. All obligation covenants, liabilities, and indemnities of Trustee hereunder shall survive the expiration or termination of this Agree7mrem A termination notice provided by MEMO for any reason other than the expiration of this Agreement shall be effective as of the happening of any such event causing termination under paragraph 7 hereof or upon the entry of confessed judgment, whichever first occurs. A. In its sole discretion and not +vithsmnding any other provision of the agreement to the contrary, MEMO may umediately terminate this location or any location covered by this agreement Ti the event \-lEN10 determines that compliance with this agreement would cause MEMO or anv of its affiliates to violate or potentially violate any local, state or federal law or regulation or any court order. Confession of Judgment Trustee hereby irrevocably authorizes and empowers any attorney or the Prothonotary or Clerk of any court of record, upon or after the occurrence of any event described in paragraph 7, to appear for and to confess or enter judgment against Trustee for the face amount of all money orders sold pursuant to this Agreement, the applicable Money Order Fees, accrued interest thereon, interest expense not to exceed eighteen percent (18%), and for arty other sums due MEMO under this Agreement, together with expenses and cost of suit and reasonable attorney's fees and said fees not to exceed thirty percent (30%) of said amount and sums, for collection as provided herein including all legal fees incurred in any Bankruptcy of Trustee. For such purpose, this Agreement or a copy hereof verified by affidavit by Trustee or on behalf of Trustee by said attorney, Prothonotary or Clerk shall be sufficient wan-Ant. The remedies of MEMO as provided herein and the warrants obtained herein shall be enforced in accordance with the terms of this Agreement and may be pursued singly, successively, or together at the sole discretion of MEMO and as often as occasion therefore shall occur. The fart re to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. The authority and power to appear for and confess or enter judgment against Trustee shall not be exhausted by the initial exercise thereof, and the same may be exercised, from time to time, as often as MEMO shall deem necessary and desirable, and this Agreement or a copy hereof shall be a sufficient Warrant therefore. One or more judgments may be confessed or entered in the same or different counties for all or part of the sums described in this paragraph. In the event any judgment entered against Trustee hereunder is stricken or opened upon application by or on Trustee's behalffor any reason whatsoever, then any attorney or the Prothonotary or Clerk of any court of record is hereby authorized and empowered to again appear for and confesster judgment against Trustee; subject, however, to the limitation that such subsequent entry or confession of judgment may only be done to cure any errors in riot proceedings, and only and to the extent that such errors are subject to cure in the late proceedings. 10. Liability. Trustee, regardless of Trustees freedom from negligence or other fault, shall be absolutely liable: of the A. To make remittance to MEMO of the face amount of all money orders sold, the applicable Money Order Fees, and all other monies due MEMO under this Agreement, regardless mysterious or non-mysterious & -appearance or loss of any funds from Trustee's possession by reason of the honest or dishonest act of any person, act of God, or otherwise. B. To remit to MEML O the total amount of all stuns of money that may be expended by or for MEMO in paying any money orders delivered by MEMO to Trustee that are subsequently presented for payment, whether or not ME:ti10 is legally liable to pay the same. This subparagraph shall not apply to any money order as to which Trustee shall have fully performed Trustee's duties under this Agreement 11. Indemnity. Trustee shall indemnity, defend and hold harmless MEMO from and against any and all losses, damages, liabilities, claims, actions, suits, proceedings, judgments, assessments, fines, penalties, costs, interest, and ex?mses (including, but not limited to, settlement cost and reasonable legal and accounting fees) sustained by MEMO resulting from or arising out of any act or omission to act, whether honest, dishonest, negligent or otherwise by Trustee or Trustee's employees, agents, associates or representatives (whether within or without their scope of performance). 12 Security. As further consideration of appointment by MEMO as its agent, and in order to protect MEMO's property from conversion, Trustee hereby grants to MEMO a continuing security interest in Trustee's bank account, inventory accounts receivable, assignment of lease, and fixtures at all Trustee locations. Trustee agrees to execute all documents necessary to create or perfect such security interest including, but not limited to, recorded Uniform Commercial Code-Financial Statement (UCC1(s)) fillings. Furthermore, MEMO reserves the right to require additional collateral as it deems necessary for ongoing approval and for the duration of the Agreement In the event Trustee changes ownership in Trustee's business in any transaction similar to those set forth in paragraph 6P hereof, without prior notice and approval by MEMO as set forth therein, Trustee hereby grants a security interest in the proceeds of any such transaction until such time as an approved trust account is re-established. 13. Notices. Except as otherwise stated, all notices, correspondence, and communications under this Agreement shall be in writing and addressed as follows: IF TO MEMO: MEMO IF TO TRUSTEE: See attached Rider P.O. Box 8863 Camp Hill, PA 17001-8863 14. Choice of Law. This agreement shall be construed under and in accordance with the laws of the Commonwealth of Pennsylvania, disregarding any rules relating to the choice or conflict of laws. The parties consent to venue and personal jurisdiction in Cumberland County, Pennsylvania, or, in the case of MEMO's exercise of rights [order Paragraph 11 hereof, in any other court of record in Pennsylvania or elsewhere. 15. Compliance with law. Trustee shall abide by (and cause its officers, principals and employees to abide by) all federal, state and local laws and r gulation applicable to Trustees business and services provided They are to include but are not limited to: (a) State Licensing Laws; (b) the Bank Secrecy Act and its regulations; c Federal cash reporting requirements uirements and regulations; (d) State Currency reporting requirements, (e) Federal and/or State anti-money laundering laws and all rules and regulations; (0 all applicable state money transfer or sale of check laws and regulation; W all federal and state privacy laws and regulations; (h) the USA Patriot Act 16. Non-Waiver. The failure of MEMO to enforce any provision of this Agreement or its failure to declare a default under this Agreement shall not constitute a waiver or any breach or of any provision of this Agreement and shall not prejudice the right surd/or power of MEMO to proceed as fully as if it had not failed to enforce any provision of this Agreement 17. Enforcement. In the event of default under the terms of this Agreernent, Trustee agrees that MEMO shall, in addition to all rights it might have under the law, have the right of seeking specified performance in the court of equity. Furthermore, Trustee agrees to consent to the jurisdiction of a court of equity regarding the enforcement of this Agreement and/ox the enforcement of MEMO(s) rights in the event of any default by Trustees. 18. Cost of Enforcement. Trustee shall pay, on demand by MEMO, all costs and e:Tenes including reasonable attorney's fees incurred by MEMO in connection with the enforcement of this Agreement 19. Construction. All references in this Agreement in the singular shall be construed to include the plural where applicable and the masculine shall include other genders. covenants, agreements and obligation in this Agreement assumed b Trustee shall be, and shall be deemed to be, joint and several convenants. H of the paragraphs of this t are for convenience only and do not limit, expand, or otherwise construe the provision or contents of this Agreement Entire Agreement 't'his Agreement, together with all attachments and riders, related security documents and such Hiles and regulations as may be promulgated by MEMO for the issuance of money orders from time to time, shall constitute the entire agreement between the parties hereto. There are not other agreements or understandings, written or oral, between the parties with respect to the subject matter of this Agreeine7ut There shall be no modification, amendments, or alterations to this Agreement unless agreed to in writing, signed by all parties. This Agreement shall bind and inure to the benefit of the parties, their respective hens, successors, representatives and proper assigns. MEMO and Trustee understand that a completed telefax Signature is as valid as the original. 21. Time of the Essence. Tune Ls of the essence in this Agreement and the Rider. WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE, AND THE POWER OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR, WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO KERE WITH AGREEMENT, OR ANY OTHER CAUSE. Date _ 0 _ TRUSTEE Baima Inc MERCH SS,MON EY ORDER COMPANY, INC./ Corporate/Store Name rest en MEM MONEY ORDER COMPANY, INC. / Tide MEM ONEY ORDER COMPANI OF N ORK INC. / Srgnnatiue u1ERC TS EXPRESS U INC. Trustee Signature(Indmclual) By Trustee Signature(Individ Tide__ Trustee Signature(Indi-ndual) BH rp& rj/ jg/2m Trustee Signature(Individual) MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. MEMO MONEY ORDER COMPANY, INC. MEMO MONEY ORDER COMPANY OF NEW YORK, INC. MERCHANTS EXPRESS USA, INC. PERSONAL MONEY ORDER TRUST AGREEMENT REMITTANCE BY ELECTRONIC FUNDS TRANSFER This Rider is an integral part of the Personal Money Order Trust Agreement being executed by the parties simultaneously herewith. Any changes to this Rider shall serve as an authorized addendum to the original Trust Agreement when properly executed by both parties. TRUSTEE: Corporate/Business Name Baima Inc Street Addressfi47 Brown Trail City Hurst 76053 State TX Zip Code - Telephone Number (817) 510 - 3720 Fax Number Agent Number Legal Entity: ? Corporation a LLC ? Partnership U Sole Proprietorship MONEY ORDER FEES: Money Order fees shall be base drQr} a per weekly volume of 40 Money OrdersOboy Money Order fee shall be $ Trustee. Trustee's u er item at a maximum retail selling price of $ . Additionally, a money order dispenser fee of $ per week/month shall apply plus applicable taxes. Weekly money order dispenser fees shall be included with Trustee's last (if applicable) regular weekly ACH draft. Monthly money order dispenser fees shall be included on the next regular weekly ACH draft following the last calendar day of a particular month. The minimum monthly revenue generated by Trustee's account must equal $ NSA per month beginning on The difference between the minimum monthly revenue and a combination of per item money order fees/money order dispenser fees will be calculated monthly, reported via debit transmittal notice approximately three weeks following the close of a calendar month, and will be drafted one week thereafter as part of Trustee's regular ACH draft. Money Order fees may be modified by MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. d/b/a MEMO, or MEMO MONEY ORDER COMPANY, INC. d/b/a MEMO, Pennsylvania Corporations, or MEMO MONEY ORDER COMPANY OF NEW YORK, INC., d/b/a/ MEMO, a New York Corporation ("MEMO', MERCHANTS EXPRESS USA, INC. d/b/a MEMO, at any time upon thirty (30) days notice to Trustee or when MEMO's ten week sales analysis indicates per item weekly volume not consistent with MEMO's fee rate schedule. PROCEDURE FOR SALE OF MONEY ORDERS: Trustee shall sell money orders strictly, pursuant to the following procedures: A. Trustee shall sell only MEMO money orders in each retail establishment. Trustee shall ensure that the money orders are held secure at all times, and that such money orders along with the funds generated from such sales, will not be in jeopardy, nor seem in the opinion of a reasonable person, to be in jeopardy, and shall cease the issuance of money orders and notify MEMO immediately, should such jeopardy arise. B. Trustee shall sell money orders in strict numerical sequence in accordance with the number printed on each blank money order. $500.00 C. The face amount of any money order sold by Trustee shall not exceed the sum of $ D. Trustee shall not issue a money order until such time as Trustee has imprinted the applicable amount on the face of the money order, utilizing only the imprinter approved by MEMO and no other imprinter; collected from the purchaser the face amount of the money order and an additional amount determined by Trustee's retail fee; and removed and retained the accounting (store) copy of the money order if applicable. E. If the money order imprinter is not in proper operating condition or properly inked, Trustee shall immediately report such fact to MEMO's Help Line at 1-800-864-5246. F. MEMO may deliver blank money orders to Trustee, or to any agent, employee or representative of Trustee, by whatever means MEMO deems appropriate, and MEMO is authorized to receive and issue a receipt for blank money orders on behalf of Trustee. TERMINATION: Upon termination, cancellation, or breach of the Trust Agreement by Trustee, Trustee hereby agrees to one day's written demand notice by' EMO to forthwith return by next day US mail or common mail carrier all Trust instruments in its possession, including but not limited to money order imprinting machines, all blank money order forms, the face amount and applicable money order fees due MEMO to date, and all other outstanding balances due MEMO, along with any other materials supplied to Trustee by MEMO in accordance with the Trust Agreement (hereinafter "Trust Property"). In the event that Trustee fails to return such items upon one day's written demand, "Trustee hereby authorizes MEMO or its representatives or appointed designees to appear at Trustee's place of business and peaceably obtain custody of all such Trust Property listed herein. The costs of any repossession by MEMO shall be borne exclusively by the Trustee. TRUST FUNDS REMITTANCE: Any Trustee utilizing electronic money order dispensing equipment will be forwarded a weekly money order Sales Summary Report, prior to the close of the sales reporting day. The weekly money order Sales Summary Report will reflect money order sales for the applicable reporting period. SALES PERIOD: BEGINNING DAY ENDING DAY REPORTING DAY ACH/WIRE Monday Wednesday Thursday Friday Thursday Sunday Monday Tuesday Trustee will be provided all pertinent reporting information on the weekly money order Sales Summary Report. As per predetermined schedules, MEMO will initiate an electronic transfer of funds due MEMO, including the face value of money orders sold, plus applicable fees due MEMO, from Trustee's bank account to MEMO's bank account. If Trustee's method of remittance is via wire, Trustee will initiate a wire transfer of applicable money order sales proceeds plus applicable money order fees from amount Trustee's money order Trust Account to the designated MEMO bank deposit account prior to 2:00 PM on the designated remittance day. All funds due MEMO must be included with remittance when due. All outstanding statement balances due at this time must be included with remittance, including debits due MEMO and/or credits due Trustee. If Trustee changes banks and/or bank accounts as identified in the Trustee's EFT agreement, Trustee shall immediately inform MEMO of such change by telephone and promptly confirm in writing. This arrangement shall not be revoked unless all funds due MEMO are paid in full. If Trustee did not sell any money orders during the Sales Period, Trustee must still remit payment for outstanding balances as notified by MEMO. All voided money orders must be voided through the electronic money order dispenser during the sale date only to avoid charges to Trustee's account. If a voided money order is not voided in the money order dispenser, Trustee shall write, "NOT USED FOR PURPOSE INTENDED" on the backside of the original money order and deposit the money order into Trustee's bank account. If Trustee should write "void" on the face of the original money order, Trustee shall forward the original voided money order to the MEMO office and MEMO will issue a refund to Trustee in the form of a replacement money order. Trustee shall ensure that the electronic money order dispenser is available for MEMO to electronically transmit polling data on a daily basis. If the electronic money order dispenser does not poll consistently, Trustee must provide MEMO with the money order sales date manually as requested. Trustee ensures that the electric money order sales dispenser is always turned on and always promptly connected to a clear telephone line during electronic polling transmission times. WEEKLY ACCOUNTING AND REMITTANCE: Monday and Thursday of each week, MEMO will calculate a weekly money order On sales total from daily data obtained from Trustee via electronic polling transmission of the money order dispenser. MEMO will forward the weekly Money Order Sales Summary Report to Trustee as stated above. Trustee shall reconcile the weekly Money Order Sales Summary Report with its records and inform MEMO of any differences. Trustee must retain the accounting (store) copies if applicable, at its location for a period of three months from the reporting period. Trustee shall forward the accounting (store) copies, if applicable, to the MEMO office upon request. If the accounting (store) copies are not requested during the three month retention period, Trustee shall discard the accounting (store) copies at its own discretion. TRUSTEE Corporate/Store Name Baima Inc 1 Signature - Title President Date ©b D 3- Or-,? MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. MEMO MONEY ORDER COMPANY, INC. MEMO MOD Y ORDER COMPANY OF NEW-YO INC. MEMO EXP USA, INC. j /'/ Signature Title Date ELECTRONIC: 3/08 BH LLM 512912008 MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. - MEMO MONEY ORDER COMPANY, INC. MEMO MONEY ORDER COMPANY OF NEW YORK, INC. MERCHANTS EXPRESS USA, INC. PERSONAL INDEMNITY AND GUARANTY Intending to be legally bound hereby, and in order to induce MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. d/b/a/ MEMO, MEMO MONEY ORDER COMPANY, INC. d/b/a/ MEMO Pennsylvania Corporations, or MEMO MONEY ORDER COMPANY OF NEW YORK, INC, a New York Corporation, MERCHANTS EXPRESS USA, INC. d/b/a.MEMO, or any subsidiary d/b/a/ MEMO ("MEMO") to sign that certain Personal Money Order Trust Agreement, Rider and amendments or changes thereto as may be in effect from time to time (collectively the "Agreement") with: Corporate/Business Name Baima Inc 76053 547 Brown Trail city Hurst State TX Zip Code Street Address and in consideration of its so doing, the Undersigned, jointly and severally, absolutely and unconditionally, personally guarantee and become surety for Trustee's full performance of the Agreement, including without limitation the prompt and punctual payment of all amounts becoming due from Trustee to MEMO thereunder, and shall indemnify and hold MEMO harmless against any and all damage, loss expense (including attorney's fees) and/or liability sustained by it by reason of or related to Trustee's failure to perform the Agreement. The Agreement may be modified by MEMO and Trustee without notice to the undersigned and without affecting this Guaranty. MEMO may enforce this Guaranty against the undersigned in the Court of Common Please of Cumberland County, Pennsylvania (to which jurisdiction of said Court the Undersigned consents), as well as in any other court and state having jurisdiction, whether or not any action is ever taken by MEMO against Trustee. The Undersigned hereby waive all notices whatsoever with respect to this Guaranty except for notice of demand for payment from the Undersigned. The Undersigned hereby consent to the taking of, or the failure to take, from time to time without notice to the Undersigned, any action of any nature whatsoever with respect to the Agreement, including but not limited to any renewals, extensions, modifications, postponements, compromises, indulgences, waivers, surrenders exchanges, releases, and failure to pursue or preserve rights against any person, and the Undersigned shall remain fully liable hereon notwithstanding any of the foregoing. Except provided herein, the Undersigned hereby waive all defenses whatsoever to the Undersigned's liability hereunder except the defenses of 1 and (2) lack of notice as required in the Agreement. Upon default hereunder, the Undersigned hereby authorizes and empowers irrevocably the Prothonotary or any Clerk or any attorney of any court of record of Pennsylvania or elsewhere to appear for and to confess judgment against the Undersigned for all amounts due hereunder, plus all costs of suit, legal interest to date, and thirty percent (30%) added for attorney's fees, releasing errors, waiving stay of execution, and authorizing the immediate .issue of a writ of execution, all in accordance with the Pennsylvania Rules of Civil Procedure. For such purpose, this Guaranty or a copy hereof verified by affidavit by the Undersigned or on behalf of the Undersigned by said Prothonotary, Clerk or attorney, shall be sufficient warrant. The authority and power to appear for and to confess or enter judgment against the Undersigned shall not be exhausted by the initial exercise thereof, the same may be exercised, from time to time, as often as MEMO shall deem necessary and desirable, and this Guaranty shall be a sufficient warrant therefor. The Undersigned acknowledge that by authorizing MEMO to confess judgment hereunder, the Undersigned have waived the right to notice in a prior judicial proceeding to determine their rights and liabilities. This Guaranty is given in connection with and evidences the obligation of the Undersigned to make payment in connection with a commercial transaction. This Guaranty is irrevocable and shall be binding and operative until such time as MEMO shall have been paid all sums owed to it under the Agreement and that may arise pursuant to this Guaranty. This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, disregarding any rules relating to the choice or conflict of laws. WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE, AND OTO COLLECT FROM YOU EGARLESS OF R RETURNED GOODS, FAUULTTY GOODS, FAILURE ON HISMPARTATO THE POWER CREDITOWHETHERUSED AGAINST THE ? COMPLY WITH AGREEMENT, OR ANY OTHER CAUSE. Guarantor's Signature. Gua antor's Signs (Spouse) Print Guarantor's Name k{CC? Print Spouse's 1-fame lc1a t Oc eP ?4O 4C O ? Home Address Home Address T ?6©3? :-?s ?? X60.39 State Zip Code City State Zip Code City Date SH Date LLM 512912008 *If not married, please indicate by affixing "N/A" on line for second Guarantor's signature. 10/2007 OF THE WPM?NIEOTARY 7010 JAN •5 PM 12r 13 CUMBERLAND COLW L???, ,rca, 4