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HomeMy WebLinkAbout10-0184Merchants Express Money Order Company, Inc. PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY v. Troy Herzog Individually, jointly and severally, DEFENDANT and , 2009 No. 00/D - The Hub Sole Proprietorship DEFENDANT 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: $14,658.87 Interest: $ 271.18 Lost Fee Income: $ 0.00 Attorney Fees: $ 4,926.92 Total: $19,856.97 Kevin . Lutkins, Esq. Attorney for Defendants Merchants Express Money Order Company, Inc. PLAINTIFF V. Troy Herzog Individually, jointly and severally, DEFENDANT and The Hub Sole Proprietorship 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. 151 )0a?! '0- PROTHONOTARY 144, If you have any questions concerning the above, please contact: Kevin M. Lutldns, Esq. Merchants Express Money Order Company 1029 Mumma Road P.O. Box 8863 Camp Hill, PA 17001-8863 (800) 543-8207 Merchants Express Money Order Company, Inc. PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY V. Troy Herzog Individually, jointly and severally, DEFENDANT and 2009 No. /6- N q 6 ,v. The Hub Sole Proprietorship DEFENDANT COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY COUNT I - CONFESSION OF JUDGMENT (MEMO V. TROY HERZOG) Plaintiff is Merchants Express Money Order Company, Inc., hereinafter "MEMO"), a Pennsylvania Corporation wholly owned by the Pennsylvania Food Merchants Association that engages in the issuance and sale of money orders and whose address is 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043. 2. Defendant The Hub (hereinafter "Hub"), is a sole proprietorship doing business at 501 West Main Street, Smethport, Pennsylvania 16749. 3. Defendant Troy Herzog (hereinafter "Herzog"), is an individual residing at 501 West Main Street, Smethport, Pennsylvania 16749. 4. Defendant Herzog is the owner and/or operator of Defendant Hub and entered into the Trust Agreement on behalf of said Defendant and himself on or about November 20, 1995. A true and correct copy of the Trust Agreement under which Defendants Herzog and Hub are confessing judgment is attached hereto as Exhibit "A". Defendant Herzog, with the intent to induce MEMO to enter into a Trust Agreement with Defendant Hub, entered into the Personal Indemnity and Guaranty on or about November 20, 1995. A true and correct copy of the Personal Indemnity and Guaranty under which Defendant Herzog is confessing judgment is attached hereto as Exhibit "B". 6. The forgoing judgment against Defendants Herzog and Hub, is not being entered by confession against a natural person in connection with a consumer credit transaction. 7. The Plaintiff has not assigned the Trust Agreement and Personal Indemnity and Guaranty under which judgment is being confessed. 8. The Plaintiff has not entered judgment against Defendants in any jurisdiction for the unpaid sum of $14,856.97 or any additional amount for a total of the debt demanded here. 9. The Defendants jointly and severally acted as selling agents for Plaintiff from January 18, 1996 until November 6, 2009. 10. 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. 11. The Plaintiff attempted to collect the trust funds from Defendants on November 12, 2009 and November 25, 2009, through an Automated Clearing House (hereinafter "ACH") method. 12. The Plaintiff, or its designated check-clearing banking center did not receive the payment of the trust funds on November 12, 2009 and November 25, 2009, as required by the Trust Agreement and the Remittance by Electronic Funds Transfer agreement dated November 20, 1995 (hereinafter "Rider"). A true and correct copy of the Rider is attached hereto as part of the Trust Agreement in Exhibit "A". 13. The failure of Plaintiff or its designated check-clearing banking center to receive trust funds from the Defendant in accordance with the Trust Agreement and its Rider constitutes an event of default allowing Plaintiff to enter judgment against Defendants. 14. Pursuant to the Trust Agreement, the Plaintiff suffered damages by the Defendants conduct as follows: Principal: $14,658.87 Interest: $ 271.18 Lost Fee Income: $ 0.00 Attorney Fees: $ 4,926.92 Total: $19,856.97 15. The Plaintiff is not making a claim for lost fee income. 16. Plaintiff demands judgment in the aforementioned amount as authorized by the Warrant of Attorney contained in the Trust Agreement attached hereto as Exhibit A. 17. The Warrant of Attorney contained in the Trust Agreement is less than twenty (20) years old. WHEREFORE, Plaintiff demands judgment in the amount of $19,856.97, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT H - BREACH OF CONTRACT (MEMO V. TROY HERZOGI 18. The averments set forth in paragraphs 1 through 17 are incorporated by reference as if set forth in full herein. 19. Defendant Herzog signed the above referenced Trust Agreement, and the documents appended thereto, on behalf of The Hub. 20. Defendant Herzog also signed the above-reference Personal Indemnity and Guaranty Agreement, pursuant to which he made himself personally liable for any default by The Hub under the Trust Agreement. 21. The failure of Herzog 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 $19,856.97, 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. TROY HERZOG) 22. The averments set forth in paragraphs 1 through 21 are incorporated by reference as if set forth in full herein. 23. The trust Agreement created fiduciary obligations owed by the Defendant to the Plaintiff. 24. In breach of their fiduciary obligations, Defendant Herzog: 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. 25. Defendant performed all of the above actins intentionally, willfully, maliciously, and with wanton disregard for the rights of Plaintiff. 26. 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 $19,856.97, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT IV - CONVERSION (MEMO V. TROY HERZOG) 27. The averments set forth in paragraphs 1 through 26 are incorporated by reference as if set forth in full herein. 28. Plaintiff avers, on information and belief, that Defendant Herzog converted the trust funds owed Plaintiff to his own personal uses. 29. Defendant Herzog'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 $19,856.97, 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 (MEMO v. TROY HERZOG) 30. The averments set forth in paragraphs 1 through 29 are incorporated by reference as if set forth in full herein. 31. Plaintiff avers, upon information and belief, that Defendant wrongfully retained the trust funds. 32. 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. 33. The Defendant's retention of the benefits conferred by Plaintiff without paying the value of such benefits would be inequitable and unjust. 34. 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 $19,856.97, 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. TROY HERZOG) 35. The averments set forth in paragraphs 1 through 34 are incorporated by reference as if set forth in full herein. 36. The Trust Agreement clearly states that all money orders and trust funds are Plaintiff s property. 37. 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. 38. 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. 39. By operation of law, Plaintiff is the owner and Defendant is the trustee for all assets so commingled. 40. Despite Plaintiffs 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. WHEREFORE, Plaintiff demands judgment in the amount of $19,856.97, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. Kevin M. utkins, Esq. Attorney for Plaintiff Attorney ID: 76859 Date: I zl/'?? 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 its wholly owned subsidiary, Merchants Express Money Order Company. 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 unworn falsifications to authorities. Daniel C. Oliva Merchants Express Money Order Company, Inc. PLAINTIFF V. COURT OF COMMON PLEAS, CUMBERLAND COUNTY Troy Herzog , 2009 Individually, jointly and severally, DEFENDANT and No. The Hub Sole Proprietorship DEFENDANT AFFIDAVIT OF ADDRESSES COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: 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, Merchants Express Money Order Company, a wholly owned subsidiary of the Pennsylvania Food Merchants Association. 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: The Hub 501 West Main Street Smethport, PA 16749 SWORN to and subscribed before me this G day of ?Mm , 2009. o ftblic Troy Herzog 501 West Mair Smethport, PA COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer R. Hamelin, Notary Public Wormleysburg Boro, Cumberland County My Commission Expires July 12, 2012 Member. Pennsvlvania Association of Notaries Merchants Express Money Order Company, Inc. PLAINTIFF V. Troy Herzog Individually, jointly and severally, DEFENDANT and The Hub Sole Proprietorship DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY No. 2009 AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: 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, Merchants Express Money Order Company, a wholly owned subsidiary of the Pennsylvania Food Merchants Association. The undersigned also states that to the best of my knowledge, information, and belief; the Defendants are not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 19 SWORN to and subscribed before me this 30 , day of 2009. 1/? 1)hhL Not ry ub(j COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer R. Hamelin, Notary Public Wormleysburg Boro, Cumberland County My Commission Expires July 12, 2012 Member, Pennsylvania Association of Notaries MERCHANTS EXPRESS MONEY ORDER COMPANY/MEMO MONEY ORDER COMPANY PERSONAL MONEY ORDER TRUST AGREEMENT THIS AGREEMENT is made between MERCHANTS EXPRESS MONEY ORDER COMPANY or MEMO MONEY ORDER COMPANY, d/b/a MEMO, Pennsylvania corporations ("MEMO") and the individual(s) and/or entities identified below, hereafter referred to as Merchant(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 Merchant to act as a special agent of MEMO at each of Merchant's retail establishments approved for the sale of money orders issued by MEMO. Merchant accepts such appointment in accordance with the terms and conditions specified in this Agreement and in the attached Rider herein incorporated and made a part hereof. 2. Trust Relationship. Merchant shall receive and hold in trust for MEMO all blank money orders delivered to Merchant by MEMO and all money received by Merchant from the sale of money orders, including without limitation the money order fees established by MEMO from time to time ("trust funds'). Merchant shall hold the trust funds separate and apart from other funds of Merchant 3. Money Order Fees. In consideration of the services rendered to Merchant by MEMO, Merchant shall pay MEMO a fee ("Money Order Fees') specified in the attached Rider. Money Order Fees may be modified by MEMO at any time upon thirty (30) days prior notice to Merchant 4. Materials Supplied by MEMO. For the sole purpose of selling money orders pursuant to this Agreement, MEMO will supply Merchant with the following A. An adequate supply of blank money orders, serially numbered and consisting of two or three parts: The first part being the money order instrument itself (stub/ purchaser's receipt with 2 part); the second part being the accounting (store) copy; and the third part being the purchaser's copy with a three part form. B. An agency installation folder containing adequate supplies of money order reporting forms, mailing labels, lost money order claim cards, stop payment forms and various other forms necessary for the continuous and on-going operation of a money order program. Furthermore, Agent agrees to comply with all Federal and State regulations governing currency transaction reports and record keeping. 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. Money order imprinters shall be of two different types consisting of both electronic money order dispensers'and manual money order imprinters. At MEMO's sole discretion, either Type of dispenser may be issued to agent. Manual money order dispensers shall contain an identifying plate which shall read "MEMO' followed by the merchant agent I.D. number. Electronic money order dispensers shall be programmed by MEMO to indicate Agent I.D. number on imprinted money orders. Such money order imprinters shall at all times continue to be the sole property of MEMO and shall not be removed from the Merchant's retail establishment where it was originally installed by MEMO. Any other money order dispensers not owned by MEMO and used by Agent to imprint money orders must be approved by MEMO. 0. Such advertising material as MEMO in its sole discretion shall determine. 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 Merchant's premises and to inspect and perform an accounting of, or cause its employees or agents to inspect and perform an accounting of, the cash receipts, Money Order Fees, the accounting (store) copies of money orders sold and the Merchant's inventory of unissued money orders. A charge will be assessed against Merchant to recover expenses incurred by MEMO when an audit is made due to Merchant's breach of this Agreement or if the audit discloses a breach. (See audit fee/penalty fee schedule). 6. Rules and Regulations. Merchant shall comply with the following rules and regulations: A. No money order shall be issued or sold to anyone in payment of any obligation of Merchant or used in any manner for Merchant's own purposes. B. Only cash shall be accepted as payment for money orders issued or sold. No check or other paper transmitted or deposited by Merchant 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 any such paper for collection. C. Merchant 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. Merchant shall report to MEMO the serial number of each money order stolen or missing, and all other information relating to the event, 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 immediately confirmed in writing. Merchant shall be solely responsible for all losses arising from, and shall indemnity MEMO and hold harmless regarding any and all stolen or missing money orders as well as any money order imprinters issued to Agent. Futhermore, Agent 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 Merchant shall not be limited by Merchant's compliance with the safe guarding, care, and reporting obligations set forth in this paragraph . D. Merchant shall at all times maintain a sound financial position and provide current financial information to MEMO as requested by MEMO. Merchant shall conduct operations so that the funds 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. E. Merchant shall provide MEMO by faxcimile transmittal or registered mail three (3) weeks advance notice of proposed change(s) in the ownership of either Merchant's business. the management of Merchant's business, the sale of fifty-one percent (51 %) or more of Merchant's assets, or the entry into or termination of businesses affiliated with Merchant No assignment, discussed in the subparagraph, shall be effective without the prior written approval of MEMO. Any attempt by Merchant shall be void, ab initio. If Merchant fails to give such notification, Merchant, as well as its successor, shall remain liable for the payment of all sums and the performance of all duties required by this Agreement. F. At Merchant's retail establishments where money orders are sold, Merchant shall sell only MEMO money orders. G. Merchant shall sell MEMO money orders only at Merchant's specifically approved places of business or future places of business as approved by MEMO. H. Merchant shall remain open during the course of normal business hours for the duration of this agreement. Failure to do so shall constitute a breach of this agreement. 7. Terre of Agreement. The term of this Agreement shall run for a period of two (2) years from the date of this Agreement and shall renew automatically for successive two (2) year periods. After the initial two year term of this Agreement, Merchant may terminate this Agreement upon six (6) months prior written notice to MEMO, and MEMO may terminate this Agreement upon sixty (60) days prior written notice to Merchant. Notwithstanding the foregoing, MEMO may terminate this Agreement at any time, 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. MEMO or its designated check-clearing banking center does not receive the accounting documentation or payment of trust funds (including money order sale proceeds and Money Order Fees), within the time period and terms specified in the Rider to this Agreement B. The non-performance by Merchant of any obligations of Merchant pursuant to this Agreement. C. Merchant or any Guarantor commits any affirmative act of insolvency, or upon the filing by Merchant or any Guarantor of any petition under any bankruptcy, reorganization, insolvency, or moratorium law, or any law for the relief of, or relating to debtors; or the filing of any involuntary petition against Merchant under any bankruptcy statute, or the appointment of a receiver or trustee to take possession of the property or assets of Merchant; or the subjection of any of Merchant's property or assets to any levy, seizure, assignment or sale for or by any creditor or governmental agency. 6. Termination. Upon the expiration or termination of this Agreement, Merchant 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, the money order imprinter and any and all materials or documents provided to Merchant by MEMO pursuant to this Agreement, including, but not limited to, all blank money order forms. All obligations, covenants, liabilities, and indemnities ,f Merchant hereunder shall survive the expiration or termination of this Agreement. 9. Liability. Merchant, regardless of Merchant s freedom from negligence or other fault, shall be absolutely liable: 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 of the mysterious or non-mysterious disappearance or loss of any funds from Merchant's possession by reason of the honest or dishonest act of any person, act of God, or otherwise. B. To remit to MEMO the total amount of all sums of money that may be expended by or for MEMO in paying any money orders delivered by MEMO to Merchant that are subsequently presented for payment, whether or not MEMO is legally liable to pay the same. This subparagraph shall not apply to any money order as to which Merchant shall have fully performed Merchant's duties under this Agreement. 10. Indemnity. Merchant shall indemnify, 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 expenses (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 Merchant or Merchant's employees, agents, associates or representatives (whether within or without their scope of performance). 11. Confession of Judgment. Merchant 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 Merchant 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 any other sums due MEMO under this Agreement, together with expenses and costs of suit and reasonable attorney's fees said fees not to exceed thirty percent (301%) of said amounts and sums, for collection as provided herein. For such purpose, this Agreement or a copy hereof verified by affidavit by Merchant or on behalf of Merchant by said attorney, Prothonotary or Clerk, shall be sufficient warrant. The remedies of MEMO as provided herein and the warrants contained 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 therefor shall occur. The failure 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 Merchant 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 therefor. 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 Merchant hereunder is stricken or opened upon application by or on Merchant's behalf for 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 confess or enter judgment against Merchant; subject, however, to the limitation that such subsequent entry or confession of judgment may only be done to cure any errors in prior proceedings, and only and to the extent that such errors are subject to cure in the later proceedings. Merchant acknowledges that by authorizing MEMO to confess judgment hereunder, Merchant waives the right to notice in a prior judicial proceeding to determine its rights and liabilities. Merchant further acknowledges that MEMO may obtain a judgment against Merchant without its prior knowledge or consent and without Merchant's opportunity to raise any defense, set off, counterclaim or other claim Merchant may have. Merchant expressly waives such rights as an explicit and material part of the consideration for MEMO's agreement to make money orders available to Merchant. 12. Security. As further consideration of appointment by MEMO as ifs agent, and in order to protect MEMO's property from conversion, Merchant hereby grants to MEMO a continuing security interest in Merchants bank account, inventory, accounts receivable and fixtures at all Merchant locations. Merchant 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)) filings. Furthermore, MEMO reserves the right to require additional collateral as it deems necessary for ongoing approval and for the duration of this agreement 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 1029 Mumma Road P.O. Box 8863 Camp Hill, PA 17001-8863 IF TO MERCHANT: See attached Rider. 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 under Paragraph 11 hereof, in any other court of record in Pennsylvania or elsewhere. 15. 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 of any breach or of any provision of this Agreement and shall not prejudice the right and/or power of MEMO to proceed as fully as if it had not failed to enforce any provision of this Agreement. 16. Enforcement. In the event of default under the terms of this agreement, Merchant agrees that MEMO shall, in addition to all other rights it may have under the law, have the right of seeking specific performance in a court of eqquittyy Furt hermore, Merchant agrees to consent to the jurisdiction of a court of equity regarding the enforcement of this agreement and/or the enforcement of MEMO(s) rights in the event of any default by Merchants. 17. Coat of Enforcement. Merchant shall pay, on demand by MEMO, all costs and expenses including reasonable attorney's fees incurred by MEMO in connection with the enforcement of this Agreement in a court of equity. 18. Construction. All references in this Agreement in the singular shall be construed to include the plural where applicable and the masculine shall include all other genders. All covenants, agreements and obligations in this Agreement assumed by Merchant shall be, and shall be deemed to be, joint and several covenants. Headings of the paragraphs of this Agreement are for convenience only and do not limit, expand, or otherwise construe the provisions or contents of this Agreement 19. Entire Agreement This Agreement, together with all attachments and riders, related security documents and such rules 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 no other agreements or understandings, written or oral, between the parties with respect to the subject matter of this agreement. There shall be no modifications, 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 heirs, successors, representatives and proper assigns. 20. Time of the Essence. Time is of the essence in this Agreement and the Rider MERCHANT Z l ?'- Date / S G L Cnrnnrafn nr S1nrr Nnma MERCHANTS EXPRESS MON RD COMPANY/ MEMO M ORDER '0 A V By Yftle? ? ? .% ri.? i F000995 Title 4?. ?-- Merchant (Individual) Merchant (individual) Merchant (Individual) Merchant (individual) MERCHANTS EXPRESS MONEY ORDER COMPANY MEMO MONEY ORDER COMPANY 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: Merchant: Store Name 7?f Street Address 7-City State -= ZIP Code Agent Number Telephone Number Py 7 Legal Entity: ( ) Corporation; ( ) Partnership; ( ?e Proprietorship Money Order Fees: Money Order Fees shall be based upon the weekly volume of i C Money Orders sold by Merchant, Mer- chants Money Order Fee shall be $ 3-' per item at a maximum retail selling price of $_ 4? Money Order fees may be modified by MEMO at any time upon thirty (30) days notice to Merchant or when MEMO's 10 week sales analysis indicates per item weekly volume not consistent with MEMO's amount rate schedule. Procedure for Sale of Money Orders: Merchant shall sell money orders strictly pursuant to the following procedures: A . Merchant shall sell only MEMO money orders in each retail establishment and shall ensure that the money orders are held secure at all times and that such money orders are handled and sold, along with the cash generated from such sales, only by employees who are bonded by a company approved by MEMO. Merchant shall have the option, in lieu of providing a specific bond pursuant to this Agreement, of listing MEMO as an additional obligee on a blanket bond covering all of Merchant's employees. B . Merchant shall sell money orders in strict numerical sequence in accordance with the number printed on each blank money order. C . The face amount of any [Honey order sold by Merchant shall not exceed the sum of $ 3Sc^s e%''. D . Merchant shall not issue a money order until such time as Merchant 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 Merchant which shall not be less than the applicable Money Order Fee; and removed and retained the accounting (store) copy of the money order. E . If the money order imprinter is not in proper operating condition or properly inked, Merchant shall immediately report such fact to MEMO or MEMO's authorized servicing vendor. F . MEMO may deliver blank money orders to Merchant, or to any agent, employee or representative of Merchant, by whatever means MEMO deems appropriate, and MEMO is authorized to receive and issue a receipt for blank money orders on behalf of Merchant. Trust Fund Remittance: MEMO will telephone Merchant during the morning of the following day(s) to obtain the Reporting Period sales report: REPORTING PERIOD CALL DAY BEGINNING DAY ENDING DAY The Merchant will have all necessary information ready. (See Reporting Form for specifics.) Upon completion of the phone call, MEMO will initiate an electronic transfer to move the face value plus fees due MEMO from Mer- chants' to MEMO's bank account. All funds due MEMO must be available to MEMO at that time. If Merchant changes banks or bank accounts as identified in the Merchant's Credit Application, Merchant 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: Weekly Accounting and Remittances: On /?LCK0 ? of each week, Merchant shall complete one (1) weekly money order reporting form for the seven (7) day period ending on the immediately preceding A!6!2 5?5i1("Reporting Period") and shall mail MEMO the completed report along with the accounting (store) copy of each money order sold during the Reporting Period. If Merchant did not sell any money orders during the Reporting Period, Merchant shall so state on a weekly report and mail the completed report to MEMO. If a money order is spoiled before it is issued, Merchant shall mail the original and all copies of such money order, with an appropriate notation on such money order, to MEMO along with the next weekly report. In addition, Merchant shall at any time upon demand, transfer and deliver to MEMO all cash receipts from the sale of money orders, Money Order Fees due MEMO and the accounting (store) copies of money orders issued. ACCOUNTING DOCUMENTATION: Weekly accounting documentation in a form and manner acceptable to MEMO must be mailed by Merchant to MEMO within 24 hours after reporting period and shall be postmarked within 48 hours of reporting period. MERCHANT MERCHANTS EXPRESS MONEYPRDER O PANY MEMO MONEY ORDER C Y present rfie - CorporWe or St re Name MEMO Fie By - Title Title ccJDate Date i %-- - S 8 PERSONAL INDEMNITY AND GUARANTY Intending to be legally bound hereby, and in order to induce MERCHANTS EXPRESS MONEY ORDER COMPANY or MEMO MONEY ORDER COMPANY ("MEMO") to si n that certain Personal Money Order Trust Agreement and the Rider attached thereto (collective) the "Agreement") with er - ("Merchant") dated I I "-?9 s and in consider ion of its so doing, the Undersigned, jointly and severally, absolutely and unconditionally, personally guarantee and become surety for Merchant's full performance of the Agreement, including without limitation the prompt and punctual payment of ail amounts becoming due from Merchant 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 Merchant's failure to perform the Agreement. The Agreement may be modified by MEMO and Merchant without notice to the undersigned and without affecting this Guaranty. MEMO may enforce this Guaranty against the undersigned in the Court of Common Pleas 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 Merchant. 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 as provided herein, the Undersigned hereby waive all defenses whatsoever to the Undersigned's liability hereunder except the defenses of (1) payment, 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 ten percent (10%) 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. /`f Guar nt Signa e /I/// ? , Spouse's i ature -I- 7Z ® /mot L?R ZZ? --- Print Guarantor's Name Home Address City State Zip Code l l --- u, --yam Date Print Spouse's Name Home Address City State Zip Code Date If not married, please indicate by affixing "W" on line for spouse's signature. PGO891 8/91 Op 7HEV'MTAN JAN "5 PW 12= 16