HomeMy WebLinkAbout12-1976Merchants Express
Money Order Company, Inc.
PLAINTIFF
V.
Robin R. Cham
Individually, jointly and severally,
DEFENDANT
and
Lamin L Cham
Individually, jointly and severally,
DEFENDANT
and
Stop & Go Grocery Store
Sole Proprietorship
DEFENDANT
COURT OF COMMON PLEAS,
CUMBERLAND COUNTY
'
2012 - ?
zir -Z
No.
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: $ 6,522.93
Interest ($3.26/day) $ 348.98
Lost Fee Income: $ 0.00
Attorney Fees: $ 2,061.57
Total: $ 8,933.48
Kevin . Lutkins, Esq.
Attorney for Defendants
Merchants Express COURT OF COMMON PLEAS,
Money Order Company, Inc. CUMBERLAND COUNTY
PLAINTIFF
V.
Robin R. Cham , 2012
Individually, jointly and severally,
DEFENDANT
and No.
Lamin L Cham
Individually, jointly and severally,
DEFENDANT
and
Stop & Go Grocery Store
Sole Proprietorship
DEFENDANT
NOTICE
NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE-CAPTIONED
MATTER HAS BEEN ENTERED AGAINST YOU.
PRO OTARY
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
Merchants Express COURT OF COMMON PLEAS,
Money Order Company, Inc. CUMBERLAND COUNTY
PLAINTIFF
V.
Robin R. Chain 52012
Individually, jointly and severally, , -. 7
DEFENDANT ? -?-X f ,
and No.
Lamin L Chain °
Individually, jointly and severally,
DEFENDANT
-
and
Stop & Go Grocery Store
Sole Proprietorship
DEFENDANT
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
COUNT I - CONFESSION OF JUDGMENT
(MEMO V. SID R. CHAM)
1. Plaintiff is Merchants Express Money Order Company, Inc., hereinafter "MEMO"), a
Pennsylvania Corporation that engages in the issuance and sale of money orders and whose
address is 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043.
2. Defendant Stop & Go Grocery Store (hereinafter "STOP & GO"), is a sole
proprietorship doing business at 1095 Hightower Road, NW, Atlanta, GA 30318.
3. Defendant Robin R Chain (hereinafter "R. Chain"), is an individual residing at 3255
Country Walk Dr., Powder Springs, GA 30127 and spouse of Lamin Chain.
4. Defendant Lamin L. Chain (hereinafter "L. Chain"), is an individual residing at 3255
Country Walk Dr., Powder Springs, GA 30127 and spouse of Robin Chain.
5. Defendant R. Chain is the owner and/or operator of Defendant STOP & GO and
entered into the Trust Agreement on behalf of said Defendant and herself on or about January 2,
2003. A true and correct copy of the Trust Agreement. under which Defendants R. Chain and
STOP & GO are confessing judgment is attached hereto as Exhibit "A".
6. Defendants R. Chain and L. Chain, with the intent to induce MEMO to enter into a
Trust Agreement with Defendant STOP & GO, entered into the Personal Indemnity and
Guaranty on or about December 25, 2002. A true and correct copy of the Personal Indemnity
and Guaranty under which Defendants R. Chain and L. Chain are confessing judgment is
attached hereto as Exhibit "B".
7. The forgoing judgment against Defendants R. Chain, L. Chain and STOP & GO, 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 $8,933.48 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 January
27, 2003 until May 13, 2011.
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 or about May
10, 2011, 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 May 10, 2011, as required by the Trust Agreement and the
Remittance by Electronic Funds Transfer agreement dated December 25, 2002 (hereinafter
"Rider"). A true and correct copy of the Rider is attached hereto as part of the Trust Agreement
in Exhibit "A".
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 and its Rider constitutes an
event of default allowing Plaintiff to enter judgment against Defendants.
15. The Defendants began repayment of the Trust Funds On or about May 10, 2011 and
continued until October 31, 2011, whereupon the Defendants ceased repaying the Trust Funds.
16. Pursuant to the Trust Agreement, the Plaintiff suffered damages by the Defendants
conduct as follows:
Principal: $ 6,522.93
Interest ($3.26/day) $ 348.98
Lost Fee Income: $ 0.00
Attorney Fees: $ 2,061.57
Total: $ 8,933.48
17. The Plaintiff is not making a claim for lost fee income.
18. Plaintiff demands judgment in the aforementioned amount as authorized by the
Warrant of Attorney contained in the Trust Agreement attached hereto as Exhibit A.
19. The Warrant of Attorney contained in the Trust Agreement is less than twenty (20)
years old.
WHEREFORE, Plaintiff demands judgment in the amount of $8,933.48, 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. R. CHAM AND L. CHAM)
20. The averments set forth in paragraphs 1 through 17 are incorporated by reference as if
set forth in full herein.
21. Defendant R. Chain signed the above referenced Trust Agreement, and the documents
appended thereto, on behalf of The STOP & GO.
22. Defendant R. Chain also signed the above-reference Personal Indemnity and
Guaranty Agreement, pursuant to which he made himself personally liable for any default by
The STOP & GO under the Trust Agreement.
23. The failure of R. Chain 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 $8,933.48, 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. R. CRAM AND L CRAM)
24. The averments set forth in paragraphs 1 through 21 are incorporated by reference as if
set forth in full herein.
25. The trust Agreement created fiduciary obligations owed by the Defendant to the
Plaintiff.
26. In breach of their fiduciary obligations, Defendant R. Chain:
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.
27. Defendant performed all of the above actins intentionally, willfully, maliciously, and
with wanton disregard for the rights of Plaintiff.
28. 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 $8,933.48, 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. R. CHAM AND L. CHAM)
29. The averments set forth in paragraphs 1 through 26 are incorporated by reference as if
set forth in full herein.
30. Plaintiff avers, on information and belief, that Defendant R. Chain converted the trust
funds owed Plaintiff to his own personal uses.
31. Defendant R. Chain'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 $8,933.48, 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. R. CHAM AND L. CHAM)
32. The averments set forth in paragraphs 1 through 29 are incorporated by reference as if
set forth in full herein.
33. Plaintiff avers, upon information and belief, that Defendant wrongfully retained the
trust funds.
34. 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.
35. The Defendant's retention of the benefits conferred by Plaintiff without paying the
value of such. benefits would be inequitable and unjust.
36. 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 $8,933.48, 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. R. CHAM AND L.CHAM)
37. The averments set forth in paragraphs 1 through 34 are incorporated by reference as if
set forth in full herein.
38. The Trust Agreement clearly states that all money orders and trust funds are
Plaintiff s property.
39. 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.
40. 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.
41. By operation of law, Plaintiff is the owner and Defendant is the trustee for all assets
so commingled.
42. 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.
WHEREFORE, Plaintiff demands judgment in the amount of $8,933.48, as authorized by the
Warrant appearing in the attached Trust Agreement, together interest from the date of judgment
and costs.
Kevin M. Lutkms, Esq.
Attorney for Plaintiff
Attorney ID: 76859
Date: 7 Z-7 /_ZI
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 unsworn falsifications to authorities.
----------- -------
Danie
Merchants Express COURT OF COMMON PLEAS,
Money Order Company, Inc. CUMBERLAND COUNTY
PLAINTIFF
V.
Robin R. Chain , 2012
Individually, jointly and severally,
DEFENDANT
and No.
Lamin L Chain
Individually, jointly and severally,
DEFENDANT
and
Stop & Go Grocery Store
Sole Proprietorship
DEFENDANT
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, Merchants Express Money Order Company, Inc. 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:
Stop & Go Gorcery Store Robin Chain Lamin Chain
1095 Hightower Road, NW 3255 Country Walk Dr. 3255 Country Walk Dr.
Atlanta, GA 30318 Powder SpringszGC,3k-U -...- rtgs' £27
Daniel C. Oliva
SWORN to and subscl'ibred
before me this ( e"
,
day of Fr4wwd , 2012.
NOTARIAL SEAL
SHELLEY D HARRIS
Notary Public
CITY OF HARRISBURG, DAUPHIN COUNTY
My Commission Expires Apr 3. 2012
Merchants Express COURT OF COMMON PLEAS,
Money Order Company, Inc. CUMBERLAND COUNTY
PLAINTIFF
V.
--
a
Robin R. Chain 2012 ;Z: `--r'?'
Individually, jointly and severally,
DEFENDANT
and No. C-,
Lamin L Chain
Individually, jointly and severally, -'
DEFENDANT
and
Stop & Go Grocery Store
Sole Proprietorship
DEFENDANT
AFFIDAVIT OF NON-MILITARY SERVICE
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, 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 1940 as, amend.
- - - - -- - - - - - -
Daniel C. Oliva
d
SWORN to and su P
bef
ot is Of , 12. NOTARIA', SEAL
SHELLEY D HARRIS
Notary Public
CITY OF HARRISBURG, DAUPHIN COUNTY
Notary lic My Commission Expires Apr 3, 2012
EXHIBIT A
MERCHANTS EXPRESS MONEY ORDER OOMPANY/MEMO MONEY ORDER COMIPANY
PERSONAL MONEY ORDERTRUST AGREEMENT
THIS AGREEMENT is made betvtm MERCHANIS EXPRESS MONEY ORDER OOMPANY or MEMO MONEY ORDER COMPANY, d/b/a MEMO, Pennsylvania Corporations or
MEMO MONEY ORDER COWANY OF NEW YORK, E*,K d/b/a MEMO, a New York Corporation ('MEM(T) and the individual(s) and/or entities identified below, bereafter referred to as
Tnsree(s).
In consideration of the anmral promises contained in this agreement and intendin g to be kgaUy bound hereby, the parties agree as follows:
1. Agency. MEMO appoints Trustee to act as a special agent of MEMO at each of Trsstee's retail establishments approved for the sale of money orders issued by MEMO. Tnstee accepts such
appointment in accordance with the terns and conditions specified in this Agreement and in the attaclmed Rider herein incorporated and made a part hereof.
2. Trust Relationship. Tnstee shall receive and hold in test for MEMO all blank money orders delivered to Tnstee by MEMO and all money received by Trustee from the sale of money orders,
including without limitation. the moneyorder fees established byMEMO fromtime to time Cum funds"). Trustee shall hold the test funds separate and apart from other funds of Tnstm
3. Money Order Fees. In consideration of the services rendered to Tmstee by MEMO, Trustee shall pay MEMO a fee ("Money Order Fees") speed in the attached rider. Money Order Fees
maybe modified byMEMO at anytime upon thuty(30) days prior notice to Tnstee.
4. MaterialsSupplied byM EMO. For the sole purpose of selling moneyorders pursuant to this Agreement, MEMO will supplyTnsree with the following:
A An adequate supply of bank money orders, serially numbered and consisting of two or three parts: The first part being the money order instrumem itself (stub/pumbaser's receipt with
two
part); the second part being the -cur ring (store) copy; and the third pan being the purchasers copywith a three pan form
B. An agency instals ran folder containing adequate supplies of money order reporting forms, mailing labels, lost money order claim cards, stop payment forms and varies other forms
necessary for the continuous and on-going operation of a money cider program Furthermore, Trustee agrees to comply with all Federal and State regulations governing cunt ri ytnansxrocm
wpors and for reccad keeping.
C A money order imprinter of the qualaynnecessaryto imprint the money order dollar value firmly into the money order so as to irhu& the akeraticn of arryitem. Money order importers shall
be of two different types consisting of both electronic money order dispensers and mammal money order irriptinters. At MEMO's sole discretion, either type of dispenser shall be issued
to
agent. Manual money order dispensers shall contain an kknti[yinng plate, which shall read "MEMO" followed by the Trustee ID. number. Electronic rimy order dispensers shall be
programmed by MEMO to indicate Tnstee ID. number on mIxmted 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 Tnstee'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 moneyomders nut be approved byMEMO.
D. 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 Tnstee's premises
and to
inspect and perform an accura ing of, or raise its employee or agents to inspect and perform an accounting of, the cash receipts, Money Order Fees, the accounting (stone) copies of money
orders sold and the Tnstee's inventory of unissued money orders. A charge wmIl be assessed against Trustee to recover expenses incurred by MEMO when an audits made due to Trustee's
breach of this Agreement or if the audit discloses a breach (See audit fee/penaltyfee schedule).
6. Rules and Regulations. Tnstee shall complywith the following nmles and regulations:
A. No money order sball be issued or sold to anyone in payment of any obligation of Trustee or used in anymanner for Trustees own purposes.
B. Only cash shall be accepted as paymnem for money orders issued or sold. No check or other paper transmitted or deposited by Trustee to or for MEMO shall constitute a rem mta= w
MEMO until actuaflycollecred, MEMO to have the option in each case as to whether to deposit anysuch paper for collection.
C Trustee shall safeguard all unissued money orders and the money order imprinter with the highest degree of ore. The cam exesised 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 event, immediately upon discovery
of
the fact, but in any event not later than twermt)=four (24) hours prior to the money orders being preserved for payment to MEMO so that payment can be stopped on such missing or stolen
money orders. Such repeat shall be by telephone and minediarely confirmed in writing. Tnstee shall be solely responsible for all lasses arising from, and shall indemnify MEMO and hold
harmless regarding any anti all stolen or missing money orders as well as any money order' m[ rimets issued to Trustee. Furthermore, Trustee 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 Tnstee shall not be limited by Trustee's
commphance with the safeguarding, care, and reporting obligations set forth in this paragraph.
D. Trustee shall at all times murrain a sand financial position and provide current fimmanaal information to MEMO as requested byMEMO. Trustee shall conduct operations so that the funnels
generated from the sale of money orders will not be in jeopardy or seem in the opinion of a r aso rt;i& person to be in jeopardy and shall cease time issuance of money orders and notify
MEMO immedia*,, should such jeopardy arise. Notification to MEMO shall be made promptly by telephone and immediately confirmed in writing. "Sound Financial Conditicie shad
mean that there has been no material adverse change in time business, operations, condition (financial or otherwise) or prospects of time Trustee and that nneidner Trustee or any Guarantor
has
become insolvent, gencrallyunable to pay its debts as they become due, mnvoh ritzi]y suspended transactica of its btainess, made a general assignment for the benefit of creditors, instituted
a
proceeding described in Paragraph 7B or conserved to any such order for relief, declaration, finding or relief described tberein, incrir,te 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 pan of its propeny, whether or not any such proceeding is instituted, or has talon
arty
action in furtherance of any of the foregoing. A lack of sound financial condition shallalso iochmde when Trustee fads to pay, on the date which the same is due, any sum payable hereunder
or fails to pay its creditors generally or males repxesemazions to MEMO or to other creditors that it nest delay anysuch paymment under conditions which, in the soke discretion of MEMO,
it
appears that Trustee is no longer in a sound financial condition.
E. Trustee shall provide MEMO by facsimile transmmittah 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 with 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 Trustee's retail establishment where roneyorders are sold, Trustee shall sell onlyMEMO moneyordeis.
G. Trustee shall sell MEMO money orders only at Tnstee's specifrady approved places of business or future place of business as approved bylvEMO.
I i Tr stm 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. Term of Agreement: The teen of this Agreement shall run for a period of three (3) years from the date of this Agreement and shall renew automatically for successive three (3) year
periods.
After the initial three-year term of this Agreement, Trustee mayterninate this Agreement upon six (6) months prior written notice to MEMO, and MEMO may terminate this Agreement upon
shay (60) days prior writtem notice to Trustee. In the evert Trustee does not provide proper temnination notice, Tnstee shall be responsible for lost fee income to MEMO forthe duration
of the
contract in effecr. Fee income shall be old using Trustees most recent 10-week sales avenge. Notwithstanding the foregoing, MEMO may terminate this Agreement at anytime, immediately
and without once, and/or enter judgment according to the provisions of Paragraph 11 hereof, upon the happening of anyof the following events:
A MEMO or its designated cheek clearing banking center does not receive the accounting doaurnemation or payment of nest funds (inhering money order sales proceeds and money order
fees), within the time period and on the tears specified in the Rider to this Agreement.
B. Tr stm or any Guarantor commits any act of insolvency, or upon the filling by Trustee or any Guarantor of any petition under any bankruptcy, reorganization, insolvency, or moratomrn
law, or any law for the relief or, or relating to debtors; or the filling of any involuntary petition against Trustee under any bankruptcy staate, or the appointment of a mecemver or
trustee to rake
possession of time property or assets of Trustee, or the subjection of anyTnstee's property or assets to anyl evy, seizure, assignment or sale for or byanycreditor or governmental agency.
C The nonperformance byTnsree of anyoblgations of Trustee pursuant to this Agreement.
The happening of any of the foregoing events shall be a default under this Agreement: and, without any notice from MEMO, constitute a defauk under any and all agreements of Trustee and/or
Tnatee's guarantor(s) with Consumer Payment Services, or any other related company.
8. Termination. Upon the expiration or temination of this Agreement, Trustee immediatelyshall deliver to MEMO all cash receipts from the sale of mor y orders, moneyorder fees due MEMO,
accounting (store) copies of money orders issued, the money order imprinter and any and all materials or documents provided to Trustee by MEMO Pursuant to this Agreement, including,
but not
limited to, all blank money order fours. All obligtion, covenants, liabilities, and indenmities of Trustee hereunder shall survive the expuatim or termninatim of this Agreement. A temrinatian
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 tin under paragraph 7 hereof or
upon the entryof confessed judgment whichever first occurs.
9. Confession of judgment. Trustee hereby irrevocably audwrizes and empowers any attomey or the Prothonotary or Cledt of any court of record, upon or after the occurrence of any
event described in paragraph 7, W 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 (%%), and for any other sums due MEMO under this Agreemnt,
together with expenses and cost of suit and reasonable attomey?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 Banknuptcy 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 Cleric, shall be suflicierrt warrant The remedies of MEMO as provided herein and the warrants obtained herein shall be enforced in accordance with the
tuemu 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 far one to
exercise any such right or remedy sball in no event be construed as a waiver or reline thereof The authority and power to appear for and confess or enter judgment against
Trustee shall not be exhausted by the initial exorcise 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 Wanarit therefore. One or more judgments may be confessed or entered in the same or dif6ererrt counties for all or part of the
star described in this paragraph. In the event any judgment entered against Trustee hereunder is stricken or opened upon application by or on Trustee'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
Trustee; subjeM however, to the limitation that such subsequent entry or confession of judgment may only be done to cure any etrors in prior proceedings, and only and to the
extent that such egos are subject to cute in the late proceedings.
10. Liability. Tnatee, regardless of Tnmm freedom from negligence or other fm* sban be absohrrelyLa :
A To make remittance to MEMO of the face amount of all coney orders sold, the applicable Money Order Fees, and all other monies due MEMO under this Agreement, regardless of die
r135terious or non-n*wicas disappearance 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 MEMO the total amount of all suns of money that may be expended by or for MEMO in paying any coney orders delivered by MEMO to Tnstee 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 Trustee shall have fully perforcrx-d
Trustee's duties under this Agreement.
11. Indemnity: Trustee shall indemnify, defend and bold harmless MEMO from and against any and an losses, damages, liabilities, claims, actions, suns, proceedings, judgments, assessments,
fines,
penalties, casts, interest, and expenses (urckrding, bit not limited to, settlement cast and reasonable legal and accounting fees) sustained by MEMO resulting from or arising out of
any act or
om issnn to act, whether honest, dishonest, negligent or offimvise bryTmstee or Trustee's employees, agents, associates or representatives (whether within or without theirscope of performance).
12. Security. As further consideration of appointment by MEMO as its agent, and in order to protect MEMOS property from conversion, Trustee hereby grants to MEMO a com mining security
interest in Trustee's bank a court, inventory acom receivable, assigntment 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 limned to, recorded LLbiform Commercial Code-Fioanaal Statement (UOCI(s)) fillings. Furthermore, MEMO reserves the right to require additional
collateral as it deems necessary for ongoing approval and for the daratim of the Agreemrnt In the event Trustee changes ownership m Tnstee's business m any tamactim similar to those
set
forth m paragraph 6(E) bemeof, 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 corruminications under this Agreement shall be in writing and addressed as follows:
IF TOMEMO MEMO
P.O. Box 8863
Camp Hill, PA 17001-8863
IF TO TRUSTEE: See attached Rider
14. Choice of Law. This agreement shall be construed under and in accordance with the laws of the Commonwealth of Penmsyfvan>a, disregarding any rules relating to the choice or conflict
of laws.
The parties consent to venue anti personal jurisdiction in Cumberland County, Pennsylvania, or, m the case of MEMCYs exercise of rights under Paragraph 11 hereof, m 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 or any breach or
of any
provision of this Agreement and shall not prejudice the right and/orpawer of MEMO to proceed as fullyas if it bad not failed to enforce anyprovision of this Agreement.
16. Enforcement In the event of default under the tears of this Agreement, Trustee agrees that MEMO shall, in addition to an rights it night have under the law, have the right of seelang
specified
performance m the court of equity. Furthermore, Tnatee agrees to consent to the jurisdiction of a court of equity regarding the enforcement of this Agreement and/or the enforcement:
of
MEMO(s) riglmts in the event of anydefauk byTnmstees.
17. Cost of Enforcement Trustee shall pay, on demand by MEMO, an costs and expenses including reasonable atinmmme3?s fees incurred by MEMO in connection with the enforcement of this
Agreement-
18. Construction. An meferences in this Agreement in the singular sball be construed to imchmde the plural where applicable and the masculine shalt include all other genders. An covenants,
agreements
and obligations m this Agreement assumed by Trustee shall be, amt shall be deemed to be, joint and several convueoants. Headings of the paragraphs of this Agreement are for convenience
only
and do not limns, expand, or otherwise construe the provisions or contents of this Agreement.
19. Entire Ageement This Agreement, together witlm all attachments and riders, related security documents and such roles and reguhrions as may be prornu lpM by MEMO for the issue of
money orders from time to time, shall constitute the entire agreenent between the parties he=. There are not other agreements or understandings, warren or oral, between the parties with
respect to the subject mater of this Agreement. Theme shall be no modifications, amendments, or akemations to this Agreement unless agreed to in writing, signed by an parties. This Agreement
shall bind and inure to the benefit of the parties, their respective heirs, successors, representatives and proper assigns.
20. Tim f the Essence. Time is of the essence inthis Agreement and the Rider.
Date: i 03 _ TRLBT
MERC H ANTS EXPRESS MONEY ORDER OO&TANY/ Corpor
MEMO MONEY ORDER OOMPANY/
MEMO MONEY ORDER OOMPANY OF NEW YORK, INC Signaar
Tmmsree
By
Trustee
T
Trustee
Trustee
NYA 1999
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. Any changes to this Rider shall serve as an authorized addendum to the original Trust
Agreement if properly executed by both parties.
TRUSTEE:
Corporate/Business Name
MW-M, lap
ty V
Street Address] 5 `(
Telephone Number 04?-- 4215-7 Fax Number.
Legal Entity. lJ Corporation ll I.LC El Partnership
Agent Number /092-c20
gj-'3'ole Proprietorship
MONEY ORDER FEES:
Money Order fees shall be based upon the weekly volume of 6d Money Orders sold by Trustee.
Trustee's Money Order fee shall be $ 4?? per item at a maximum retail selling price of
$ i 7f . Money Order fees may be modified by 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.
7(?V .?
C. The face amount of any money order sold by Trustee shall not exceed the sum of $ 1
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.
E. If the money order imprinter is not in proper operating condition or properly inked, Trustee shall immediately
report such fact to MEMO Help Line at 1-800-864-5246.
State 6-4- Zip Code .34a-;7/,P
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.
TRUST FUNDS REMITTANCE:
The Trustee with an electronic money order dispenser will be forwarded a weekly Money Order Sales Summary
Report, prior to the week ending the sales reporting day. The weekly Money Order Sales Summary Report will reflect
the money order sales for the applicable reporting period.
SALES PERIOD:
BEGINNING DAY ENDING DAY REPORTING DAY CI-I/ WIRE
t
The Trustee will be provided all pertinent reporting information on the weekly Money Order Sales Summary Report,
of which MEMO will initiate an electronic transfer of funds to move the face value plus fees due MEMO from
Trustee's to MEMO's bank account. In the case where the Trustee is on wire payment terms, Trustee will initiate a
wire transfer of the money order sales amount for the specified reporting period, from Trustee's to MEMO's bank
account. All funds due MEMO must be available to MEMO at that time. Any outstanding statement balances that are
due during this time will be included in the electronic transfer of funds and the wire transfer, as a debit due MEMO or a
credit 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 Reporting Period, Trustee will not be provided documentation as such, nor will an electronic transfer
of funds for money order sales be initiated by MEMO to Trustee's bank Trustee will be charged for all money
orders that are electronically transmitted from the money order dispenser as an amount. Any voided money orders
should be voided in the money order dispenser to avoid a charge 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 is not polling consistently, Trustee must provide MEMO with the
money order sales information upon MEMO's request. Trustee must have an authorized employee available to
provide MEMO money order sales information by preparing the money order dispenser to transmit polled data via the
telephone. If the money order dispenser is not polling consistently on Trustee's specified Sales Reporting day,
Trustee must have an authorized employee available for a manual electronic polling transmission and to report money
order sales to MEMO. Trustee must assure the telephone line is consistently connected to the money order dispenser
and the telephone extension. Trustee shall ensure the money order dispenser is never turned off, unless authorized by
MEMO.
WEEKLY AG OUNTING AND REMI
TT
On and of each week, MEMO will calculate a
weekly money order sale total from daily data obtained from T e via electronic polling transmission of the money
order dispenser. ME O will forward the weekly Money O 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 at its location for a period of three months from the
reporting period. Trustee shall forward the accounting (store) copies 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
MERCHANIS EXPRESS MONEY ORDER Cb.
Corporate/Store Name
i Date
Date /,z "2j? - U,g=
ELECIR0MC/J*22, 1999
EXHIBIT B
PERSONAL INDEMNITY AND GUARANTY
Intending to be legally bound hereby, and in order to induce MERC HAMS EXPRESS MONEY ORDER COMPANY or MEMO
MONEY ORDER COMPANY or MEMO MONEY ORDER COMPANY OF NEW YORK, INC ("MEMO") to sign that certain
Personal Money Order Trust Agreement and the Rider and amendments or changes thereto as may be in effect from time to time
(collectivelythe "Agreement") J A n
Corporate/Business Name
Street Address , /!rCity Q?1 L Stab Zip Code d,' O
and in consideration of i s 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 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 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.
Guarantor's Signature Guarantor's Signature
Po st.,
Print Guarantor's Name
Print Spouse's Name
Home Address
6 a-7 &?"
Home Address
!E ern H To) -:,7?? 1
City State Zip Code City State Zip Code
Date Date
"If not married, please indicate by affixing "N/A" on line for second Guarantor's signature.
J„ ty 22, 1999