Loading...
HomeMy WebLinkAbout05-5577 Magalie Garcia Individually, jointly and severally, DEFENDANT Merchants Express Money Order Company PLAINTIFF v. and COURT OF COMMON PLEAS, CUMBERLAND COUNTY ,2005 No. ;))05'- J57-7 c-,':, ( Moise Garcia Individually, jointly and severally, DEFENDANT and Maggie's Store 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: Interest: Lost Fee Income: Attorney Fees: Total: $ 5,240.94 $ 1,139.80 $ 1,109.16 $ 1,572.28 $ 9,062.18 4#-. Kevin . Lutkins, Esq. Attorney for Defendants Merchants Express Money Order Company PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY v. Magalie Garcia Individually, jointly and severally, DEFENDANT ,2005 and No. 05- S-.j-'"J7 (][J -r;~ Moise Garcia Individually, jointly and severally, DEFENDANT and Maggie's Store Sole Proprietorship DEFENDANT COMPLAINT IN COFESSION OF JUDGMENT FOR MONEY I. Plaintiff is Merchants Express Money Order Company (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 Maggie's Store (hereinafter "Maggie's Store"), is a sole proprietorship doing business at 685 N. Main Street, Brockton, Massachusetts, Pennsylvania 02301. 3. Defendant Magalie Garcia (hereinafter "Mrs. Garcia"), is an individual residing at 320 Battles Street, Brockton, Massachusetts, 02301 and is the wife of Defendant Moise Garcia. 4. Defendant Moise Garcia (hereinafter "Mr. Garcia"), is an individual residing at 320 Battles Street, Brockton, Massachusetts, 02301 and is the husband of Defendant Mrs. Garcia. 5. Defendants Mr. Garcia and Mrs. Garcia are the owners and/or operators of Defendant Maggie's Store and entered into the Trust Agreement on behalf of said Defendant and themselves on or about February 7, 2004. A true and correct copy of the Trust Agreement under which Defendants Mr. Garcia, Mrs. Garcia, and Maggie's Store are confessing judgment is attached hereto as Exhibit "A". 6. Defendants Mr. Garcia and Mrs. Garcia, with the intent to induce MEMO to enter into a Trust Agreement with Defendant Maggie's Store, entered into the Personal Indemnity and Guaranty on or about February 7, 2004. A true and correct copy of the Personal Indemnity and Guaranty under which Defendants Mr. Garcia and Mrs. Garcia are confessing judgment is attached hereto as Exhibit "B". 7. The forgoing judgment against Defendants Mr. Garcia, Mrs. Garcia and Maggie's Store, 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 $9,062.18 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 February 23, 2004 until August 5, 2004. II. 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 Plaintiffthrough electronic or other means. 12. The Plaintiff attempted to collect the trust funds from Defendants on July 28, 2004, 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 July 28, 2004 as required by the Trust Agreement and the Remittance by Electronic Funds Transfer agreement dated July 16, 2004 (hereinafter "Rider"). A true and correct copy of the Rider is attached hereto as part of the Trust Agreement in Exhibit HA". 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. Pursuant to the Trust Agreement, the Plaintiff suffered damages by the Defendants conduct as follows: Principal: Interest: Lost Fee Income: Attorney Fees: Total: $ 5,240.94 $ 1,139.80 $ 1,109.16 $ 1,572.28 $ 9,062.18 16. The Defendants' most recent estimated] O-week sales average equaled 12 money orders causing Plaintiff Lost Fee Income of $1, I 09.16 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. ]8. The Warrant of Attorney contained in the Trust Agreement is less than twenty (20) years old. WHEREFORE, Plaintiff demands judgment in the amount of $9,062.18, as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee Income, interest from the date of judgment and costs. p...... , Kevin . Lutkins, Esq. Attorney for Plaintiff Attorney 10: 76859 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. JcJ. David W. Bush Merchants Express Money Order Company PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY v. Magalie Garcia Individually, jointly and severally, DEFENDANT ,2005 and No. Moise Garcia Individually, jointly and severally, DEFENDANT and Maggie's Store Sole Proprietorship DEFENDANT AFFIDAVIT OF ADDRESSES COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: The undersigned being duIy 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: Maggie's Store 685 N. Main Street Brockton, MA 02301 SWORN to and subscribed b" h' /),,'-- elore melt IS ( I day of~, 2005. !l ,{}b m blic //;'- COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer R. Hamelin, Notary Public WormJeysburg Boro, Clunberland Counly My Commission Expires July 12, 2008 Member, Pennsylvania Association Of Notaries Merchants Express Money Order Company PLAINTIFF v. Magalie Garcia Individually, jointly and severally, DEFENDANT and Moise Garcia Individually, jointly and severally, DEFENDANT and Maggie's Store Sole Proprietorship DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY No. ,2005 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 ofthe 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 rwise within the prOViSU'O s of the Soldiers' and Sailors' Civil Relief Act of Congress f I as amend . ,.. SWORN to and subscribed . .0 'I"" before file tl;lls "- day of OC+.lv::r ,2005. COMMONWEALTH OF PEN".3YLVANIA Notarial Seal Jennifer R. Hamelin, Notary Public Wormleysburg Boro, Cumbe~and County My Commission Expires July 12, 2008 Member. Pennsylvania ,AsS('U:;ll;ljl('l.... ~f ~lotar!e~ DavId W. Bush MERCHANTS EXPRESS MONEY ORDER COMPANY/MEMO MONEY ORDER COMPANY PERSONAL MONEY ORDER TRUsr AGREEMENT 1HI5 AGREEMENT;' mode between MERrnANTS EXPRESS MONEY ORDER COMPANY, d!b!. MEMO, MEMO MONEY ORDER COMPANY, d/bf, MEMO, P'''"'YMmia Coqxm>ri"'" or MEMO MONEY ORDER COMPANY OF NEW YORK. INC., d/b/. MEMO, . Now Yod< Coqx>Mioo, or my ...bOOlluy d/b;'; MEMO ,MEMO') md the imliWlwl() ard/orentities identified bdO\V, hereafter referred to asTrustee(s). S ln~ofthe"""'"~<:<>ntUn<d;"tlUs ~.ro~tobekgalIyboundh=~,thel""i<sogree" foll""" t. Agency. MEMO appoints TIUStee to act as aspeci:al~ofMEM:O atead1ofTrust:ee's retail establisbmotts approved for the sale ofmoneyocdo:s issued by MEMO. Trustee accepts such ~;,,~with the """".ro<X>Oditioo. '!'<'ified;" tlUs Ag=neot.ro;" theotl2d>OOlWahoOn~.ro >mde . port be<rof. 2 TRlSt Rdatioosbip. Trostec shall receive and hold in tlUst foe MEMO aU bbnk money Otder:s ddiveted to TlUStee by MEMO and aU money reo:ived byT1UStee from the sale of rooney CIldern, ~_ _cion the mooq oaIo< f= ~ ~ MEMO from time to time ,,,",, fuods'). T= WII hold the """ fun<k "P""" ond 'P'" from o<htt fun<k ofTrusrre 3. MooeyO"'" Fees. In ~ of the ='= rendered to T= ~ MEMO, T"""", WII I"y MEMO. fee ,"M""'l' oroe" Fees") sp<cifi<rl;" the ~ ride<. Morey o.h F= ""y be <OOdi&d ~ MEMO "my On!< upon dDtty (30) doY' P"'" notic< to Tn= . 4. ~ Suppli<d by MEMO. Fo, the ooIe P"'l"'" of.,u;"g mooq oroe.. 1""'""" to Ihi< Agrem><n~ MEMO will "'!'Ply Trusteewith the f~ A M odeqwtr "'PP1y ofbbok mooq oo:I<>s. oeriolly numbered ond ~of two or threep"'" The fustport bOng the money oaIo<~d,df(stob/pun:h=t, =riptwrth two pm); the oxond port bOng the =oontiog ("=) ropy;.ro the thinl port bOng the pun:h=t,,~ with. three port fotm B. M og<ocy '-Ibtion fokh ronbiruog odeqwtr "'PP'" of money oaIo< repo<ting rom", nuiliog labek, Io.t money o<de< dUm ."ro" ""P P'Y""'" f""", md wriou< o<htt fo,,", n==y for the ~.ro Dn-go;og opemrion of. money oaIo<progrnn Furthamwe, TnNee '8'= to '''''l'1y with,n F<der.I.ro Stm ~ goo=Uog ==<y """"'""" "J'O'1S.ro for =><d keepU>g C. A mooq ooIet Unpriot<r of the quility """""Y to ~ the money ooIet doIb<...., 6nnIy U>to the money oaIo< SO" to ttiliib< the oIt=tion of my;rem M""'l' ooIet ~ WII be of two _ typ<s ~ ofboth dedrooU: money ooIet ~ ond momoI money ooIet Dnprinl= Iu MEMO', ooIe d6aetioo. ~ type of o;!;;pet= WII be <=d to '8""- M.....I money ooIet ~ WII conmin '" iJentifyU>gpbtt; wlU<h WII reod "MEMO" foIIow<d by the T..- ill.......- Ei<aronK; mooq ooIet d6p== WII be p...,.......cd ~ MEMO to ;,,&,teTnNee ill. oumbe<<",Dnprint<d mooqO<d= Su<h money ooIet~ WII ",n times <:onbwe to be the wi: property of MEMO md WII DOt be """,..j from the Trustee', ...a _ where. _ ocigU>.Jly U>sl2Ikd ~ MEMO. Any o<htt mooq oaIo< ~ DOt own<<! ~ MEMO ond =d ~ TnNee to ;,q,riot mooey onl= "'"" be "f'I"OV'd by MEMO. D. Such advertising mato::ial. as MEMO in its sole discretion shall detornine. 5. Right to anAccountiog. Notwit:hstmdingury other provision oEthis AgrI=mxnt. MEMO shall ha.ve the right, at aU reasonable times. with or without notice, to access Trustee's premises and to npett ond pmonn '" =oontiog or; or ""'" .. .,..poyees or _ to irnp<ct .ro pedoan '" oo;ounting or; the =I> ~ Morey <:l<d<< F=, the oo;ounting ("=) oopio< of money ooiets soldm the Trostee's inventory of1rissued nx:mey ordo:s. A charge will be assessed againstTnJStee to recoverexpmses incum:d by MEMO when an audit is rmde due to Trostee's b=hof""'~or;rtheoud<d6do6es. bread>. (See oud<fee/ponolty fee,_, t\. RuIcs and R<gu1aDoos. T nNee ,h.n ""'l'Ir with the fuIIowmg rules ond regu],rio= A. No mn:y order shaD. be issued or sold to myone in payment of any obligation of Trustee or used in any manner for Trostee's own purposes. B. Only cash shaD be accepted as paymmt for rmney orders issued or sold. No check ()( other paper b.........itll.J or d:positx:d by Trustee to DC fix MEMO shaD. coostitute aremittmce to MEMO until actually collected. MEMO to have the option in e.teh ase as towhether to deposit my such paper forcoIlection. C T rostee shaD safeguard all unissued money orders and the money otder irr.printl::r with the high=st degree of cue. The Clte exercised in reg:ud to money orders shall be at least as tint: ~ to =h. T,","" WII report to MEMO the,.,;,j oumbe< of _ mooq oaIo<.rol<n or~.ro,not!><<;"[ormonoo reIatiog to the = ~upon "==rof the f.u:t, 00t in any evmt not bter than twenty-four (24) boors prior to the rMneY 0tdeIs being presented for payment to MEMO so thar payment can be stI:lf1Xrl on such missing or stolen money oroe... Sum report WII be ~ tdephooe ond Un.noJ;atdy ,oofurr<d ;,,~. T""'ee WII be soIdy ""1''''''"* fo<,n 100= .,;,;"g from, .ro.mn U>d<moify MEMO,oo hold hmnIess regarding any and aU stolen or missing money orders as well as any money otder irrprinteIs issued. to Trustee. Furthermore; Trustee sh:dI be responsible forrepair or replacementof any issued. money order ~ stolen or damaged as a result of misuse, negligence, abuse, fire or otherwise. Said responsibilil1' and Iial:Clity of Trustee shall no!: be Jimirro by Tn.IStee's <O<npIian<e wrth the ~ cue, ond repo<ting obOgaciom '" forth;" tlUs P""'&"'Ph. [l. Trustee shaD. at an times maintain a sound 60ancial position and provide o.ment financial i:nfoonation to MEMO as ~ by MEMO. Trustee shaD. condx:t opemtions so that the funk generated from the sale of money ordezs wiD not be in jeopa1dy nor seem in the opinion of a reasonilie person to be in jeopardy and shaD cose the issuance of money orders and notify MEMO ~, mould _ joopmly '"'" Notilicttioo to MEMO WII be mode f""Ol"ly ~ tekphone.ro Un.noJ;atdy ooolian<d ;" writiog "Souod Mo.ncid eooo;cion" Wll mean that Ih:re has been no rmt:eIial ~ change in the 00si:0ess. ~ coodilion (6nanciaI. or otite:rwR) or prospedS of the TIUStte ani that neidx:r Trustee or any GWl'lIIltor has becomo ~ gen=Ily umble to I"y......... they becomo <h; invoIuntuiIy ~ """""'" of.. bum>=. mode. g<n=I ~ for the bm<fitof aedilxn. ~. pco=dU>g d<:s<ribcd;" P""8"'P"- 7B or ~ to ""f ...m oaIo< for reI;,f, do:Imtioo, fiOOogor reIrldesailicd therOn."""'""'. pnxeedD>g desailicd;" Pwgr.oph 7B or ~ to my...m oppo;narent or to the taIcitl! of ~ by "'y...m officio! or ,n or ""f...ootantW port of.. property, _ or not my...m pnxeedD>g;, ~ or hos tilin ""f action in furthet:mce aEmy of the foregoing. A lack of sound financ:iaI cooditioo shall also indude when Trostee &iIs to pay, on the datewbich!hesame is<hle, anysumpayWJe hetmnder or fiUk to I"Y" """"" gen=Ily or".,m, repo=otationo; to MEMO or to o<htt =>toG ""'.""" dcl.y ""f...m P'Y""'" uncia <X>Oditioo. wIDd>,;" the wi: """""" of MEMO, ;, appears that T rostee is no longer in a sound 6nancial coodi.tion. --.E: - Tl\illee- dWl Pfl)~~~()byi:Icsimil~ttal or r~ed maiI three @ weeksadvlll1l:e-notice~f.p!!p'osed -chanp;e{s) -in !tte-awnership of citherTrlf5~'s business. m dte management of Trostee's business, dte we of fifty-one percent (51%) oemore ofTrostee's assets, or the entry into or termination of business affiliated with Trustee. Transactions included within this paragraph 6{E) include tnnsfer of stock of Trustee, sale of partnership, interests, limited liability company or partnership's interest or any similar tnnsaction which effects a change in ownership or control of Trustee. No such ttansaction shall be appmved until any successor entity, if any, has entered into appropollte documentation, including a trust agreement. No transaction, discussed in this subpangcaph, shall be effective without the poor written appro'ftl 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, slull remain liable for the payment of all swns 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. IuT"""""s...a~wh=mooqonl=""soiJ, TnNee'h.J1,dIonly MEMO money O<d= G. TnNee WII,dI MEMO monq onl= only "TnNee" 'P"ificolly opproved pl= of""'""'" or lUtwe pI= ofbusinols.. 'W"""'i by MEMO. R TIUStee shall remain openduOngthecourse ofllOlIIlal business hoots focthedw:ationofthisagrttmeni:. Failure to do so shaD const:itutea bmachofthis~ 7J Tcnn of Ag=mm< The tmn of tlUs ~ WII run for. period of five (5) y""" from the dote oftlUs Ag=neot.ro WII =<W ~ for """"""" five (5) y=period;. AJio< 1he;o;tW five.y=tmnoftlUs Agrecm<ot, TnNee""ytemDmte tlUs Agrem><nt oponOx (6) mooth.priorwrittmnotic< to MEMO,.ro MEMO""y """'-""'~opon Oxty(6O) days prior writtm notice to Trustee. In the event T IUStee does not prome proper tmnination notia; Trustee shall be <<:spOOSibIe for lost fee income to MEMO for the duntion of the contract 111 <If"" Fee u.:ome WII be cokuhred usU>g Tru= <rnst =< 10-week.,.)e, .~ N~ the foregoinr. MEMO ""y temDmte tlUs J\g<eem<<<" ""f rim; imndatdy ond withwt notict; -md/ or enter judgment acconiing to the provisions ofPar:tgr.1Ph 11 hereof, U{KXl the happening of any of the following ~ts: MEMO or its designated check -ck2ring banking center does not receM= the accounting documentation oc payment of trust funds (tnduding money onlet sales proceeds and money onier f=), witrun Ihe time period "'" on the rem. sp<cifi<rl;" the Ride< to tlUs Agreonmt B. Trustee or any Guarantor cornrniG any:let of insolvency, or upon the filling by Trustee or any GWl'3ntor of any petition under any bankruptcy, reotgmizarion. insolvency, or moratarium law, or any law for the relief or, oc reIaIing to debtors; or the filling of anyinvolunwy petition against TnlSreeunder any bankruptcy statute, or the appointment of a receiver ornustt:e to 00 possession of the property oc assets ofTrosttt; oc the subjection of any Trustee's property orllSSdS to any levy, seizure, assignment or sale for or by any aeditor or government1l agency. C 1be non+perfOOTl:l!lCe by Trustee of any obligations ofT IUStee pursuant to this Agreem=nt lht h1ppering of any of the foregoing events shall be a de&ult under this Agreement and. without any notice from 1vfEl\.1:O, constitute a default under any and all agreements ofTm;tee and/or Tl'.lStee's guarantor(s) with Conswner Payment Services. or any other related company. In the event1-18vlO terminates this agreement due to a default, Trustee shall be re:,;ponsible for lost fee inCOlTk: to l\ffiMO for the duration of the contract in effect. 8. Tennin...tion. Upon the expiration or termination of this Agreement, Trusteeimmediar.ely shal1 deliver to.MEMO all ClSh receipts from the sale of money ordets, money otder fees due .MEMO, :lCCOCll1ting (store) ~ of money orders issued, the money ordec imprinter and any and all materials oc documents provided to Trustee by MEMO pmswnt: to this Agreement, including. but not limited to, all blank mooey order forms. AD obliga.tion, covenants., liabilities, and indemnities of Trustee hereunder- shan sucvive the ocpmuion or tenninatioo of d1is Agreement A termination notice provided. by MEMO foc any reasoo other than the expiration of this Agreement shall be effectiVe as of the happening of any such event ClUSing tttmination under paragrnph 7 hereof or ~ the ""'Y of <OOf...."j judwnent. whi<he= Wst """"'- 9. Coolessioo ofJudgmmt. Trustee herdJy inevocably authorizes and unpowas any attomr:yor the Prochonotuy or Clerk of any court of record. upon or after the ooc:urreoce: of any event dcscriJed in paragraph ,) to appear fOr and to confess or enter judgment against Trustee fOr the face amount of aD. money ordeas sold pwsu2IlI: to this Agreement. the applicable Money Order Fees, llCaUCd interest thereon, intcm;t expense not to o:cecd eigIdcen percent (Wit), and foe any ~ sums due MEMO under this Agreement, together with o:pcoscs and am of suit and reasonable attorney's fees and said fees POt to exceed thirty pen::ent ~/.) of said amount and sums, for oollection as provided hm:in a.c&odmg oDl<galfecs _;" any BonIouptcyofTms.... Fouuch puq>ose, tbh Ag=mcut oc a copyhen:olverifi<d by affida..byT...... ocon bchaIf ofTms... by said attomcy, Prothonotary 01' Clerk, shaD be suf6cieot warrant. 'The amalies of MEMO as providm. herdn and the wxraotS obtained herein 8haIl be cMorced in accordance with the tams of tbh Ag=mcut and ""'YJ>e punued oiogIy, """"""Wdr, oc tog<1I= at the ooIe _ of MEMO and as ollcn as ..,.,...", -.., shaD OCCU<. TIi< WIure '" c:xercisc any such right or ronedy shaD in no event be coostrucd as a waiver or rdease thcn:ol. 'The authority and power to appear for and roufcss 01' cnttt judgment against Trustee shaD not be exhausted by the initi:d exercise ~ and the same may be o:etciscd, &om time to time, as often as MEMO sbaD dec=m neassary and desirable, and this AgIttment or a oopy hc:Kof shaD be a sufficient Warnutt therefore. One or more judgmem:s may be ronfesscd or c:ntcred in the same or di:ff'ermt oounties for aD. or part of the sums desamed in this paragnpb. In the event any judgment enten:d against Trustee lIc:reundeI' fi stri<:ken or opened upon appIicatioo by 01' on TRlStee"s bdWf for any reason Vlr'hatsoever, dxn any attorney or the Prothonotaty or Clerk of any oourt of record is hereby aud1Od:ted and empowered to again appear for and confess or alter judgment against T rosttt; subied. bowevtt, to the limitation that such subsequent entl}' or ronfession of judgment may only be done 10 cure my errors in prior proceedings, and only and to the extent that such tn'Of'S are subject to aue in the late proceedings. 10. Uahility. Tmst<e,reganllessofT""""'_from~oco<herf.wlt,d>aIlbeab.olutdy6able A To moke ~ '" MEMO of the Iiocc amouot of all money oroe.. sold, the app6cabIe Mooey om.. Foes, and all o<hermon;", due MEMO uro.. this Agreement. reganIIess of the mysterious or ncn-mysterious dtsappearmce or hss of any funds from Trostee's possession by n:ason of tile honestoc dishonest act of anypo:son, act of God, or oIherwise. B. To"",," '" MEMO the 1Dl2i amount of all sums of money that may be e<pend<d by '" foc MEMO io payiog aoy mooey oroe.. deliv=d by MEMO '" T= that "'" ~tIy ~ fix payment, _ '" oot MEMO;' legally tiabIe '" pay the ""'" 1m .>hpo~ d>aIl oot apply '" aoy money """"" '" wlich T= .ball have fuDy perli>m<d T"""",', duric; uro.. this Ar/=n<nl II. 1Dd<mody. T..- d>aIl iodemnUY, defeod.oo 00Id I=nIess MEMO from.oo ag>Uost aoy and all """" dunagco. );abiJ;ri<s, o:lattm, actiom,..... ~ judgmeoJs."""""""" fine;, p=oItie;, ""'" ""'=t. and "'P""" (~ rot oot IioUted to, _ ""' and '""""'"* i<gal.oo occounliog f=) sustaioed by MEMO ..,.,)tiog from '" .miog out of "'y oct 0' ""'"""""'oct, -ha=. ~~ ",othaw;,e byT= ",T=', "",Ioy=._...oo..", ocrep=eolali= (whethe<~",_tlWocq>e ofp<<foumnce). 12 Securily. As lUrth<< ~ of ~ by MEMO,,;" _ and io <X<h '" _ MEMO', property from conv=kJo, T..-heri:by rP"" 00 MEMO a rontiouing """"'r intttest in Tn.ISb::c's bank account, inventory accounts receivable, assigrrnent ofbse, and fixtures at all Tros= kx:::ariocs.. TtuSteeagree& to ~aIl docummtx necessaty to aeak ocpetfect ""'" """"'r""'=t. ~ rot oot]io;red to, ~ Uoifuan <:ornmema1 Codo-Pmancial ~ (UCC1@ ~ ~ MEMO == the right '" requm, ao;Id;riooal coIbt:eml as it dettns ~ for ongoing approval and for: the dmuion of the Ar/=n<nl In the event Trustee changes ~ in Trustee's bJsinas in 'J1t'f trmsaction simlac to those set fooh io ~ 6(E) hereof; _ pri<x ooOce.oo opproval by MEMO" '" fooh thocin, T"""", h=by gr.>nlS a =urity""""';" the pro=<h of aoy rod> t==tion uotiI rod> time" an~tIUstaccountis~ 13. Notices. Except as otherwise stated, aU notices, correspondence, and communi~tions under this Agreement shall be in writing and addressed as follows: IFIDMEMo. MEMO IFT011UJSIm &<alI>Ch<dRida P.O. Box 8863 Guq>HlI,PA 17001-8863 14. Q>Oke of Law. 1m og=m<nt_ be ~uro..and;" ~_ the laws oftheCooxoonwealthof~~aoyrob<ebring"'!be cluj", ",cooJlrtoflaws. The palties consent to venue and personal jwisdiction in Cumberland Cc:ullJ, Pennsylvania, or. in the case of MEMO's exercise of rights under Paragraph 11 hereof. in any other court of recotd in Pennsylvania 01" elsewhere. 15. Non-Waiver. The &iJure of MEMO to enfotte any provision ofthi<i Agreem:nt 01 its f.lilure to declare a de&ultunder this Agreem:nt shaD not coostitute a waiver ocany b:elch or of any ~ of this Agreem:nt.oo d>aIl ootprejuWce the right.oo;", pow" of MEMO "'proceed" fully '" tttthod not &aed to mfo= "'yproWioo ofm;, Ar/=n<nl 16. EofunxmeDt. In!be..<nt of dd3uk uro..!be """" of tbs Agreemen, Trustee agrees that MEMO m.I, io ad<fuion '" all righG;, n>ght have uro..the law, have the right of =Iciog ~ p<<foumnce io the coort of.,,><y. Fw:thennore, T= agrees '" """"'" '" the jurisdidion of a coort of equdy regan:ing the mfm=nont of !hi; Ag=no:nt and/oc the enfu=n<nt of MEMQ(') ~;" !beevm<ofaoydd3ukbyT-= 17. Cost of Ilnfotcancnt. Trustee d>aIl pay, 00 demaod by MEMO, all 00<1> md "p""" iocIudiog rearonabIo ottom<:y's f= ~ by MEMO ;, """""'"'" wih the mfixcem:nt of tbs Ar/=n<nl . Coosttuction. An referen= io m;, Agreem:nt io!be 0nguIa< d>aIl be,~ to.ind>do the pb>l ""= app6cabIe and the mascuIine.ball iodude all othe< gmdm. An ~ ~ .ooob);ga60",..in1b;"'\ll<''''_~byT=_1i;1ffiiI__'''be,joiotmd""",",~ofthe~Of~f6(<(,i'''''",,>ttooly .oodonotlmit;cq>and.oc~ """""'the~ "'_ ofthisAr/=n<nl 19. FntUoAg<ttmcnt. Thi; Agreement, 1Dg<the<_ all_ and ridea, related =urity documenIsand rod> rob and regulations as may be ptom>Ig;uM by MEMO fix the""""'" of mooey oroe.. from time '" rim:, d>aIl "'"'"""" the ontire ogreernent betw= the pa<tics badn 11>= are oot o<her ~ '" ~ writtm '" 001, between the pa<tics_ ""P"':lo the dim =- of !hi; Ar/=n<nl 11>= shall be no ~ amendments, oc ah=boos '" tbs Ar/=n<nl unkss agreed "';, riior. Ogned by all parnes. 1m Ag=no:nt shall bDland......'" the benebtofthepa<tie;, thei<respeorivehOB, """""""~ andJl<'l'C'~ 20. Time oCthe Essence. T~ is of the essence in this Agreem:nt and the Rider. WARNING - BY SIGNING TInS 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 WITIlOUT YOUR PRIOR KNOWLEDGE, AND TIlE POWER OF A COURT CAN BE USED TO COlLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAYHAVEAGAINSTTIIE CREDITOR, WHETIiER FOR RETIlRNED GOODS, FAULTY GOODS, FAILURE ON HIS PARTTO COIp,LYWIWAGREEMENr, ORANY01HER CAUSE. D=':L il d- -L12l( MEROLINTS EXPRESS MONEY ORDER COMPANY / MEMOMO' ORDERCOMPANY MEMO MO ORDER COM!' By TIde T""",(Indi,;dwl) ,111 1:'"dItLMERCHANTS EXPRESS MONEY ORDER COMPANY MEMO MONEY ORDER COMPANY PERSONAL MONEY ORDER TRUST AGREEMENT (o<bl-l\ REMITIANCE 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 addendwn to the original Trust Agreement when properly executed by both parties. TRUSTEE: IY1 C corporate/BUSin/e~s ~am5e I' I a(}f I of" ' 5 'A) -6 D r tL Street Address UJ IJ IV /Y}a, fI City, rrrcrnt1 Telephone Nwnber<)03 -~(- r/:;..o'Y Fax Nwnber State/!}iL Zip Code D ,}. J 0 I Agent Nwnber / (j 8"'17 Legal Entity: o Corporation o LLC o Partnership ~Sole Proprietorship MONEY ORDER FEES: Money Order fees shall be based upon the a.vera~ weekly volwne of j 0 Money Orders sold by Trustee. Trustee's Money Order fee shall be $ . -3 q per item at a m~m retail selling price of $ . '79 . Additionally, a money order dispenser fee of $ 9- 1 per week/ on shall apply. Weekly money order dispenser tees shall be included with Trustee's last (if applicable) regular weekly 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 $ per month. 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, d/b/a MEMO, or MEMO MONEY ORDER COMPANY, d/b/a MEMO, Pennsylvania Corporations, or MEMO MONEY ORDER COMPANY OF NEW YORK, INC., d/b/a/ MEMO, a New York Corporation ("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 proceduxes: A. Trustee shall sell only MEMO money orders in each retail establishment. Trustee shall ensuxe that the money orders are held seCUIe 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 nwnerical sequence in accordance with the number printed on each blank money order. C. The face amount of any money order sold by Trustee shall not exceed the swn of $ S LJ() , 00 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 puxchaser 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'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 vIEMO is authorized to receive and issue a receipt for blank money orders on behalf of Trustee. T"ERMINATION: I c.y-Q7 Upon termination, cancellation, or breach of the Trust Agreement by Trustee, Trustee hereby agrees to one day's written demand notice by MEMO 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 MENlO, 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 &/20 ENDING DAY fUSS REPORTING DAY WEo ACH/WIRE 77/{/x S 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 confttm 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: On and of each week, MEMO will calculate a weekly money order 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 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. Signature .) {or Signature TRUSTEE Title Date S'K 7//r; ;/;If Title Date 7 ftc/&y' / / ' ELECTRONIC )JI1Uary 3lI, :ro03 MERCHANTS EXPRESS MONEY ORDER COMPANY MEMO MONEY ORDER COMPANY PERSONAL INDEMNITY AND GUARANTY Intending to be legally bound hereby, and in order to induce MERCHANTS EXPRESS MONEY ORDER CO?vIPANY, d/b/a/ MEMO, iYlEMO MONEY ORDER CO?vIPANY, d/b/a/ iYlEMO, Pennsylvania Corporations, or iYlEMO MONEY ORDER COMPANY OF NEW YORK, INC, a New York Corporation, or any subsidiary d/b/a/ iYlEMO ("iYlEMO") to sign that certain Personal Money Order Trust Agreement, Rider and amen eots or changes thereto as may be in effect from time to time (collectivdy the "Agreement") with: c;. Corporate/Business Name .5 s StateJ.!J.J1:- Zip Code (JJ y) / Street Address City and in consideration of its so doing, the Undersigned, joindy 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 iYlEMO 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 iYlEMO 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 ME!vIO 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 (I) payment, and (2) lack of notice as requited 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 irrunediate 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 attomey, 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 ~fEr..IO shall deem necessary and desirable, and this Guaranty shall be a sufficient warrant therefor. The Undersigned acknowledge that by authorizing Jv!E}...!O 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 Conuncnwealth of Pennsylvania, disregarding any rules relating to the choice or conflict of1aws. WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAI. 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 CRED~O ETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPL THAG E , OR ANY OTHER CAUSE. ?ova 1I~ ~ ) A~/ / >/,C~~' f~06~~_~~n ~ 'r/ . antor' ignature Guarantor'~gnature l- Print Guarantor's Name Print Spouse's Name Home Address Home Address 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. Novembcr7,2002 ,....':.1 t':' " < (2; 0'\- ~ ---- 0 ~ ;-0 :::J VJ Vj c ~ ~ 0 '~ ~ ? ..,.\ ~ , " ~ ~ ~ -;:::::-- , """ ~ <:::> CJ <' ~ - : ;;> if