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HomeMy WebLinkAbout06-2314 MEMO Money Order Company of New York, Inc. PLAINTIFF v. Kelvin Quezada Individually, jointly and severally, DEFENDANT and Yolanda Ramos Individually, jointly and severally, DEFENDANT and Pre-Paid Services Corp. Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY ,2006 No. 0" - ~ slY 0 v:l hr.,," 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: Attorney Fees: Equipment: Total: $ 9,751.34 $ 427.99 $ 3,053.80 $ 1,031.89 514,265.02 ~~ /Kevin . Lutkins, Esq. Attorney for Defendants MEMO Money Order Company of New York, Inc. PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY v. Kelvin Quezada Individually, jointly and severally, DEFENDANT ,2006 and No. 0 (; - ;). 31 t{ 0 J1\ IU..... Yolanda Ramos Individually, jointly and severally, DEFENDANT and Pre-Paid Services Corp. Corporation DEFENDANT COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY I. Plaintiff is MEMO Money Order Company of New York, Inc. (hereinafter "MEMO"), a Pennsylvania Corporation wholly owned by Merchants Express Money Order Company that engages in the issuance and sale of money orders and whose address is 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043. Merchants Express Money Order Company is a Pennsylvania Corporation that is a wholly owned subsidiary of the Pennsylvania Food Merchants Association. 2. Defendant Pre-Paid Services Corp., (hereinafter "Pre-Paid"), is a corporation doing business at 983 Halsay Street, Brooklyn, New York, 11207. 3. Defendant Kelvin Quezada (hereinafter "Quezada"), is an individual residing at 1509 Jefferson Avenue, Brooklyn, NY 11237 and is the President of Defendant Pre-Paid Services Corp. 4. Defendant Yolanda Ramos (hereinafter "Ramos"), is an individual residing at 1509 Jefferson Avenue, Brooklyn, NY, 11237 and is a signatory on the Trust Agreement between Plaintiff and Defendant Pre-Paid Services, Corp. 5. Defendants Quezada and Ramos are the owners and/or operators of Defendant Pre- Paid, and entered into the Trust Agreement on behalf of said Defendant and themselves on or about September 10, 2005. A true and correct copy of the Trust Agreement under which Defendants Pre-Paid, Quezada, and Ramos are confessing judgment is attached hereto as Exhibit HA". 6. Defendants Quezada and Ramos, with the intent to induce MEMO to enter into a Trust Agreement with Defendant Pre-Paid, entered into the Personal Indemnity and Guaranty on or about September 10, 2005. A true and correct copy of the Personal Indemnity and Guaranty under which Defendants Quezada and Ramos are confessing Judgment is attached hereto as Exhibit "B". 7. The forgoing judgment against Defendants Pre-Paid, Quezada, and Ramos, 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$14,265.02 or any additional amount for a total ofthe debt demanded here. 10. The Defendants jointly and severally acted as selling agents lor Plaintiff from on or about October II, 2005 until November 27,2005. 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 November 28, 2005, through an Automated Clearing House (hereinafter "ACH") method. 13. The Plaintiff attempted to retrieve its money order issuing equipment from the Defendants to no avail. The Defendants remain in possession of the Plaintiff's money order issuing equipment and approximately 747 blank money orders that they may print for $500.00 each for a total value of$373,500.00 and use to defraud other individuals or businesses. 14. The Plaintiff, or its designated check-clearing banking center did not receive the payment of the trust funds on November 28,2005 as required by the Trust Agreement and the Remittance by Electronic Funds Transfer agreement (hereinafter "Rider"). A true and correct copy of the Rider is attached hereto as part of the Trust Agreement in Exhibit "A". 15. 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. 16. Pursuant to the Trust Agreement, the Plaintiff suffered damages by the Defendants conduct as follows: Principal: Interest: Attorney Fees: Equipment: Total: $ 9,751.34 $ 427.99 $ 3,053.80 $ 1,031.89 $14,265.02 17. Plaintiff demands judgment in the aforementioned amount as authorized by the Warrant of Attorney contained in the Trust Agreement attached hereto as Exhibit A. 18. The Warrant of Attorney contained in the Trust Agreement is less than twenty (20) years old. WHEREFORE, Plaintiff demands judgment in the amount of $14,265.02, as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee Income, interest from the date of judgment and costs. .~~ Kevin . Lutkins, Esq. Attorney for Plaintiff Attorney ID: 76859 VERIFICA nON 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 and its wholly owner subsidiary, MEMO Money Order company of New York, Inc. The undersigned individual also states that the statements made in the aforementioned complaint are true and correct to the best ofhislher 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. ) '- ~).fk David W. Bush MEMO Money Order Company of New York, Inc. PLAINTIFF v. Kelvin Quezada Individually, jointly and severally, DEFENDANT and Yolanda Ramos Individually, jointly and severally, DEFENDANT and Pre-Paid Services Corp. Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY No. ,2006 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 ofthe Pennsylvania Food Merchants Association. The undersigned also states that he has the authority to make this Affidavit on behalf of the Plaintiff, MEMO Money Order Company of New York, Inc., a wholly owned subsidiary of 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 Servo of the United States or its Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief of Congress of 1940 VZnd d. . /{()t -=,.. - SWORN to and subscribed before me this I a'" day of Apn I , 2006. ~n~ r q(JmJL No P lic COMMONWEALTH OF PENNSYLVANIA Notalial Seal Jennifer R. Hamelin, Notary Public Wonnleysburg Bore. Cumberland County My Commission Expires July 12. 2008 Member. Pennsylvania Association Of Notaries MEMO Money Order Company of New York, Inc. PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY v. Kelvin Quezada Individually, jointly and severally, DEFENDANT ,2006 and Yolanda Ramos Individually, jointly and severally, DEFENDANT No. and Pre-Paid Services Corp. Corporation DEFENDANT AFFIDA VII 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. The undersigned also states that he has the authority to make this Affidavit on behalf of the Plaintiff, MEMO Money Order Company of New York, Inc., a wholly owned subsidiary of 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: Pre-Paid Services, Corp. 983 Halsay Street Brooklyn, NY 11207 Kelvin Quezada 1509 Jefferson Ave. Brooklyn, NY 11237 Yolanda Ramos 1509 Jefferson Ave. Brooklyn, NY 1237 SWORN to and subscribed before me this 13" , day of _AjJn \ , 2006. qj:0 r t;pp",p~ N W;blic COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer R. Hamelin, Notary Public Woonleysburg 801'0. Cumberland County My Commission Expires July 12, 2008 Member. Pennsvlvanll,! A.'isodaUon Of Notaries ~J.I David W. Bush MERCHANTS EXPRESS USA, INC! MEMO MONEY ORDER COMPANY OF NY, INC. PERSONAL MONEY ORDER TRUST AGREEMENT THIS AGREEW~T is made between i\lERG-L>\NTS EXPRESS i\.{ONEY ORDER COI\llJi\NY, J/b/a l\lEi'vIO, l\.'IE.i\lO MONh"'Y ORDER corvnJANY, d/b/a i\fEi\IO, rvIERCIV\NTS E..'{PRESS US1\ INC. d/b/a Jl..lE110, Pennsylvania Corporations or MEMO MONEY ORDER COMPANY 0\; NEW YORK, INC., d/b/a MEMO, a New York c.orporntion, or any ~l.lbsiJiary J/b/a! J\U-.:l\IO Cl\llil\IO'') and the inJiviJual(s) and/or entities ilkl1tifi(xl below, hcn:aCtcr referred to <1." Trustcc(s). In consideration of the mutual promises conmined in this agtL'l-mcnt and intLmiing to lx: lq,>:illy bOW1U hereby, the parties agn:c as foHO\\':;: L Agency. [\.[FMO appoints T IUstee to act as a ~-pecial agent ofT"fEtvIO at each of Trustee's rcC1il cst:1blishmcnts approved for the sale of mom:)' orders issued by I\fE;\lO. It is expressly agreed that J\[J:!},IO and Trustee shall be: ind(.pcndent motrnctor:; and that the relationship OCt\VL'<.'l1 thr.: Partie.~ shall not constitute a partnership, joint venture or agency (other than as c:..'Prc:;sly dcscrilx:d herein). Neither i\fEMO nor Trustee shall have the authority to nuke any stat{.'ll1l'f1ts, reprCSt.'Otations or commitments of any kind, or take any action, which shall be binding on the other, without the prior col1Srnt of the other Party. Trustee aca..>pts such appointm{''f1t in accordance with the tcrtTlS and conditions spccifiL-d in this Agreement and in the attached Rider herein incorporated and made a part hcrcoE 2 Trust Relationship. Trustee shall receive and hold in trust for J'.,lEMO all blank money orders delivt:n:d to Trustee by MErvIO and all money received by Trustee from the sale of moru:y orders, including without limitation the money order fees established by i\mMO from time to time Ct:rust funds''). Trustee shaI1 hold the trust funds scpamte and apart from other funds ofT rustee. '111e failure of Trustee to hold trust funds st:parate and apart from any other funds of the Trust:ce shall, at the option of i\IElvIO, be a breach of this Agreement entitling l\1E!vfO to immt-diate possession of any account or accounts into which funds received for money order sales from consumers have been deposited and :;uch other remedies, including tcrmin:J.tion of this Agrct.ment, as are provided for herein. 3. Money Order Fees. In considemtion of the services rendered to Trustee by MEMO, Trustee shall pay MEMO a fee ('~,[oney Order Fees'') ~-pecifK.-d in the attnChed rider. Money Order Fees may be modified by MEMO at any time upon thirty (30) Jays prior notice to Trustee. 4. Materials Supplied by MEMO. For the sole purpose of sellingmon{.y orders pursuant to this Agreement, lvffiMO will supply T rustl:e W1th the following. A. An adequate ~"Upply of serially numbered blank money orders. B. An agency instilllation kit containing the supplies and training material required to implement and maintain a money order agency. C. A money onh imprinter of the guality neccs;,-ary to imprint the money order dollar value finnly into the money order so as to inhibit the alteration of any item 1hc money order dispenser shall be programmed by MEMO to indicate Trustee I.D. number on imprinted moncy orders. Such money order imprinters shall at all times continue to be thc sole property of l'vIE1IO and shall not Ix removed from the Trustee's retail establishrrlt:nt where it was originally instilled by i\1EM:o. Any other money order dispensers not owned by MEMO and l.l..'iCd by T rustcc to imprint money orden; must Ix approved by MEMO. D. Rcgubtory postings, signs, posterS, window decals and other promotional mlterials, all of which Trustee agrees to display at all times. 5. Right to an Accounting. Notwithstanding any other prov-ision of this Agreement, MEMO shall have the right, at all reasonable times, with or without notice, to access T rust:ce'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 soid and the T mst:cc's inventory of unissued money orders. A charge \vill be assessed against Tru:,1:ee to recover expenses incurred by MEMO when an audit is made due to Trustee's breach of this Agreement or if the audit discloses a breach. (See audit fee/penalty fee schedule). 6. Rules and Regulations. Trustee shall comply with the following rules and regulations: A No money order shall be issued or sold to anyone in payment of any obligation of Trustee or used in any manner for Trustee's own purposes, except as allowed by lvlEMo. B. Only ClSh shall be accepted as payment for money orders issued or sold No check or other paper transmitted or deposited by Trustee to or for MElvl:O shall constitute a remittance to MEMO until actually collected, MEMO to have the option in each C1Se as to whether to deposit any such paper for collection C. T rustce shall safeguard all unissued money orders and the money order imprinter with the highest degree of care. 1be care exercised in regard to mOfK)' orders shall be at least as that applicable to cash. Trustee shall f{.port to :MEMO the serial numlx:1: of each money order stolen or missing. and all other information relating to the event, inunediately upon discovery of the fact, but in any event not later than twenty-four (24) hour.; prior to the money orders beingpresent:cd for payment to MEMO so that payment can be stopped on such missing or stolen money orders. Such n.port shall be by tclephone and immediately confirmed in writing. Trustee shall be solely responsible for ill losses arising from, and shall indcnmify :MEMO and hold harmless regarding any and all stolen or missing money orders as well as any money order imprinters issued to Trustee. Furthermore, Trustee shall be responsible for repair or replacement of any is~ued money Onlet dispensers stolen or damaged as a result of misuse, negligence, abuse, fire or otheI.Wise. Said responsibility and liability of Trustee shall not be limited by T ruslee's compliance with the safeguarding care, and reporting obligations set forth in this parngrnph D. Trustee shall at all timt::s maintain a sound financial position and provide current financial information to :MEMO as requested by MElvlO. T rust:ee sha1l conduct opernti.ons so that the funds gmcrated 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 on:k:rs and notify :MEMO irnmcdiatcly, should such jeopardy arise. Notification to :ME.i\10 shall be made promptly by telephone and immediately confirmed in writing. "Sound flinancial Condition" shall mean that there has been no material adverse change in the business, operntions, condition (financial or otherwise) orprospect:s of the Trustee and that neither Trustee or any Guarantor has become insolvent, generally unable to pay its debts as they become due, involunmrily sw.'})ended transaction of its business, made a genernl assignment for the benefit of creditors, instituted a proceeding described in Paragraph 7B or consented to any such order for relief, declaration, finding or relief described therein, institute a proceeding described in Paragraph 7B or consented to any ~1.lCh appointment or to the taking of possession by any such official. or all or any substantial part of its property, whether or not any such proceeding is institlltcd, or has taken any action in furthemncc of any of the foregoing. A lack of sound financial condition shall also include when Trustee fails to pay. on the date which the same is due, any sum payable hereunder or fail~ to pay its creditors gcn=illy or makes representations to Mr::MO or to other creditors that it must delay any such payment under conditions which, in the sole discretion of MEMO, it appears that T ruslL-e is no longer in a sound financial condition E. Trustee shall provide MEMO by facs1mile transmittal or registered mail three (3) weeks advance notice of proposed change(s) in the ownership of either Trustee's business, the management of Trustee's business, the sale of fifty-one percent (51%) or more of Trustee's assets, or the entry into or termination of business affiliated W1th 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 1n ownership or control of Trustee. No such transaction shall be approved until any successor entity, if any, has entered into appropriate documentation, including a trust agreement. No transaction, discussed in this subparagraph, shall be effective without the prior written approval of MEMO, Any attempt by Trustee to effect such a transaction without MEMO approval shall be void, ab initio as to MEMO. If Trustee fails to give such notification, Trustee, as well as its successor, shall remain liable for the payment of all sums and the performance of all duties required by the Agreement. Any change of ownership or othcr assignment within the meaning of this paragraph shall b1nd Trustee's successor or assignee to the terms and conditions of this Agreement. F. At all orTrustce's <<:tail establishment including those newly opened or acquired, Trustee shall sell only :MEMO money orders. Trustee mw.'t: provide :MEMO with at least: 90 days notice of its intent to close its ament retail location and to reopen at another location G. Trustee shall sell :MEMO moncy orders only at Trustee's ~'f'OOiically approved places of business or future place of business as approved by r-..fEMO. Trostee shall not appoint and lor offer the services at or to any entity not a party to this agreenx:nt H. Trost:ce shall remain open during the course of normal business hours for the duration of this agret:ment Failure tv do so shall constitute a breach of this agreement I. No funds rt."Ceived by Trustee shall be subjcct to attachmL"llt, levy of cxecution, or sequestration by order of any court, CXClpt for the benefit of MEMO. J. Trustee is prohibilL-d from unauthorized use of MEMO's name, 1q,>O, tr.1dcrnark and/or service mark without l\1EMO's prior written consent 7. Tenn of AgreemenL 'Ine term of this Agreement shall run for a pericx.l of five (5) years from the date of this Agreement :lOd shall renew aut:om.l.tical1y for successive five (5) Yl"Jr periods. .After the initial five-year tL'lTI1 of this 1\grccment, Trustee may terminate this Agn..t:mcnt upon six (6) months prior writ\:{.'f1 notice to N1EMO, and NIE1IO may terminate thi." Agrecrnent upon si.'{ty (60) days priorwrittcn notice to Trustee. In the cventTrust:ce docs not provide proper tcnnination notice, Trustt.-e shall be responsible for lost fee income to lvlliMO for the duration of the contract in effect Fee income shall be caIculanxlusing Trustees most recent lo.wcek sales average. Notwithstanding the fon:going, N1EMO may tenninate this Ag:rct.ment at any tirrn; or any location co\'eml by this agreement, immediately and without notice, andlor ent:cr judgment according to the provision.. of Paragraph 11 hereof, upon the happening of any of the following {.'vents: A MEMO or its designated check-clearing banking center does not rcu.i.ve the accounting documentation or payment of trust funds (mduding money order sales proceeds and mOIK1' ordcr fees), within the time pcricx.l and on the tcrm~ ~-pccified in the Rider to this Agreement B. Trustee or any Guarmtor commits any act of insolvency, or upon the filling by Trustee or any Guarantor of any petition under any bankruptcy, reorganization, insolycncy, or momtorium bw, or any law for the relief or, or relating to debtors; or the fiI1ing of any in\'oluntary petition against T rusttt under:my bankruptcy st:l.tutc, or the appointment of a n:CciVlT or trustee tv take r(Jsses~ion of the property or assets ofTrustt:C; or the ~ubjt'ction of any Trustee's property or assets to any by, s<.i.zun; assignment or sale for or by any cro..Iitor or f:,'ovemmental agt.ncy. C The non-pcrforrrumce by Trustee of any obligations ofTrustl::c pun;uant to this l\greenx:nt The happening of any of the forc!-,'oing eymts shall be a default under this Agn.'t..'Il1ent and, without any notice from 1illiv[O, constitute a default 1.1mb any ~md all agrct.'Il1l'f1ts ofTruslL'C and/or Trustee's h'llarat1tor(s) \vith any other rclatl..-d company. In the (."\'ent ME,\10 t{.nninatcs this agrl..'t.111(.11t due to a Jefault, Trustee shall be t"Chl'onsiblc for lost fl'C income to i\IEMO for the duration ofthccontractincff{.'Ct H Tennination. Upon the l~llimtion or lL'IlTlination of this Agrcm1ent, Trustee immlxliatdy shall deliver tv MI ~MO all cash receipts from the sale of money onlers, money order fees due MI~i\f(), accolmting (store) copies of mOtll'Y onlers is~ued, the money ordt"I" imprinter and any and all materials or docummrs provided to Trustee by r",lEMO pursuant to this :\t,'Tt'cml11t, including but not limiteJ to, all blank mom.')' (lfllcr fonns. ,\1\ ()bligati(lIl, C/Jvcrunts, liabilities, ,UK! im.Jl-1TIrli.ties ()f '['mstec herClUlJer sh,~l survive the expirati()ll or tenTIina\i(lll uf this, \1,'TClTTK'Ilt. ,\ [cnninati( '11 notice provilli:J by i\n~r-...IO for ~my n.:L~on otl1cr thm the e"-"pirntlon of this Agn.:emcnt shall be cffective as of the happening ,,f ,my ouch cvent clusing tcnnination unJer par'lh'l'.lph 7 hend' or upon the mtry of confessed judgment., whichever fm;t OCClrr;;. .-\. [n its sole discretion anJ not withstanding any other prmision of the <1gfecment to the contrary, l'vfl~T\IO may imtncUiatcly tenninatc this location or any location covcn..J by this ~'n.TnK't1t in rhe event ;\'ffii\fO determines that compliance with this agreement would cause i'vlEi\fO or ~Uly of in; affiliates to violate or potentially \;obte any local, state or fcderallaw or rq,.uhtion or any COUll order. 9. Confession of Judgment. Trustee hereby irrevocably authorizes and empowers any attorney or the Prothonotary or Clerk of any eourt of record, upon or after the occurrence of any event described in paragraph 7, to appear for and to confess or enter judgment against Trustee for the face amount of all money orders sold pursuant to this Agreement, the applicable Money Order Fees, accrued interest thereon, interest expense not to exceed eighteen percent (18%), and for any other sums due MEMO under this Agreement, together with expenses and cost of suit and reasonable attorney's fees and said fees not to exceed thirty percent (30%) of said amount and sums, for collection as ptOvided herein including all legal fees incurred in any Bankruptcy of Trustee. For such purpose, this Agreement or a copy hereof verified by affidavit by Trustee or on behalf of Trustee by said attorney, Prothonotary or Clerk, shaD be sufficient warrant. The remedies ofl\1EMO as provided herein and the warrants obtained herein shall be enforced in accordance with the tenns 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 failure to exercise any such right or remedy shaD in no event be COllStnled as a waiver or release thereof. The authority and power to appedr for and confess or enter judgment against Trustee shall not be exhausted by the initial exercise thereof, and the same may be exercised, from time to time, as often as MEMO shall deem necessary and desirable, and this Agreement or a copy hereof shall be a sufficient Warrant therefore. One or more judgments may be confessed or entered in the same or different COWlties for all or part of the swns descnbed in this paragraph. In the event any judgment entered against Trustee herennder 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; 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 elTOrs are subject to cure in the late proceedings. 10. Liability. Trustee, regardless ofT rustecs freedom frum negligence or other fault, shall be absolutely liable: A To make remittance to ~mMO of the face amount of all money orders sold, thc applicable Money Order Fees, and aU other monies due ~1ErvfO under this Agmment, cc,l}l.rdless of the mysterious or non-mysterious disappearance or loss of any funds from Trustee's possession by reason of the hone;t or dishonest act of any person, act of God, or otherwise. B. To remit to MEl\fO the total amount of all swns of money that may be expended by or for MEMO in paying any money orders delivered by NffiMO to Trustee that arc SUb.~L\.jllCl1tly presented for payment, whether or not i\.fEMO is legally liable to pay the same. This subparagraph shall not apply to any money O!cb as to which Trustee shall have fully perfol1Th:u Trustee's duties under this Agreement 11. Indemnity. Trustee shall indemnify, defend and hold hann1css rvIEMO from and against any and all losses, damages, liabilities. claim.;;, actions, suits, proceedings, judgments, :l.ssl-'ssn1{."llts, fines, penalties, costs, interest, and o'"pen.se; (mcluding, but not limited to, settlement cost and reasonable legal and accounting fees) sustl:incd by MEMO resulting from or arising out of any act or orni.>sion to act, whether honest, dishonest, negligent or othcrwisc by Trustee or Trustee's employees, agents, associates or n:prcsenutive<i (whether within or without their scope of performance). 12 Security. As further coru,;idemtion of appointmmt by MEMO as its agent, and.in order to protect MEMO's property from convenaon, Trustee hereby grants to M[..:MO a continuing scrnrity interest in Trustee's bank. accOlll1t, inventory accounts re<:ei.vable, assignment of lease, and fixtures at all Trustee locations. Trustee agrees to execute all docwnents necessary to create or perfect ~1.lCh scrnrity interest, including, but not limited to, recorded Uniform Corrunercial Code-Financial Statement (UCC1(s)) fillings. Furthermore, MEMO reserves the right to require additional coUatcral as it deems necessary for ongoing approval and for the duration of the Agm..-rnmt In the event Trustee changes ownership in Trustee's business in any transaction similar to those set forth in paragraph 6(E) hereof, without prior notice and approval by t1EMO as set forth therein, T tUStec hereby grants a security interest in the proceeds of any such transaction until such time as an approved trust account is re-establishcd 13. Notices. Except as otherwise stated, all notices, correspondence, and commWlications under this Agreement shall be in writing and addressed as follows: MEMO P.O. Box 8863 C"np Hill, PA 17001.8863 14. Choice of Law. 1bis agreement shall bc construed under and in accordance with the laws of the Commonwealth ofPenru;ylvanill, disregarding any ru1es relating to the choice or conflict of laws. "lhc 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 Penru..ylvania or elsewhere. 15. Compliance with law. Trustee shall abide by (and cause its officers, principals and employees to abide by) all federal, state and local laws and regu1ations applicable to T rustccs business and services provided. They are to include but are not limited to: (a) State Licensing Laws; (b) the Bank &:crccy Act and its regulations; (c) Fedeml cash reportingrequircmcnts and regulations; (d) State Currency reporting requirements; (e) Federal. and! or State anti-money laundering laws and all rules and regulations; (Q all applicable state moncy transfer or sale of check laws and regu1ation; (g) all federal and SUte privacy laws and regul:uions; (h) the USA Patriot Act. 16. Non-Waiver" The fui1ure of MEMO to enforce any provision of this Agreement or its failure to dt.-clarc a default under this Agreement shall not constitute a waiver or any breach or of any provi.'i:ion of this Agreement and shall not prcjuJice the right and!orpower of MEMO to proceed as fully as jfit had not failed to enforce any provision of this Agreement 17. Enforcement. In the event of default under the teons of this Agn:em:nt, Trustee agrees that NIEMO shall, in addition to all rights it might have under the law, have the right of seeking specified perfonnance in the court of equity. Furthermore, Trustee agrees to consent to the jurisdiction of a court of equity regarding the enforcement of this Agreement and! or the cnfon:emt"llt of MEMO(s) rights in the event of any default by Trustees. 18. Cost of Enforcement. Trustee shall pay. on demand by :MEMO, all costs and expense; including reasonable attorney's fees incum.u by MEMO in connection with the enforcement of this Agreement 19. Constroction. All refcrmces in this Agreement in the si!l&.war shall be construed to include the plural where applicable and the masculine shall include all other genders. All covenants, agrccrncnts and obligations in this Agrel-mcnt m;sumcd by Trustee shall be, and shall be deemed to be, joint and scveml conVena1lts. H~>s 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 20. Entire Agreement. "Ibis Agreement, together with all attachments and riders, related Sea.u1ty doa.unents and ~uch rules and rcgulations as may be promu1gated by tvfEMO for the issuance .of money orders from time to time, shall constitute the entire agreement between the parties hereto. There are not other agreements or understandings, written or oral, be~een th~ parnes WIth respect to the subject matter of this Agreement There shall be no modifications, amendments, or alterations to this Agreement unless agreed to in wnting signed by all parties. This Agreement shall bind and inure to the benefit of the parties, their rc.-pective heirs, successors, rcpn::scntatives and proper assigns. :ME1vIO and Trustee underst'and that a completed telefax Signature is as valid m;theoriginal. 21. Time of the Essence. Time is of the essence in this Agreement and the Rider. WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGIIT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE, AND THE POWER OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR, WHETHER FOR REruRNED GOODS, FAULTY GOODS, FAILURE ON HIS PARTTO COMPLY WITH AGREEMENT, OR ANY OTHER CAUSE. IFTOMEMo, IFTOllWS'IEE, See attached RiJer "1RUSTEE corporute/~tr#,Namc :;;gnature f, I \" Date: MERQ-LWfS EXPIU:$S MONI ~y ORDER corvn) J\NY / MIG'JO MONEY ORDER COMPAN'{! MERCl-L\NTS EXPRE U51\ INC. MEMO~ Eleo lPANY OF NY. INC By Trustee (Indi\;dual) Title ~:pu..nbcr21~:!IXJ.l. 'l.rustcc([ndiviJu:lO ADDENDUM I TO MEMO MONEY ORDER COMPANY PERSONAL MONEY ORDER TRUST AGREEMENT FOR AGENTS WITH NEW YORK STATE LOCATIONS This Addendwu is entered into by and between MEMO Money Order Company of New York, Inc and the Trustee signed below for the purpose of satisfying MEMO's obligation to comply with regulations for money transmitters issued by the state of New York MEMO Money Order Company of New York, Inc (MEMO) having been duly authorized by the State of New York Banking Department (the "Banking Department") to lawfully engage in the business of issuing and selling money orders, hereby authorizes Trustee to act as its agent to issue and sell money orders and no other money transmission activity as an agent of i\1EMO is authorized. This license does not permit 11EMO or Trustee to act as a courier for the transmission of funds, which activity requires licensing as a money transmitter; Trustee is hereby required to give all money orders sold to the purchasers of the instruments for their own delivery to the beneficiary and is prohibited from retaining any money orders sold, according to the schedule specified in the trust agreement rider. Trustee is forbidden to authorize subagents without the written consent of MEMO Money Order Company of New York, Inc. Trustee is hereby notified that MEMO is subject to supervision and regulation by the Banking Department and must exercise control over agents to ensure compliance with applicable laws, rules and regulations with regard to money transmission. Trustee hereby acknowledges, by signature hereon, that he has been advised that the Superintendent reserves the right to inspect, with or without prior notice to MEMO or Trustee, the books and records of TlUstee acting as agent of MEMO and that the expenses incurred in making any such inspection shall be bome by MEMO. Trustee shall only sell money order instruments, which bear the name of MEMO clearly on the face of such instruments. MEMO does not condition its engagement as obligor under the payment instnunent upon the remittance of the proceeds of sale from Trustee. Trustee shall herein provide the Superintendent 'With a written and irrevocable consent to examine, have access to, and retain copies of all of its books and records, wherever maintained, relaring to the sale and issuance of MEMO money orders. Trustee is hereby advised that Trustee is under a duty to act only as authorized under the Personal Money Order Trust Agreement and Rider thereto dated and that a Trustee who exceeds its authority is subject to cancellation of its contract and may result in funher disciplina1y action against MEMO by the Superintendent. Trustee shall not advertise money orders for sale in New York without including the legend: "MEMO Money Order Company of New York, Ine. is Licensed as a Money Transmitter by the Banking Department of the State of New York". Trustee shall maintain a complete file of its advertisements (including commercial scripts of all radio and television broadcasts) for examination by the Superintendent for a period of at least two years from the date of publication. If TlUStee sells more than $3,000 in money orders in New York State to the same individual or entiryin anyone day, Trustee shall verify and record the following infonnation with respect ro any such sales: 1. the purchaser's name and address; and 2. the form of idenrification used to idenrify the purchaser; and 3. the purchaser's method of payment; and 4. if payment is made by check, the name and ABA nwuber of the banking institution upon which the check is drawn. TRUSTEE =:itf:j!;;vtltj,;X' (~I' Tille r dA , J '-<I- Date Sept-' ,;Jq dCC"t:::) I MEMO MONEY ORDER WMPANY OF NEW YORK, INC Signature-~~4 . Title .'vl .J /l. Date July 12, 2002 MERCHANTS EXPRESS MONEY ORDER COMPANY MEMO MONEY ORDER COMPANY MERCHANTS EXPRESS USA, INC. MEMO MONEY ORDER COMPANY OF NY, INC. PERSONAL MONEY ORDER TRUST AGREEMENT REMITIANCE BY ELECTRONIC FUNDS TRANSFER This Rider is an integral part of the Personal l\foney Order Trust Agreement being executed by the parries simultaneously herewith. Any changes to this Rider shall serve as an authorized addendum to the original Trust .\greement when properly executed by both parries. TRUSTEE: 1'\ ,-, Corporate/Business Name --t' II' e.. r) ~I '..:..1: "I!../ u, c... t J Street Address 9J''J H IJ IJ i.1 j;fytr hity !j.,~.:: t ly/Y Telephone Number l)/!i'- "If 1- ~''701 Fax Number , ( .~) vlO ' I StatehY Zip Code II 2 C ? Agent Number Legal Entity: Q Corporation 00 LLC Q Partnership 0, Sole Proprietorship MONEY ORDER FEES: Money Order fees shall be based ,upg.n the average weekly volume of .",13 Money Orde;-s sold by Trustee. Trustee's Money Order fee shall be $ ~ '-(-,) per item at a maximum retail selling price of $ /~ d-u . Additionally, a money order dispenser fee of $ ~""", er wee month shall apply plus applicable taxes. Weekly money order dispenser fees shall be included with Trustee's last (if applicable regular weekly ACH draft. Monthly money order dispenser fees shall be included on the next regular weekly ACH draft following the last calendar day of a particular month. The minimwn monthly revenue generated by Trustee's account must equal $ ;'VIA 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 ME~IO, or MEMO MONEY ORDER COMPANY, d/b/a MEMO, MERCHANTS EXPRESS USA, INe. d/b/a MEMO, Pennsylvania Corporations, or MEMO MONEY ORDER COMPANY OF NEW YORK, INe., d/b/a/ MEMO, a New York Corporation (""lEMO") at any time upon thirty (30) days notice to Trustee or when MEMO's ten week sales analysis indicates per item weekly volwne 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 t-fEMO 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. C. The face amount of any money order sold by Trustee shall not exceed the sum of $ S1J (J ..;-v 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 l\IE.i\IO and no other imprinter; collected fwm 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 l\lE~IO's Help Line at 1-800-864-5246. F. l\1E110 may deliver blank money orders to Trustee, or to any agent, employee or representative of Trustee, by whatever means MEMO deems appropriate, and f..IEivfO is authorized to receive and issue a receipt for blank money orders on behalf ofTmstcc. TERMINATION: Cpon termination, cancellation, or breach of the Trust Agreement by Trustee, Tmstee hereby agrees to one day's written demand notice by ~IE;..10 to forthwith return by next day US mail or common mail carrier all Trust instruments in its possession, including but not limited to money oruer imprinting machines, all blank money order forms, the face am01.mt and applicahlc money order fees due ;\.EEi\IO to date, ,md all other outstanding balances due l\.ffiMO, along with any other materials supplied to Tmstee by :\fEJ\lO 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 0.fEl,10 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 MEi\fO shall be borne exclusively by the Trustee. TRUST FUNDS REMITTANCE: ~\ny 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 Tlh ri JI,~ /., "",. f) 4...t &~/WIRE h-, ..t~ n "', tP -t<; fv1 0 " /J""'1 'Tlh;y.J~ ENDING DAY WtJJ,"(!.) &Aj S;'t}vJ~ REPORTING DAY Trustee will be provided all pertinent reporting information on the weekly money order Sales Swnmary Report. As per predetermined schedules, MEMO will initiate an electronic transfer of funds due :t\1E},tfO, including the face value of money orders sold, plu.s applicable fees due MEMO, from Trustee's bank account to ?vffiMO'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 Ptf on the designated remittance day. All funds due J\.ffiMO 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 confum in writing. This arrangement shall not be revoked unless all funds due ~MO 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 1fE1tO. 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 ME~fO office and ;\ffii\tO 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 :tvffiMO 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 h 'ON d ~ and 'TH...Aq' jJ '77 of each week, MEMO will calculate a weekly money order sales total from daily d ta obtamed from Trustee Via e1ectroruc polling transnusston of the money order dispenser. YffiMO WIll forward the weekly Money Order Sales Summary Report to Trustee as stated above. Trustee shall reconcile the weekly }"Ioney Order Sales Summary Report with its records and inform tffiMO of any differences. Trustee must retain the accounting (store) copies at its location for a period of three montlls 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. L! ~Iwr ( In I MERCHANTS EXPRESS MONEY ORDER CO. MEMO MONEY ORDER COMPANY MERGL\NTS EXPRESS USA, INC MERCHANTS EXPRESS MONEYpRDE~CO~lPANY OF NY c.:--;'7// " SIgnature c/~..>~ 7 Title f~tJ /..:... . TRUSTEE Signature Title Date Date .~~cos- ELECTRONIC: August 26, 2004 MERrnANTS EXPRESS MONEY ORDER COMPANY. MEMO MONEY ORDER COMPANY MERrnANTS EXPRESS USA, INC. - MEMO MONEY ORDER COMPANY OF NY, INC. PERSONAL INDEMNITY AND GUARANTY Intending to be legally bound hereby, and in order to induce MERCHANTS EXPRESS MONEY ORDER COMPANY, d/b/ a! MEMO, MEMO MONEY ORDER COMPANY, d/b/a! MEMO MERCHANTS EXPRESS USA, INC. d/b/a MEMO, Pennsylvania Corporations, or MEMO MONEY ORDER COMPANY OF NEW YORK, INC, a New York Corporation, or any subsidiary d/b/a! MEMO ("MEMO") to sign that certain Personal Money Order Trust Agreement, Rider and amendments or changes thereto as may be in effect from time to time (collectively the " Agreement") with: Corporate/Business Name PY'CI:fl'}/ ~V ser~I,'i.:I2./) C:;,//J. Street Address q,f3 (-In).J eL)tf.reJ- City: 1)v1J;/L.;I-Y State fy '/ Zip Code J /;)10 and in consideration of its so doing, the Undersigned, jointly and severally, absolutely and tulconditionally, 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 Oerk 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 Ovil 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, Oerk 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 he a sufficient warrant therefor. The Undersigned acknowledge that by authorizing MEMO to confess judgment hereunder, the Undersigned have waived the right to notice in a prior judicial proceeding to determine their rights and liabilities. This Guaranty is given in connection with and evidences the obligation of the Undersigned to make payment in connection with a commercial transaction. This Guaranty is irrevocable and shall be binding and operative until such time as MEMO shall have been paid all sums owed to it under the Agreement and that may arise pursuant to this Guaranty. This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, disregarding any rules relating to the choice or conflict of laws. WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOURRIGIIT TO NOTICE AND COURT TRIAL. IF YOU DO Nar PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOur YOUR PRIOR KNOWLEDGE, AND THE OWER OF A COURT CAN BE USED TO COLLECf FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE II! ST THE CREDIT .'jWHE THER FOR RETURNED GOODS, FAULTY GOOf(. ,FAILURE.. ON HIS PART TO CO LY WITH AGREE / ,ORANYarHERCAUSE'd ... / If - -'C~d.v Q.)OrJ..J / 'I~ G tor's Signature 0 !()-( oid~ 'O/a./Ja; f..-t>>nOS Print Spouse's Name /5f)? Jelld(j0? h ~e Address RlCi ttfl/J //tj/. / J;J, i37- ty /.;; - ~ State Zip Code V//cJ /?'<S - Date / I' ,S()Q Home Address .-.-"... \9 ( \- (e( :-=:r\(", '-.oj J'v-'O..- 'c"Y'\ ~ . . . .~ r..\...) \ \.., r \ City / '-' '--"if . ~ ~ )\'f :lmlN \( Date \. }S ~. , Jr aC ( \ \ --:;.::::('L.- \:j' ) I ., Z. ip' Cod~ :;;j (( ) c:::- "If not married, please indicare by affixing "N/ A" on line for second Guarantor's signature. NovcmbcT7,2002 ~ ~ t. t , .J:::. " 't' <.>:.'" =6 - f;- lA f"::, \ ~ ~ ( V\ - c: "., ......J r, ---.j ~ ...." D ( 9- '-<. V 0'\: ? -:\:. --<.