Store Credit Terms and ConditionsStore Credit Terms and Conditions
1. Creation of Account. In the event Applicant is granted trade credit by any one or more of the MHC Companies, Applicant shall have the right to purchase, up to the credit limit granted, goods and services from the applicable MHC Companies under a trade credit account authorized by these Terms and Conditions (the "Account"). Applicant agrees to repay the MHC Companies any amounts due under any Parts Orders, Repair Orders or invoices relating to any goods or services purchased through the Account, pursuant to these Terms and Conditions. Applicant understands that such credit includes all accrued finance charges and any additional charges provided for in these Terms and Conditions. All purchases made by Applicant under the Account shall be billed to Applicant on a monthly invoice. The MHC Companies shall determine the credit limit for the Account after determining Applicant's creditworthiness and notify Applicant of such.
2. Payment. All goods and services charged to the Account and any interest due on the Account shall be paid in full no later than the due date as indicated on the relevant invoice. The MHC Companies shall charge a one and one-half percent (1 1/2%) finance charge, per month, on all past due amounts. Any payment made by Applicant hereunder will be applied first to any additional charges described in these Terms and Conditions, second to any outstanding finance charges and third to reduce the remaining portion of the balance due on the Account.
3. Fees for Checks Returned by Financial Institutions. If any check or similar instrument provided by Applicant to the MHC Companies is refused for any reason, an additional charge equal to the fee charged by the applicable financial institution to the MHC Companies, plus a handling fee of $20, or the highest fee allowable by law, whichever is less, shall be added to the balance then owed on the Account.
4. Default. Applicant shall be in default hereunder if any of the following occurs: (a) Applicant breaches any of these Terms and Conditions; (b) Applicant enters into a compromise with its creditors, becomes insolvent, is declared bankrupt, goes into liquidation or a receiver is appointed in respect of it, or any event analogous in nature occurs under the laws of any jurisdiction; (c) Applicant ceases, or threatens to cease, carrying on any material part of its business or operations; or (d) the prospect of payment or performance hereunder is significantly impaired. In the event of such a default, the MHC Companies shall be entitled to declare any outstanding amount owing in respect of the Account immediately due and payable.
5. Limitation on Use of Account; Cancellation. The MHC Companies may at any time, without prior notice, refuse to allow Applicant the right to purchase goods and/or services under the Account. The MHC Companies may also cancel the Account at any time, for any reason, without prior notice. However, such cancellation shall not relieve Applicant from any of its obligations under these Terms and Conditions.
6. MHC's Recovery of Costs. Subject to any limitations provided by applicable law, if the MHC Companies prevail in any dispute under these Terms and Conditions, including any arbitration proceeding, the MHC Companies shall be entitled to reimbursement from Applicant for all expenses, including but not limited to, reasonable attorneys' fees incurred by the MHC Companies in connection with such action. Despite the foregoing, the recovery of such costs shall be limited by the following: (a) recovered costs shall not include costs incurred by a salaried employee of the MHC Companies and (b) the total amount of the recovered costs shall not exceed 15% of the aggregate amount due and payable under the Account.
7. Arbitration. Any controversy or claim arising out of or relating to the Account shall be decided by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, subject to the limitations and restrictions set forth in this Section 7. A demand for arbitration shall be made within a reasonable time after a controversy or claim has arisen and in no event shall be made after the date when institution of legal or equitable proceedings based upon such claim or controversy would be barred by the applicable statute of limitations. The arbitrator(s) shall have no authority to award punitive or other damages not measured by the prevailing party's actual damages. The parties acknowledge and agree that these Terms and Conditions evidence a transaction involving interstate commerce. Accordingly, the United States Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement and proceedings pursuant to the arbitration provisions hereunder. The place of arbitration shall be the American Arbitration Association's office closest to the location of the MHC Company granting credit hereunder. The parties shall be entitled to discover all documents and information reasonably necessary for a full understanding of any relevant issue raised in the arbitration. Regardless of any term or provision herein to the contrary, claims for contribution or indemnity filed by a party in any lawsuit or action filed or asserted by a third party on account of personal injury or death of any person or damage to property shall not be subject to the terms and provisions of this Section 7. The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
8. Personal Guaranty. To the extent applicable, in consideration of the MHC Companies agreeing to open the Account with Applicant, the individual(s) signing this Application on behalf of Applicant (collectively, "Guarantor") shall independently, directly, primarily, irrevocably and unconditionally guarantee (jointly and severally if more than one) to the MHC Companies the full and punctual performance and discharge of all of Applicant's obligations under these Terms and Conditions, including but not limited to, timely repayment to the MHC Companies of all amounts payable by Applicant in respect of the Account. This guaranty is continuing and absolute. Guarantor recognizes and agrees that changes and modifications may be made to these Terms and Conditions (except to this Section 8), that those changes may be made without notice to or consent by Guarantor and without thereby releasing, discharging or diminishing the MHC Companies' rights and remedies against Guarantor. No course of dealing, delay or omission on the part of the any of the MHC Companies in exercising or enforcing their rights or remedies under these Terms and Conditions against either Applicant or Guarantor shall impair or prejudice the rights and remedies of any of the MHC Companies hereunder. The liability of Guarantor hereunder shall not be impaired, modified, released or discharged by any of the following: (i) the release or discharge of Applicant in any receivership, bankruptcy or other proceeding; (ii) the impairment, limitation, modification, release or discharge of the obligations of Applicant resulting from the operation of any statute or decision of any court; (iii) the rejection of these Terms and Conditions (except for this Section 8) in any proceeding under the United States Bankruptcy Code; or (iv) any defense of Applicant under these Terms and Conditions. Guarantor has either (i) obtained independent legal advice prior to executing the Application or, if that has not occurred, (ii) irrevocably waives any rights arising out of the lack of independent legal advice.
9. Amendment. The MHC Companies may amend these Terms and Conditions at any time by giving written notice of the same to Applicant at the billing address on the records of the MHC Companies. Unless otherwise restricted by applicable law, the effective date of such notice shall be 15 days after the date such notice is deposited in the mail. Except as set forth in this section, these Terms and Conditions may only be amended in a writing signed by the parties hereto.
10. Miscellaneous. No waiver by either party of a breach or default hereunder shall be deemed a waiver by such party of a subsequent breach or default of a like or similar nature. No waiver of any of these Terms and Conditions shall be effective against any of the MHC Companies unless in writing signed by the appropriate corporate officer or authorized manager. If any of these Terms or Conditions is unenforceable, such term or condition shall be limited only to the extent necessary to make it enforceable, and all other terms and conditions will remain in full force and effect. These Terms and Conditions shall be governed by the laws of the State of Missouri, without giving effect to the choice of laws provisions thereof. The remedies expressly provided for in these Terms and Conditions will be in addition to any other remedies that the MHC Companies may have under other applicable law. Applicant may not assign these Terms and Conditions without the prior written consent of the MHC Companies. These Terms and Conditions represent the sole and exclusive agreement of the parties with respect to the matters contemplated herein and supersede all prior negotiations, agreements, representations or warranties; provided, however, that these Terms and Conditions shall in now way supersede or effect any unrelated and separate lending or security agreements of any one or all of the MHC Companies or Applicant. These Terms and Conditions shall be binding upon and inure to the benefit of the parties and their successors and assigns, to the extent successors and assigns are allowed hereby.
406941v1 Effective December 10, 2008