1. This Rhino Merchant loan and post-Installation charge (“Post Charge”) Terms and Conditions (“Agreement”) forms a legal agreement between Rhino Eco, Inc. (“Rhino”) and Rhino’s Services recipient and any of its representatives, agents and subcontractors (“you” and “your”) to receive certain lending services offered by Rhino and its affiliates. This Agreement states the terms and conditions that apply to your use of the Services as defined below. This Agreement is effective upon your first access or use of the Services and continues until you or Rhino terminates it and all your obligations are met.
2. Rhino’s General Terms and Conditions and Merchant Services Terms and Conditions will apply to you and to this Agreement. Any dispute between you and Rhino is subject to a class action waiver and must be resolved by individual binding arbitration. Please read Rhino’s General Terms and Conditions and its Dispute Resolution provision as it affects your rights under this Agreement.
3. Unless otherwise stated, any additional and specific agreements between you and Rhino with relation to the Services are part of the Agreement. Their instructions are in addition to the contents of this Agreement and do not detract from them. In the event of a discrepancy between this Agreement and any individual agreement between you and Rhino, the terms of the individual agreement shall prevail.
You will be given the option to use the Services via a designated portal (“Merchant Platform”). You may offer prospective clients (“Host Customers”) of residential photovoltaic system (“Solar Facility”) installation the opportunity to pay for their Solar Facility only once the system is installed and interconnected. Rhino, subject to its sole discretion, may loan you the necessary payment for the installation of the Solar Facility (the “Loan”), and collect the loan repayment once a Solar Facility is interconnected and the Host Customer pays you for the installation. All, according to the schedule and milestones of this Agreement (all the “Services”).
1. The Work. You shall perform all work necessary to design, engineer, procure, install, construct, test, commission, and start-up a complete photovoltaic system at the property owned by the Host Customer where the Solar Facility is to be installed in accordance with practices, methods, specifications, and standards of safety and performance which are considered good, safe and prudent in connection with an installation of solar facilities and equipment and the technical specifications of the Supplement, and any applicable law (“Work”).
2. Control of the Work. You shall be solely responsible for all means, methods, techniques, sequences, procedures, licenses requirements and safety and security programs and precautions in connection with the performance of the Work. You shall initiate, maintain and supervise all safety precautions necessary to comply with all applicable provisions of federal, state and local safety laws. You shall provide and pay for all labor, materials, equipment, tools, supervision, testing, inspection and other services as necessary to complete the performance of the Work. Including: issued permits, consents, decisions, licenses, approvals, certificates, confirmations, or exemptions from any governmental authority that are necessary for the performance of the Work.
3. Standard of Performance. You shall perform the Work in a manner that is (a) safe, prudent and reasonable; (b) in accordance with good professional standards applicable to the residential solar electric systems industry at the time of the performance; (c) consistent with prudent practices, to the extent applicable; (d) consistent with the requirements applicable to on-site generation, if any, of the applicable local electric distribution utility; (e) in compliance with all vendor equipment warranty requirements, maintenance instructions and specifications; (f) in compliance with all laws, and (g) reasonably calculated to maximize the availability, output and reliability of the Solar Facility and to minimize operating expenses of the Solar Facility.
You shall employ licensed personnel in the performance of the Work which shall be performed with the degree of care, skill and responsibility customary among such licensed personnel. You shall not permit employment of persons not skilled or qualified for the tasks assigned to them.
4. Time is of the Essence. Time is of the essence for achieving final completion of the Work.
5. Laws and Regulations. You shall at all times comply with all applicable laws which affect your performance of the Work. If, subsequent to the execution of this Agreement, a change occurs to any law which materially affects your performance of the Work, then you shall notify Rhino of such change.
6. Rebate Reservation and Processing. You shall reserve all rebate(s) applicable for the Solar Facility, including any federal, state or local incentive available which shall be reserved to you. You shall be solely responsible for preparing and submitting all rebate documentation required to reserve the rebates. You shall be liable for failure to receive the applicable rebate amount. In a case that the applicable rebate amount will not be available to Rhino or a Host Customer as applicable, with respect to a particular Solar Facility and as a result of your actions or lack of them, you agree that Rhino may deduct or withhold that amount any future disbursement under any Project and Loan which you and Rhino are a part of. Furthermore, you authorize Rhino to debit your Bank Account without separate notice and only to collect amounts you owe or invoice you for these damages or loss incurred by Rhino as a result (“Rebate Damages”).
1. Only businesses located in the United States that meet Rhino’s Post Charge Prequalification Requirements are eligible to use the Services, and shall provide Rhino with all the necessary documents required under the Prequalification Requirements. Rhino may reasonably require additional documents or information for this purpose. You may use the Services only within, and in order to serve your clients, in the following US States: New York; New Jersey; Connecticut; Pennsylvania.
2. You are required to sign into Rhino’s Merchant Platform and establish a payment account within it (“Payment Account”). The Payment Account shall be used for receiving payment from Host Customers and for the repayment of all future Loans.
3. Providing you with a Loan is subject to the following preconditions:
3.1 You and the Host Customer signed an agreement for residential Solar Facility installation (the “Project”), in which the chosen payment option was post-install payment for the entire Project and such agreement shall include language provided by Rhino stating the payment terms (“Solar Agreement”).
3.2 The Host customer has signed a power purchase agreement with such contingency that it will only enter into effect in case the Host Customer, for whatever reason, has failed to pay for the Project (“PPA”, see sample PPA).
3.3 You initiated a request for, and Rhino approved, a supplemental agreement which includes the specific terms and conditions of a specific Project including, but not limited to, the Loan amount and the Project schedule (“Supplement”).
3.4 No event has occurred or would reasonably occur that would result in a default or breach of this Agreement or the Project’s Solar Agreement by you or any counterparty.
3.5 Fees and Costs. all fees and costs due under this Agreement and all Supplements were paid by you, unless otherwise approved by Rhino.
4. Loan Approval. Loan approval is subject to Rhino’s sole discretion, and Rhino is under no obligation to approve a requested Loan.
1. Loan Principal. Total Project cost approved by Rhino in the Supplement (“Principal”).
2. Loan Interest. The applicable Post Charge Fee as defined in your Rhino Merchant Agreement. Such fee will be calculated as a percentage of the full Principal amount (Fee*Principal), and paid according to the Repayment provision of this Agreement or any lesser rate that Rhino may deem appropriate (“Interest”). For the avoidance of doubt, Interest will not be calculated on an annual basis but on a Project basis.
No Interest rate shall be effective that would result in a rate greater than the highest rate permitted by law. Paid Interest that is later determined to be in excess of the limits imposed by applicable usury law shall be reduced or returned upon request so that such payments will not be deemed usurious.
3. Loan Timeline. The relevant period of the Loan begins when a Supplement is approved by Rhino (“Time of Sale”), and ends when you achieve Final Completion (“Install Period”).
4. Loan Duration. You shall use all commercially reasonable efforts to achieve a Project’s Final Completion no later than one hundred and twenty (120) days following the Time of Sale (“Target Install Completion Date”).
5. Late Fee. If a Project and its associated Loan have exceeded the Target Install Completion Date, for any reason whatsoever, you agree to pay a fee of ten basis points (0.1%) of the Loan amount for each day of delay (“Late Fee”). The Late Fee may be deducted or withheld from any future disbursement under any Project and Loan of which you and Rhino are a part of. Furthermore, You authorize Rhino to debit your Bank Account without separate notice and only to collect these owed Late Fees. You may, at your sole discretion, prepay the Loan and avoid such Late Fee, subject to the terms of this Agreement.
6. Expedited Completion: If you achieve Project’s Final Completion within less than ninety (90) days following the Time of Sale, you shall receive a discount of ten basis points (0.1%) from the required Interest amount for each day of expedited completion. Such discount shall be caped to twenty (20) days (two hundred (200) basis points in total) even if Final Completion was achieved prior.
7. Disbursement Milestones. The Loan will be disbursed to you by Rhino when each of the following milestones is reached and the applicable Disbursement Request has been filed (“Project Milestones”):
7.1 Time of Sale (“Milestone 1”);
7.2 Upon percuring all relevant materials and receiving plans approval from the relevant authority for the Project (“Milestone 2”);
7.3 Upon completion of all Work necessary to start up the Solar Facility and retrieval of test results confirming that the equipment associated with the Work performs to the technical specifications of the Supplement and to the manufacturer’s specifications and standards (“Substantial Completion”, “Milestone 3”);
7.4 After achieving Substantial Completion and receiving evidence of communication from the local utility granting permission to interconnect the Solar Facility and operate it in parallel with the local grid (“Final Completion”, “Milestone 4”).
Disbursement of dollar amounts would be according to the Supplement’s terms. Rhino will disburse the applicable milestone payment within 10 business days of the Disbursement Request.
8. Disbursement Request. as a precondition for each disbursement by Rhino, you are required to submit a disbursement request at the designated location in the Merchant Platform, together with the following documentation all satisfactory to Rhino in its reasonable discretion (“Disbursement Request”):
8.1 For Milestone 1: (a) a copy of that Project’s Solar Agreement; (b) technical specifications that include system size and capacity (AC & DC Kilowatts) and technical description of all generation equipment; (c) single-line diagram of module layout for the Solar Facility.
8.2 For Milestone 2: (a) an itemized list of materials purchased for which payment is requested and associated invoice due for such procurement; and (b) a copy of the complete plan approval by the relevant authority for the Project.
8.3 For Milestone 3: (a) Documentation and photographs evidencing the completion of the necessary Work; and (b) Solar Facility test results confirming that the equipment associated with the Project performs to the technical specifications set forth in the Supplement and to the manufacturer’s specifications and standards.
8.4 For Milestone 4: (a) complete set of “as-built” Drawings of the Solar Facility; (b) copy of all inspections certificates of the Solar Facility by the utility and applicable governmental authorities; and (c) evidence of communication from the utility granting permission to interconnect the Solar Facility and operate it in parallel with the local grid. In the occurrence of transitions to a PPA , in addition to the deliverables above, the following: (d) a copy of the all Solar Facility’s equipment warranties; (f) copies of completed and submitted rebate documentation, including the applicable confirmation letters.
9. Rhino-Initiated Advances. Rhino may initiate a disbursement of the Loan for any reason at any time, in order to pay or disburse any proceeds, amounts, costs, charges or expenses to protect Rhino’s’s interest in Project or to perform any of your obligations under this Agreement.
1. Maturity Date. The Loan will mature upon Final Completion (“Maturity Date”).
2. Repayment. You shall repay the loan to Rhino under the following conditions:
2.1 Payment on Maturity Date. You shall pay Rhino at the earliest of (a) within 15 days of the Maturity Date (b) upon the Host Customer's payment for the Project, both the outstanding Principal balance, the Interest and any Late Fee if applicable.
2.2 Optional Prepayment. At all times throughout the Install Period you may prepay any of your obligations to Rhino, including the outstanding Principal and Interest.
2.3 Mandatory Prepayments. Upon receipt of the proceeds of a Project sale or if the Collateral is dispositioned or damaged in whole or in part, its proceeds shall be paid by you to Rhino as a mandatory prepayment of the Loan’s Principal and Interest until the Loan is repaid in full.
2.4 Payment Account. All proceeds, payments or pre-payments from the Solar Agreement or the Loan, shall be paid by the Host Customer through Rhino’s Merchant Platform, and will be deposited into your Payment Account. Rhino will hold exclusive control over your Payment Account, and will collect all payments directed and deposited into the Payment Account for the purpose of repayment of the Loans.
2.5 Application of Payments and Proceeds. All payments on the Loan or amounts recovered in connection with the Loan will be applied in the following order: (a) reimbursement of any expenses (including Late Fees and Rebate Damages); (b) accrued but unpaid Interest; and (c) outstanding Principal balance.
3. Ownership. At all time throughout the Install Period, the Project and all its associated materials will remain under your full ownership. Once the Host Customer pays for the Project and the Loan is repaid in full, you shall transfer the ownership of the Solar Facility to the Host Customer.
4. Collateral Release: once the loan was repaid in full, Rhino will provide you with a written statement that it has no further claim as to the Collateral.
5. Transition to PPA. If the Host Customer fails to pay for the Project within 45 days following the Maturity Date, then you may elect to either prepay the outstanding Loan or pay the Loan by transferring ownership of the Solar Facility to Rhino instead of to the Host Customer. In such case, you shall grant Rhino full ownership of the Solar Facility and its legal title including all solar photovoltaic modules, inverters and all other materials and equipment, which shall pass to Rhino free and clear of any and all Liens. The PPA shall enter into force Immediately after such transfer of ownership. Rhino, at its sole discretion, may choose to delay such Ownership Transfer to allow you to collect the payments due for the Project from the Host Customer.
1. Grant of Security Interest. As a security for the payment and performance of your obligations under this Agreement, you hereby grant to Rhino a continuing security interest in your following property, whether now or hereafter owned, existing, acquired or arising and wherever now or hereafter located: (a) all deposit accounts managed by Rhino, including the Payment Account, and all money held in such accounts; (b) the Project and its associated materials, including solar modules, inverters, wiring, switches and racking, whether installed or not, as a property of yours and proceeds of the Project, including proceeds of all insurance policies insuring the Project (both (a) and (b), the “Collateral”). Rhino will have all rights and remedies available to it under the UCC with respect to the Collateral.
2. Collateral Release. Once the Loan was repaid in full, Rhino will provide you with a written statement that it has no further claim as to the Collateral.
1. Events of Default. An “Event of Default” shall occur in any of the following occurs: (a) you fail to perform any of your obligations under this Agreement when it is due; any representation or warranty made by you in this Agreement or any other agreement with Rhino is untrue or misleading; (b) you become insolvent or file a petition for insolvency, reorganization, debt arrangement, dissolution, liquidation or similar proceeding under the laws of any jurisdiction; (c) any permit, license or similar approval of any Governmental Authority required in connection with any Project is lost and not reinstated within 30 days; (d) you cease to comply with Rhino’s Post Charge Prequalification Requirements.
2. General Rights and Remedies. During any Event of Default, Rhino may in its sole discretion exercise the following rights and remedies: (a) declare the obligations to be immediately due and payable and accelerate payment of the Loan; (b) apply any money Rhino should provide to you with, for any payments to a third party for Work required to achieve Final Completion of any Project; (c) exercise and enforce its rights and remedies under this Agreement or available to Rhino by law.
3. Take Over Construction. If you fail in any material respect to comply with the provisions of this Agreement or if construction of the Solar Facility ceases before completion regardless of the reason, Rhino or its chosen third party may enter into possession of the construction site and perform any and all Work and labor necessary to complete a Project, substantially in accordance with the applicable Solar Contract; all in addition to the rights and remedies of this Agreement. Rhino may abandon or recommence Work on a Project or recommence it at any time, but nothing in this Section shall impose any obligation on Rhino to complete such Project. For purposes of this Section only, you irrevocably appoint Rhino as your attorney-in-fact, with full power of substitution, to complete any Project, at Rhino’s option, either in your name, in its own name, or any other third party Rhino chooses. In any event, all sums expended by Rhino in completing the construction of any Project and for any other necessary purpose to cure any of your defaults and protect the Collateral under Rhino’s sole discretion, will be considered to have been disbursed to you and will be secured by Loan and Collateral.
4. No Waiver. Any failure by Rhino to insist upon strict performance of any of the provisions of this Agreement shall not be deemed a waiver of any of the terms or provisions, and Rhino shall have the right thereafter to insist upon strict performance by you.
1. Representations and Warranties. You make the following representations and warranties to Rhino, which shall continue in full force and effect until the full and final payment and discharge of all your obligations to Rhino:
2. Non-Liability of Rhino. The making of any disbursement of the Loan by Rhino shall not constitute or be interpreted as either: (a) an approval or acceptance of the Work done; or (b) a representation, warranty or indemnity by Rhino to any party against any deficiency or defect in the Solar Facility or damages caused by the Work or against any breach of any contract. Neither you nor any Host Customer, contractor, subcontractor, client or any other person shall rely, or have any right to rely, upon Rhino’s determination of the appropriateness of any advance.
1. Solar Agreement Requirements. For each Solar Agreement: (a) the language and any future changes to it shall be approved by Rhino (b) shall contain the language of payment terms set forth on Exhibit A; (c) shall be with a Host Customer that meets all of Rhino’s credit and underwriting requirements that have been approved by Rhino on the Merchant Platform; (d) shall require the installation of new solar equipment from Rhino’s approved list of materials that has not been previously placed into service. You shall not modify, amend, supplement, terminate or cancel in any manner a Solar Agreement without Rhino’s prior written consent.
2. Inspection Rights. At any reasonable time, you shall permit Rhino or its representatives to (a) examine and make copies of your books and records in relation to this Agreement; (b) visit any Project; (c) conduct unannounced and non-disruptive field examinations, Solar Facility construction visit and collateral inspections; and (d) discuss your affairs, finances and accounts with any of your officers.
3. Liens: You shall promptly pay or discharge (and properly record any discharge), any mortgage, pledge, assessment, security interest, lease, lien, adverse claim, levy, right of retention, charge, or other encumbrance of any kind on the Solar Facility and its materials (“Lien”) or any other charges which might be or become a Lien. You agrees not to place a Lien on any Solar Facility or Host Customer Site. Any Lien placed on a Solar Facility or Host Customer Site shall be deemed an improper Lien. Upon failure discharge improper Lien, Rhino may pay or discharge such Lien and charge you for such amounts.
4. Further Responsibilities. In addition to the specific obligations arising from this Agreement, you shall be subject to general responsibilities such as: construction responsibilities; use of proceeds; proper book and record keeping; maintenance of business operations; compliance with insurance requirements; payment of taxes; and any and all compliance with applicable laws and regulations required in order to complete the Project and be a party to this Agreement.
1. Assignment. This Agreement may be freely transferred and assigned by Rhino, its successors, endorsees and assigns. You may not transfer your rights and obligations with respect to this Agreement, the Loan, or their obligations.
2. Joint and Several Liability. If you consist of more than one person or entity, your obligations and liabilities shall be joint and several.
3. Limitation of Liability. To the fullest extent permitted by law, the maximum aggregate liability of either you or Rhino to the other party under this Agreement shall not exceed the sum of the Loan amount for each executed Supplement. This limitation on liability shall not apply to limit the indemnification obligations of this Agreement and shall also not apply to Late Fees, Rebate Damages and breach of any confidentiality obligations.
4. Indemnification. You shall indemnify Rhino, and any of its affiliates, successors, present and future officers, directors, employees, attorneys and agents (each an “Indemnitee”) from and against any of the following (collectively, “Indemnified Liabilities”): (a) any and all taxes and charges made by governmental authority by reason of the execution and delivery of the Agreement or the Loan; (b) any loss or damage incurred if any of the if any representation or warranty contained in this Agreement proves to be incorrect; (c) any and all other liabilities, losses, damages, penalties, judgments, suits, claims, costs and expenses in any manner related to the execution of the Agreement and the Loan unless caused by the gross negligence or willful misconduct of an Indemnitee. If deemed necessary by the Indemnitee, you, or a counsel appointed by you, shall defend the Indemnitee from any such proceedings. Your obligations under this section shall survive the termination of this Agreement.
5. Severability. If any term, covenant or condition of this Agreement is held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such provision.
6. Force Majeure. You or Rhino shall be excused from performance and shall not be considered to be in default with respect to any obligation under this Agreement, if and to the extent that its failure or delay of performance is due to acts of god, extreme weather conditions, fires, floods, earthquakes, sabotage or destruction by a third party of a Solar Facility, war, riot, acts of a public enemy or other civil disturbance or strike, all beyond the affected party’s reasonable control (a “Force Majeure Event”), provided that :
6.1 Such party gives the other party written notice describing the particulars of the Force Majeure Event as soon as is reasonably possible;
6.2 The suspension of performance is of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event;
6.3 The party uses commercially reasonable efforts to overcome or mitigate the effects of the Force Majeure Event; and
6.4 When the party is able to resume performance of its obligations under this Agreement, such party shall promptly resume performance under this Agreement.
7. Agreement and Supplement. You and Rhino intend to enter into separate Supplements setting forth the particular terms and conditions for each Project constructed by you. As such, each Supplement shall incorporate all terms and conditions of this Agreement. Each Supplement shall constitute a separate and distinct contractual relationship between you and Rhino.
8. Further Assurances. You and Rhino Agree to provide additional instruments and documents and to take such other actions as may be necessary which are not inconsistent with the provisions of this Agreement in order to give full effect to this Agreement and to carry out its intent. In addition, you and Rhino may enter into a mutually agreed upon separate agreement for the ongoing operation and maintenance of the Solar Facilities.