1
PACE LENDER CONTRACT
THIS PACE LENDER CONTRACT (the “Contract”) is made as of the ____ day of
_______________, 20__, by and between %UD]RV County, Texas (“%UD]RV County”) and
________________________ (“Lender”).
RECITALS
A. %UD]RV County has established a program to facilitate the financing by property
owners of water and energy conserving improvements for commercial, industrial, agricultural,
and large multifamily residential (5 or more dwelling units) real property (the “PACE
Program”) pursuant to Resolution No. ____________________________, dated
__________________, 2015, adopted by the %UD]RV County Commissioners Court in accordance
with the provisions of the Property Assessed Clean Energy Act (the “PACE Act”), Texas Local
Government Code, Chapter 399. The %UD]RV County Commissioners Court has designated the
entire territory within %UD]RV County’s jurisdiction as a region within which the authorized
County official named below and the owners of such real property may enter into written
contracts to impose assessments on the property to repay the financing of qualified
improvements.
B. Property Owner is the legal and record owner of the tract of qualified commercial,
industrial, agricultural, or large multifamily residential real property within %UD]RV County’s
jurisdiction located at ____________________________________,______________________,
Texas, and more fully described in Exhibit A attached hereto and made a part hereof (the
Property”).
C. Pursuant to Application number __________________, Property Owner has
applied to %UD]RV County to participate in the PACE Program by installing or modifying on the
Property certain permanent improvements intended to decrease water or energy consumption or
demand, which are or will be fixed to the Property as “qualified improvements”, as defined in
Section 399.002 of the PACE Act. The installation or modification of such qualified
improvements on the Property will be a “qualified project” as defined in Section 399.002 of the
PACE Act (the “Project”).
D. Property Owner and %UD]RV County have signed a PACE Owner Contract, a copy
of which is attached hereto as Exhibit B and made a part hereof (the “Owner Contract”), in
which Property Owner has agreed to the imposition by Brazos County of an assessment on the
Property (the “Assessment”) secured by an assessment lien to repay the Property Owner’s
financing for the Project, as permitted by the PACE Act and set forth in the Notice Of
Contractual Assessment Lien Pursuant to Property Assessed Clean Energy Act, a copy of which
is attached hereto as Exhibit C and made a part hereof. Unless otherwise expressly provided in
this Contract, all terms used herein will have the same meanings ascribed to them in the Owner
Contract.
Print Form
2
E. Financing for the Project (the “Financing”) will be provided to Property Owner
by Lender in accordance with financing documents described in, or copies of which are included
as, Exhibit D attached hereto and made a part hereof (the “Financing Documents”). Such
Financing includes only those costs and fees for which an assessment may be imposed under the
PACE Act. This Contract is entered into between Brazos County and Lender as required by
Section 399.006 of the PACE Act to provide for repayment of the Financing secured by the
Assessment.
F. As required by Section 399.010 of the PACE Act, Property Owner notified the
holder(s) of any mortgage liens on the Property at least thirty (30) days prior to the date of this
Contract of Property Owner’s intention to participate in the PACE Program. The written consent
of each mortgage holder to the Assessment was obtained prior to the date of this Contract, as
shown by the copy attached hereto as Exhibit E and made a part hereof.
AGREEMENT
NOW, THEREFORE, the parties do hereby agree as follows:
1. Maintenance and Enforcement of Assessment. Lender agrees to provide the
Financing for the Project in the total amount of $ ______________, according to the terms set
out in the Financing Documents attached hereto as Exhibit D. In consideration for the Financing
provided or to be provided by Lender for the Project, and subject to the terms and conditions of
this Contract, Brazos County agrees to maintain and continue the Assessment for the benefit of
Lender until the Financing, all contractual interest according to the Financing Documents, and
any statutory penalties, interest, attorney’s fees, or costs accrued in the event of default are paid
in full and to release the Assessment upon notice from Lender of such payment. Brazos County
agrees to enforce the assessment lien against the Property for the benefit of Lender in the event
of a default by Property Owner. Brazos County will have no obligation to repurchase the
Assessment should there be a default or an event of default in the payment thereof or should
there be any other loss or expense suffered by Lender or under any other circumstances.
2. Installments. The Assessment, including the amount financed and contractual
interest, is due and payable in installments as set forth in the Financing Documents. As required
by Section 399.009(a) (8) of the PACE Act, the period during which such installments are
payable does not exceed the useful life of the Project. When the Assessment has been paid in
full, Brazos County’s rights under the Owner Contract will cease and terminate, and upon notice
from Lender Brazos County will execute and record a release of the Assessment and the Owner
Contract.
3. Assignment of Right to Receive Installments. Lender will have the right to
assign or transfer the right to receive the installments of the Assessment, provided all of the
following conditions are met:
3
(a) The assignment or transfer is made to a qualified lender, which may be one of the
following:
Any federally insured depository institution such as a bank, savings bank, savings and loan
association and federal or state credit union;
Any insurance company authorized to conduct business in one or more states;
Any registered investment company, registered business development company, or a Small
Business Administration small business investment company;
Any publicly traded entity; or
Any private entity that:
o Has a minimum net worth of $5 million;
o Has at least three years’ experience in business or industrial lending or commercial real
estate lending (including multifamily lending), or has a lending officer that has at least
three years’ experience in business or industrial lending or commercial real estate
lending;
o Can provide independent certification as to availability of funds; and
Has the ability to carry out, either directly or through a servicer, the bookkeeping and
customer service work necessary to manage the assessment accounts.
(b) Property Owner, Brazos County, and the PACE Program Administrator are
notified in writing of the assignment or transfer and the address to which payment of the
future installments should be mailed at least 30 days before the next installment is due
according to the payment schedule included in the Financing Documents attached hereto
as Exhibit D; and
(c) The assignee or transferee of the right to receive the installments executes an
explicit written assumption of all of Lender’s obligations under this Contract.
Upon written notice to Brazos County, Property Owner, and the PACE Program Administrator of
an assignment or transfer of the right to receive the installments that meets all of these
conditions, %UD]RV County will execute a release of Lender making such assignment from this
Contract, and all of the obligations of the Lender under this Contract accruing after the date of
the assignment will be assumed by and transferred to such assignee or transferee. Any attempt to
assign or transfer the right to receive the installments of the Assessment that does not meet all of
these conditions is void.
4. Financing. Lender assumes full responsibility for determining the financial
ability of the Property Owner to repay the Financing and for advancing the funds as set forth in
the Financing Documents and performing Lender’s obligations and responsibilities thereunder.
5. Lien Priority and Enforcement. As provided in the PACE Owner Contract and
Section 399.014 of the PACE Act:
(a) Delinquent installments of the Assessment incur interest and penalties in the same
manner and in the same amount as delinquent property taxes, viz., a delinquent
installment incurs a penalty of 6% of the amount of the installment for the first calendar
month it is delinquent plus 1% for each additional month or portion of a month the
4
installment remains unpaid prior to July 1 of the year in which it becomes delinquent.
However, an installment delinquent on July 1 incurs a total penalty of 12% of the amount
of the delinquent installment without regard to the number of months it has been
delinquent. A delinquent installment also accrues interest at the rate of 1% for each
month or portion of a month the installment remains unpaid. Subject to the limitation set
out in paragraph 10 below, penalties and interest payable under this paragraph will be
retained by %UD]RV County to compensate it for the cost of enforcing the Assessment.
(b) The Assessment, together with any penalties and interest thereon,
(1) is a first and prior lien against the Property from the date on which the
Notice of Contractual Assessment Lien Pursuant to Property Assessed Clean Energy Act
is filed in the Official Public Records of %UD]RV County, as provided by Section 399.013
of the PACE Act, until the Assessment and any penalties and interest are paid; and
(2) such lien has the same priority status as a lien for any other ad valorem
tax, pursuant to Section 399.014(a)(2) of the PACE Act.
(c) The lien created by the Assessment runs with the land, and any portion of
the Assessment that has not yet become due is not eliminated by foreclosure of a
property tax lien, according to Section 399.014(b) of the PACE Act. In the event of a
sale or transfer of the Property by Property Owner, the obligation for the Assessment will
be transferred to the succeeding owner without recourse on %UD]RV County or the PACE
Program Administrator, and with recourse on Property Owner only for any unpaid
installments of the Assessment that became due during Property Owner’s period of
ownership.
(d) In the event of a default by Property Owner in payment of the installments called
for by the Financing Documents, the assessment lien will be enforced by%UD]RV County
in the same manner according to Texas Tax Code Secs. 33.41 to 34.23 that a property tax
lien against real property may be enforced by a local government, to the extent the
enforcement is consistent with Section 50, Article XVI, Texas Constitution.
(e) In a suit to collect a delinquent installment of the Assessment, %UD]RV County will
be entitled to recover costs and expenses, including attorney's fees in the amount of 15%
of the total amount of the delinquent installment, penalties, and interest due, in the same
manner according to Texas Tax Code Sec. 33.48 as in a suit to collect a delinquent
property tax.
6. Servicing and Enforcement of Assessment.
(a) Servicing. The Assessment payments will be billed, collected, received, and
disbursed in accordance with the procedures set out in the Financing Documents attached hereto
as Exhibit D. Unless otherwise specifically undertaken by or on behalf of the PACE Program
Administrator in the Financing Documents, Lender will be responsible for all servicing duties
other than those specifically undertaken by %UD]RV County in this Contract.
5
(b) Remittances. Each of the parties covenants and agrees promptly to remit to the
other party any payments incorrectly received by such party with respect to the Assessment after
the execution of this Contract.
(c) Default and Enforcement. In the event of a default in payment of any
installment of the Assessment as specified in the Financing Documents, Lender agrees to take at
least the following steps to collect the delinquent installment:
(1) Mail a written notice of delinquency and demand for payment to the Owner by both
certified mail, return receipt requested, and first class mail and
(2) Mail a second notice of delinquency to the Owner by both certified mail, return receipt
requested, and first class mail at least 30 days after the date of the first notice if the
delinquency is continuing.
If the Owner fails to cure the delinquency within 30 days after the mailing of the second notice of
delinquency, the Lender or its designated servicer may notify %UD]RV County in writing of a
default by the Owner, and upon receipt of such notice, %UD]RV County agrees that the Authorized
County Official will enforce the assessment lien for the benefit of Lender pursuant to Tex. Local
Gov’t Code Sec. 399.014(c), in the same manner as a property tax lien against real property may
be enforced, to the extent the enforcement is consistent with Section 50, Article XVI, Texas
Constitution.
(d) Final Payment and Release. When the Assessment has been satisfied and paid in
full, together with all interest provided under the Financing Documents and all costs, fees,
penalties, and interest applicable under the PACE Act and payable to Lender or %UD]RV County,
%UD]RV County’s rights under the PACE Owner Contract will cease and terminate, and upon
notice of such payment from Lender, %UD]RV County will execute and record a release of the
Assessment and the Owner Contract.
(e) Limitations on %UD]RV County’s Actions. Without the prior written consent of
Lender, %UD]RV County will not enter into any amendment or modification of or deviation from
the Owner Contract. %UD]RV County will not institute any legal action with respect to the Owner
Contract, the Assessment, or the assessment lien without the prior written request of Lender.
(f) Limitations of%UD]RV County’s Obligations. %UD]RV County undertakes to perform
only such duties as are specifically set forth in this Contract, and no implied duties on the part of
%UD]RV County are to be read into this Contract. %UD]RV County will not be deemed to have a
fiduciary or other similar relationship with Lender. %UD]RV County may request written
instructions for action from Lender and refrain from taking action until it receives satisfactory
written instructions. %UD]RV County will have no liability to any person for following such
instructions, regardless of whether they are to act or refrain from acting.
(e) Costs. No provisions of this Contract will require %UD]RV County to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder.
6
7. Lender’s Warranties and Representations. With respect to this Contract, Lender
hereby warrants and represents that on the date on which Lender executes this Contract:
(a) Lender is a qualified lender under the PACE Program, as defined in paragraph
3(a) above, and is fully qualified under the PACE Program to enter into this Contract and the
Financing Documents;
(b) Lender has independently and without reliance upon %UD]RV County conducted its
own credit evaluation, reviewed such information as it has deemed adequate and appropriate, and
made its own analysis of the Owner Contract, the Project, and Property Owner’s financial ability
to perform the financial obligations set out in the Financing Documents;
(c) Lender has not relied upon any investigation or analysis conducted by, advice or
communication from, or any warranty or representation by %UD]RV County or any agent or
employee of %UD]RV County, express or implied, concerning the financial condition of the
Property Owner or the tax or economic benefits of an investment in the Assessment.
8. Written Contract Required by the PACE Act. This Contract constitutes a written
contract between %UD]RV County and Lender, as required under Section 399.006 of the PACE
Act.
9. Miscellaneous.
(a) Binding Effect. This Contract is binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, representatives, successors, and assigns.
(b) Notices. All notices and other communications required or permitted hereunder
shall be in writing and mailed by certified mail, return receipt requested, addressed to the other
party at the address stated below the signature of such party or at such other address as such
party may from time to time designate in writing to the other party, and shall be effective from
the date of receipt.
(c) GOVERNING LAW. THIS CONTRACT SHALL IN ALL RESPECTS BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF TEXAS (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
(d) Entire Agreement. This Contract constitutes the entire agreement between the parties
with respect to the subject matter hereof and shall not be amended or altered in any manner
except by a document in writing executed by both parties.
(e) Captions. Section titles are for convenience of reference only and shall not be of any
legal effect.
7
(f) Counterparts. This Contract may be executed in any number of counterparts, all of
which when taken together shall constitute one agreement binding on the parties,
notwithstanding that all parties are not signatories to the same counterpart.
10. Interest. Interest and penalties in the event of default, as provided above, are
explicitly authorized by Section 399.014(d) of the PACE Act. However, in no event will the
total amount of interest on the Assessment, including statutory interest payable to %UD]RV County
and contractual interest payable to Lender under the Financing Documents, exceed the maximum
amount or rate of nonusurious interest that may be contracted for, charged, or collected under
Texas law (the “usury limit”). If the total interest payable to %UD]RV County and Lender exceeds
the usury limit, interest payable to %UD]RV County will be reduced and any interest in excess of
the usury limit will be credited to the amount payable to %UD]RV County or refunded. This
provision overrides any conflicting provisions in this Contract.
11. Certification. %UD]RV County certifies that the PACE Program has been duly
adopted and is in full force and effect on the date of this Contract. Property Owner has
represented to Lender and %UD]RV County that the Project is a “qualified project” as defined in the
PACE Program and Section 399.002 of the PACE Act. The Assessment has been imposed on
the Property as a lien in accordance with the PACE Owner Contract and the PACE Act. %UD]RV
County has not assigned or transferred any interest in the Assessment or the PACE Owner
Contract.
12. Special Provisions. (to be added as necessary)
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed as
of the date first above written.
LENDER: %5$=26 COUNTY, TEXAS
By: By:
Name: Kristeen Roe, Brazos County Tax
Assessor-Collector
Address:
4151 County Park Ct.
____________________________________ Bryan, Texas 77802
Title: _______________________________ AUTHORIZED COUNTY OFFICIAL
8
EXHIBIT A
PROPERTY DESCRIPTION
9
EXHIBIT B
OWNER CONTRACT
10
EXHIBIT C
NOTICE OF CONTRACTUAL ASESSMENT LIEN
PURSUANT TO PROPERTY ASSESSED CLEAN ENERGY ACT
11
EXHIBIT D
FINANCING DOCUMENTS
12
EXHIBIT E
MORTGAGE HOLDER(S) CONSENT