Dated2012
(1)THE LOWER MILL ESTATE LIMITED
(2)
DEED OF ASSIGNMENT OF GROUND RENTS AT THE
LOWER MILL ESTATE
Heron Place
3 George Street
London W1U 3QG
Tel: 020 7563 1000
Fax: 020 7486 7796
Ref: DW/T110/57
Contents
Clause
1.Definitions......
2.Assignment......
3.Late Payment of Rents......
4.Collection of Rents......
5.Restriction on Title......
6.Assignor Covenants relating to Tenants......
7.Sale of Freehold......
8.Assignment......
9.Prohibition on Variation of the Leases......
10.Rent Authority Letter......
11.Further assurance......
12.VAT......
13.Notices......
14.Miscellaneous......
15.Governing law and jurisdiction......
THIS DEED is dated 2012
Parties
(1)The Lower Mill Estate Limited (Company Number 03314399) whose registered office is at 51 Queen Anne Street, London W1G 9HS(Assignor).
(2)[] (Assignee).
Agreed terms
1.Definitions
1.1In this deed, unless the context requires otherwise, the following words shall have the following meanings:
Capital Value:(a) If an election is made pursuant to clause 3.2(b), the Capital Value will be the purchase price for the relevant Lease achieved.
(b) If an election is made pursuant to clause 3.2(a), Capital Value is agreed or determined pursuant to clause 3.4
Distribution Date: means the date calculated pursuant to clause3.5
Interest:any interest payable pursuant to the term of the Leases by the Tenants on late payment of the Rents will also be payable to the Assignee.
Leases:the leases of the properties owned by the Assignor set out in the Schedule (and Lease shall be construed as one of those Leases as the context shall dictate)
Premium: £[ ] [( pounds)] exclusive of VAT
Property:all that freehold land and buildings known as the Lower Mill Estate registered at the Land Registry under title numbers [GR298774 GR142174, GR108122, GR213882 and GR229974]
Rents: the sum first reserved as “Rent”under the Leases (with “Rent” being as defined in the Leases meaning the ground rent payable by the relevant tenant but no other sum)
Tenants: the tenants under the Leases
VAT:value added tax chargeable under the Value Added Tax Act 1994 or any similar replacement or additional tax.
Working Day:any day which is not a Saturday, a Sunday, a bank holiday or a public holiday in England.
1.2Clause, schedule and annex headings shall not affect the interpretation of this deed.
1.3Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular
1.4A reference to any party shall include the party’s personal representatives, successors and permitted assigns.
1.5A reference to any statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.Assignment
In consideration of the Assignee today paying to the Assignor the Premium (receipt of which is acknowledges), the Assignor hereby assigns all its rights to payment and receipt of the Rentsand Interest to the Assignee.
3.Late Payment of Rents
3.1If any of the Tenants are in arrears of their Rent for a sum over £1,000and for a period of more than 26 weeks, then at the written request of the Assignee, the Assignor will start forfeiture proceedings under the relevant Lease pursuant to its right under the relevant Lease provided that:
(a)the Assignee hereby irrevocably agrees to indemnify the Assignor against all costs and expenses of such enforcement (including, but without limitation, any solicitors’, surveyors' or other professionals’ costs and expenses, and any VAT on them, assessed on a full indemnity basis);
(b)the Assignor shall not be required to take any action or incur any costs under this clause until the Assignee has given to the Assignor such security as the Assignor shall in its reasonable discretion require;
(c)the Assignee shall join in any action or proceedings if so requested by the Assignor.
3.2In the event that a Lease is forfeitedso that the unexpired leasehold interest passes to the Assignor with the forfeiture order being free from any further challenge (“Forfeiture Date”), then the Assignor shall elect in writing within 40 working days of the Forfeiture Date whether it wishes to either:
(a)retain the leasehold interest (or merge it into the freehold title of the Assignor); or
(b)dispose of the Lease on the open market.
If no such election is made within 40 working days of the Forfeiture Date then the Assignor shall be deemed to have elected to dispose of the Lease on the open market.
3.3If the Assignor makes an election pursuant to clause 3.2(b), then the Assignor shall use reasonable endeavours to market the relevant forfeited Lease for sale and to proceed with such sale on an arms length basis and on terms reasonably acceptable to the Assignor
3.4
(a)If the Assignor makes an election pursuant to clause 3.2(a) the parties shall seek to thento reach agreement on the Capital Value. If the parties fail to agree on the Capital Value within 20 workings days after the election (or deemed election) pursuant to clause 3.2(a)then either party may refer the matter to an independent chartered surveyor appointed jointly by the parties with at least 10 years' experience in valuing properties similar to the property demised in the relevant Lease.
(b)In default of agreement on the identity of the chartered surveyor either party may apply to the President of the Royal Institution of Chartered Surveyors requesting that an appointment be made.
(c)The chartered surveyor will act in accordance with the Arbitration Act 1996 and the costs of the arbitration will be payable in the proportions determined by the chartered surveyor. The parties agree to pay their respective share of the costs as so determined. The Capital Value will be the figure determined by the chartered surveyor as price for which the relevant Lease as a whole should exchange as at the Forfeiture Date assuming:
(i)a willing buyer and a willing seller in an arm's length transaction after proper marketing wherein the parties have each acted knowledgeably, prudently and without compulsion;
(ii)any breach of the relevant Lease has been remedied
(iii)that in the event of any damage to or destruction of the Property due to any insured risk, the Property has been fully reinstated.
3.5
(a)If an election is made pursuant to clause 3.2(a), the Distribution Date will be three working days after the date that the Capital Value is agreed or determined pursuant to clause 3.3
(b)If an election is made pursuant to clause 3.2(b), the Distribution Date will be three working days after the date the completion of the sale of the Lease occurs
3.6The Capital Value will be distributed between the parties on the Distribution Date (in the case of an election or deemed election pursuant to clause 3.2(b)) using the proceeds of sale of the Lease (or in the case of an election pursuant to clause 3.2(a) from the Assignor’s own funds)in the following order:
(a)The Assignor will be fully reimbursed in respect of all costs and expenses of such enforcement (including, but without limitation, any solicitors’, surveyors' or other professionals’ costs and expenses, and any VAT on them, assessed on a full indemnity basis);
(b)If an election is made pursuant to clause3.2(b), the Assignor will be fully reimbursed the costs and expenses of disposing of the Lease (including but not limited to agents fees and professional costs)
(c)The Assignee will be reimbursed in full for all monies paid to the Assignor pursuant to clause 3.1(c)
(d)Any breach of the tenant’s covenants in the Lease shall be remedied. Where such breach is not capable of being remedied a cash sum shall be paid to the Assignee commensurate with the loss suffered (assessed on a full indemnity basis).
(e)Any remaining Capital Value will then be split equally between the Assignor and Assignee
4.Collection of Rents
4.1From the date hereof, the Assignee is responsible for collecting the Rents. For the avoidance of doubt, the Assignor shall have no responsibility to pursue payment of late payments of the Rents other than as set out in Clause 3 and makes no representation, warranty or inducement as their collectability or otherwise.
4.2The Assignee covenants with the Assignor that, notwithstanding the terms of the Leases, they will not charge Tenants interest on the late payment of Rents until such point as the Rents have been outstanding for more than 28 days.
4.3The parties acknowledges and accept that from the date of this deed the obligation to charge and account for VAT on the Rents passes to the Assignee and the Assignee will indemnify and keep the Assignor fully and effectively indemnified against all liability, costs charges and expenses (on a full indemnity basis) arising in connection with any VAT due on the Rents.
5.Restriction on Title
The Assignor hereby consents to the Assignee applying to the Land Registry to enter the following restriction on the freehold titles that comprise the Property:
“No disposal of the registered estate by the proprietor of the registered estate or by the proprietor of the registered charge is to be registered without a certificate signed by the conveyancer of theproprietor of the registered estate or the proprietor of the registered charge (not being a charge registered before the entry of this restriction), that the provisions of clauses 7.1 of a Deed of Assignment dated[ ] 2012made between The Lower Mill Estate Limited (1) and [ ] (2) has been complied with or that those provisions do not apply”
6.Assignor Covenants relating to Tenants
The Assignor covenants that:
6.1it will provide a copy to the Assignee of any
(a)written notice that the Assignor receives from any of the Tenants detailing any assignment transfer underlease (for a term in excess of one year) mortgage charge grant of probate or letters of administration assent or other disposition or devolution of the term of the relevant Lease;
(b)any deed of covenant enetered into following the devolution transmission assignment or transfer or underlease (for a term of more than one year) of any of the Leases;
within twenty Working Days of the Assignor receiving the same.
6.2It will inform and keep the Assignee informed of any forfeiture proceedings relating to the Leases whether instigated at the request of the Assignee or otherwise.
7.Sale of Freehold
7.1The Assignor covenants with the Assignee that it will not transferthe freehold of any area demised under the Leases without first entering into a deed of novation in the form annexed to this deed at Annex 1 (but subject to such reasonable and proper amendments as may be reasonably necessary in the context of the particular transfer).
7.2The Assignee covenants with the Assignor that upon receipt of a written notice by the Assignor requesting the Assignee to enter into a deed of novation in the form annexed to this deed at Annex 1 they will execute and do all that is necessary to complete such a document within 10 Working Days or such later date as the Landlord shall nominate PROVIDED THAT the Assigneeshall only be required to complete the deed of novation where the third party to the deed of novation will simultaneously purchase the Property (or part thereof) from the Assignor.
8.Assignment
8.1This deed may be assigned charged or mortgaged by the Assignee.
8.2The Assignee shall provide to the Assignor written notice of any assignment of this deed charge or mortgage over this deed within 28 days of the disposal, charge or mortgageproviding full details of the assignee, charge or mortgagee (as the case maybe).
9.Prohibition on Variation of the Leases
The Assignor hereby covenants with the Assignee that it will not make any alterations or variations to Rents, the review of the Rents or the payment of interest on late payment of the Rents without the written consent of the Assignee (such consent not to be unreasonably withheld or delayed) save that this shall not prevent the Assignor from seeking forfeiture of any of the Leases should they have grounds to do so.
10.Rent Authority Letter
10.1The Assignor covenants that within 10 Working Days of the date hereof they will send a rent authority letter in the form of the letter annexed at Annex 2 of this deed to the Tenants.
10.2Any Rents received by the Assignor after the date hereof shall be held on trust for the Assignee and shall be paid to the Assignee within 10 Working Days of receipt of the same.
11.Further assurance
Each party shall do, or procure the doing of, all acts and things, and execute, or procure the execution of, all documents, as may reasonably be required to give full effect to this deed.
12.VAT
Any obligation to pay money refers to a sum exclusive of VAT and the amount of any VAT payable in addition (whether by the Assignor or by the Assignee) shall be paid by the Assigneeto the Assignor or the Assignor to the Assignee as appropriate.
13.Notices
13.1A notice given under or in connection with this deed shall be:
(a)in writing unless this lease expressly states otherwise and for the purposes of this clause a fax or an e-mail is not in writing;
(b)given to the Assignor by:
(i)leaving it at the Assignor's address given in clause 13.5; or
(ii)sending it by pre-paid first-class post or other next working day delivery service at the Assignor's address given in clause 13.5;
(c)given to the Assignee by:
(i)leaving it at the Assignee's address given in clause 13.6; or
(ii)sending it by pre-paid first-class post or other next working day delivery service at the Assignee's address given in clause 13.6.
13.2If a notice is given in accordance with clause 13.1, it shall be deemed to have been received:
(a)if delivered by hand, at the time the notice is left at the proper address; or
(b)if sent by pre-paid first-class post or other next working day delivery service, on the secondWorking Day after posting.
13.3This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.4Section 196 of the Law of Property Act 1925 shall otherwise apply to notices given under this lease.
13.5The Assignor's address for service is Lower Mill Estate, Somerford Keynes, Nr Cirencester, Gloucestershire GL7 6BG or such other address as the Assignor may notify to the Assignee from time to time.
13.6The Assignee's address for service is [ASSIGNEE'S ADDRESS FOR SERVICE] or such other address as the Assignee may notify to the Assignor from time to time.
14.Miscellaneous
14.1No person who is not a party to this deed shall have any right to enforce its terms by virtue of the Contracts (Rights of Third Parties) Act 199 or otherwise.
14.2Each party shall pay its own costs incurred in connection with the negotiation, preparation and execution of this deed and any documents referred to in it.
14.3This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter
14.4Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this agreement.
14.5Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 14.6.
14.6Each party may disclose the other party’s confidential information:
(a)to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14;
(b)as may be required by law, court order or any governmental or regulatory authority.
14.7No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
15.Governing law and jurisdiction
15.1This deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
15.2The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this deed or its subject matter or formation (including non-contractual disputes or claims).
Schedule of Leases
This document has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.
Signed as a deed by
The Lower Mill Estate Limited
acting by Jeremy Paxton
a director in the presence of:
Witness’ signature:
Witness’ name:
Address:
Occupation:
[INSERT EXECUTION CLAUSE FOR ASSIGNEE]
Annex 1
THIS DEED is dated 20[]
Parties
(1)The Lower Mill Estate Limited (Company Number 03314399) whose registered office is at 51 Queen Anne Street, London W1G 9HS( Party 1).
(2)[] (Party 2).
(3)[] (Party 3).
Background
[NOTE: THE DRAFTING WILL NEED TO AMENDED IF THE TRANSFER IS OF PART OF THE PROPERTY SO TO LIMIT THE NEW OWNERS OBLIGATIONS TO THE EXTENT OF THE PROPERTY THAT IS TRANSFERED TO THEM]
(A)Party 1 and Party 2 are party to a Deed of Assignment dated [ 2012] (Contract).
(B)The parties have agreed that Party 1's obligations and liabilities under the Contract shall be novated to Party 3 on the terms of this deed.
Agreed terms
1.Novation
1.1Party 1 transfers all its rights and obligations under the Contract to Party 3. Party 3 shall enjoy all the rights and benefits of Party 1 under the Contract, and all references to Party 1 in the Contract shall be read and construed as references to Party 3.
1.2Party 3 agrees to perform the Contract and be bound by its terms in every way as if it were the original party to it in place of Party 1.
1.3Party 2 agrees to perform the Contract and be bound by its terms in every way as if Party 3 were the original party to it in place of Party 1.
2.Release of obligations and liabilities
2.1Party 2 releases and discharges Party 1 from all claims and demands arising under or in connection with the Contract, except that nothing in this deed shall affect or prejudice any claim or demand that either Party 1 or Party 2 may have against the other relating to matters arising before the date of this deed.