DEED OF NOVATION

 

Exhibit 10.15

 

 

DEED OF NOVATION

 

Partners for Growth V, LP

 

Openmarkets Group Limited

 

Openmarkets (Holdings) Pty Ltd

 

The additional parties set out in the schedule

 

 

 

    ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇    
Level 27, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇   ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇   GPO Box 2778
Brisbane QLD ▇▇▇▇   ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇   ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
    ABN 31 152 230 478    
Liability limited by a scheme approved under Professional Standards Legislation.

 

 

 

 

THIS AGREEMENT is made on 30 August 2022

 

PARTIES

 

Name Partners for Growth V, LP
   
Short form name Continuing Party
   
Notice details ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. Tiburon, California 94920, United States

 

Name Openmarkets Group Limited
   
Company number 159 661 453
   
Short form name Outgoing Party
   
Notice details Level 40, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇

 

Name Openmarkets (Holdings) Pty Ltd
   
ACN 162 523 211
   
Short form name New Party
   
Notice details Level 40, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇

 

Other parties As specified in the schedule

 

BACKGROUND

 

AThe Outgoing Party, the New Party, the Continuing Party, OMRA and the BMYG Creditor Parties are parties to the Novation Documents.
  
BThe New Party is a guarantor under the Facility Agreement.
  
CImmediately following the Completion Date:

 

(a)a principal amount of $1,555,556 will be outstanding under the Facility Agreement.
   
(b)a principal amount of $138,441 will be outstanding under Inside Debt.
   
(c)a principal amount of $12,730,000 will be outstanding under the OMRA Debt.

 

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(d)a principal amount (including capitalised interest) of $17,867,073 will be outstanding under the BMYG Debt.
   
(e)a principal amount of $11,932,300 will be outstanding under the Unsecured Note Debt.
   
(f)an amount of $1,125,000 plus GST will be owing to ▇▇▇▇ and Partners Limited.
   
(g)an amount of $597,500 will be provisioned for payment to certain manager of the Outgoing Party for assisting in managing all elements of a transaction to Completion.

 

DThe parties to this deed have agreed that, as and from the Completion Date, the rights and obligations of the Outgoing Party under the Novation Documents will be novated to the New Party, on the terms and conditions of this deed.

 

AGREED TERMS

 

1DEFINITIONS AND INTERPRETATION

 

1.1Definitions

 

In this document, terms defined in the Facility Agreement have the same meaning and unless the context requires otherwise, the following words and phrases have the following:

 

  Amendment Fee (Initial) means an amendment fee payable by the New Party to the Continuing Party in an amount of A$25,000 (plus GST, if any).
     
  Amendment Fee (Deferred) means an amendment fee payable by the New Party to the Continuing Party in an amount of A$75,000 (plus GST, if any).
     
  BMYG Subordinated Creditors

means each of:

 

a) BMYG Asset Management Pty Ltd ACN 133 561 887; and

 

b) Enhanced Investments Pty Ltd ACN 639 583 930.

     
  Completion

means the transfer to OMG Crypto Pty Ltd ACN 660 155 000 of all shares owned by the Outgoing Party in:

 

a) New Party;

 

b) OMRA; and

 

c) ▇▇▇▇▇▇ Trading Pty Ltd ACN 619 836 314,

 

pursuant to the terms of the Share Sale Agreement.

     
  Completion Date means the date on which Completion occurs.
     
  CP Satisfaction Date means the date on which the Continuing Party confirms satisfaction or waiver of the conditions precedent under clause 2.1
     
  Facility Agreement means the facility agreement between the Outgoing Party and the Continuing Party dated on or around 17 April 2019, as amended six different times, the last being on or around 10 May 2022 attached as Annexure A.

 

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  General Security Deed means the general security deed between the Outgoing Party and the Continuing Party dated on or around on or around 17 April 2019 to secure amounts advanced under the Facility Agreement attached as Annexure B.
     
  OMRA means OMRA Fund Pty Ltd ACN 643 757 751 in its capacity as trustee of the OpenMarkets Regulatory Arbitrage Fund.
     
  Novation Documents

means each of:

 

a) the Facility Agreement;

 

b) the General Security Deed;

 

c) the Corporate Guarantee;

 

d) the OMRA Priority Deed; and

 

e) the BMYG Subordination Deed.

 

  Security Registrations

means PPSR registration numbers for all present and after-acquired property granted by the Outgoing Party to the Continuing Party:

 

a) 201904160035377;

 

b) 201904160036733;

 

c) 201904160037579;

 

d) 201904160038072;

 

e) 201904160038541; and

 

f) 201904160038713.

     
  Share Sale Agreement means the Share Sale Agreement between OMG Crypto Pty Ltd ACN 660 155 000 (as purchaser) and the Outgoing Party (as seller) dated 25 August 2022.
     
  Warrants means the warrants issued by the Outgoing Party to the Continuing Party on or around 27 December 2019, 21 January 2021 and 6 January 2022.
     
  Warrant Payment means $75,813.

 

1.2Interpretation

 

In this deed unless the contrary is expressly provided:

 

(a)headings are for ease of reference only and do not affect the meaning of this deed;
   
(b)the singular includes the plural and vice versa;
   
(c)other grammatical forms of defined words or expressions have corresponding meanings;
   
(d)a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this deed and a reference to this deed includes any schedules and annexures;

 

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(e)a reference to a document or agreement, including this deed, includes a reference to that document or agreement as novated, altered or replaced from time to time;
   
(f)a reference to “dollar” or “$” is a reference to AUD currency;
   
(g)a reference to a specific time for the performance of an obligation is a reference to that time in the place where that obligation is to be performed;
   
(h)a reference to a party includes its executors, administrators, successors and permitted assigns; and
   
(i)words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies.

 

2Condition precedent

 

2.1The terms of this deed are conditional and only take effect upon each of the following conditions precedent being satisfied or waived (in the Continuing Party’s discretion):

 

(a)payment of the Final Payment to the Continuing Party;
   
(b)payment of the Amendment Fee (Initial) to the Continuing Party; and
   
(c)the Completion Date occurring.

 

2.2The Outgoing Party must keep the Continuing Party and New Party notified in relation to the status of the conditions precedent in clause 2.1.

 

3novation

 

3.1Novation

 

With effect on and from the CP Satisfaction Date:

 

(a)the Outgoing Party novates to the New Party, and the New Party accepts and assumes, all the rights and obligations of the Outgoing Party under the Novation Documents;
   
(b)the New Party replaces the Outgoing Party as a party under the Novation Documents as if the New Party had originally been a party to the Novation Documents instead of the Outgoing Party;
   
(c)each of the Continuing Party, OMRA and the BMYG Creditor Parties agree and accept the New Party as a party to the Novation Documents in the place of the Outgoing Party, and assume obligations to, and grant rights to, the New Party which are identical to the obligations owed and the rights granted to the Outgoing Party under the Novation Documents; and
   
(d)subject to the terms and conditions of this deed, the Novation Documents take effect as an agreement on the same terms as agreed by the Outgoing Party and each other counterparty, except that all the references to the Outgoing Party in the Novation Documents will be read and construed as if they were reference to the New Party.

 

3.2Assumption of Rights and Obligations

 

With effect on and from the CP Satisfaction Date:

 

(a)the Outgoing Party absolutely and unconditionally assigns all of its right, title and interest under or in connection with the Novation Documents to the New Party;

 

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(b)the New Party must comply with the Novation Documents and obtains the rights and powers and assumes all of the obligations and liabilities of the Outgoing Party under the Novation Documents; and
   
(c)each of the Continuing Party, OMRA and the BMYG Creditor Parties must comply with the Novation Documents on the basis that the New Party has replaced the Outgoing Party under it in accordance with this deed.

 

3.3Assumption of Rights and Obligations

 

All parties to this document consent to the novation under this clause 3.

 

3.4Representation in relation to ongoing Finance Debt

 

 (a)The New Party represents and warrants in favour of the Continuing Party, OMRA and the BMYG Creditor Parties that the New Party will have no Indebtedness immediately following the Completion Date other than:

 

(i)Inside Debt, being $138,441;
   
(ii)OMRA Debt, being $12,730,000;
   
(iii)BMYG Debt, being $17,867,073; and
   
(iv)Unsecured Note Debt, being $11,932,300,

 

(which will constitute “Permitted Indebtedness” for the purposes of the Facility Agreement).

 

(b)The Continuing Party, OMRA and the BMYG Creditor Parties hereby consent to the following:

 

(i)the repayment of:

 

(A)the Inside Debt, within five (5) Business Days from Completion; and
   
(B)Unsecured Note Debt, 52% within five (5) Business Days from Completion and 48% (i.e. the balance of the Unsecured Note Debt) within five Business Days from 30 November 2022;

 

(ii)the payment of:

 

(A)$1,125,000 plus GST to ▇▇▇▇ and Partners Limited; and
   
(B)no more than $597,500 to certain manager of the Outgoing Party for assisting in managing all elements of a transaction to Completion; and

 

(iii)the transfers of shares contemplated at Completion pursuant to the Share Sale Agreement.

 

(c)The Continuing Party confirms in favour of the New Party and the Outgoing Party that:

 

(i)no Default will arise solely as a consequence of the completion of the transactions contemplated in clauses 3.4(a) and (b); and
   
(ii)it has not received notice (and is not otherwise actually aware) of any Default which is subsisting.

 

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4Release from the Novation Documents and DISCHARGE OF LENDER WARRANTS

 

4.1With effect on and from the CP Satisfaction Date, the Continuing Party, OMRA, the BMYG Creditor Parties (on the one hand) and the Outgoing Party (on the other hand) irrevocably mutually release each other from all future liabilities and obligations under the Novation Documents. Nothing in this clause 4.1 will affect the continuing liabilities and obligations of the Continuing Party, OMRA and/or the BMYG Creditor Parties to each other under the Novation Documents.

 

4.2With effect on and from the CP Satisfaction Date, the Warrants are terminated and no exercise of the Warrants can or will be made by the Lender.

 

5Further assurance

 

Within 10 Business Days from Completion, the Continuing Party must, or allow the Outgoing Party to do everything necessary to enable it to release, amend, or otherwise change the Security Registrations made in connection with the General Security Deed recording the discharge of those registrations in connection with the Outgoing Party and the creation of equivalent registrations in connection with the New Party.

 

6Amendment fee

 

In consideration of the Continuing Party agreeing to enter into this deed, the New Party must pay an amendment and novation fee to the Continuing Party in two tranches:

 

(a)the Amendment Fee (Initial) on or before the CP Satisfaction Date; and
   
(b)the Amendment Fee (Deferred) on the earlier of:

 

(i)the date the Secured Moneys become due and payable; and
   
(ii)the scheduled date for repayment of the Secured Moneys.

 

For the avoidance of doubt, the Amendment Fee (Deferred) will constitute Secured Moneys.

 

7general

 

7.1Entire Agreement

 

This deed constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this deed and have not further effect.

 

7.2Amendment

 

This deed may not be amended or varied unless the amendment or variation is in writing and signed by all parties to this deed.

 

7.3Assignment

 

No party may assign, transfer or otherwise deal with this deed or any right or obligation under this deed without the prior written consent of the other parties.

 

7.4Severability

 

Part or all of the provisions of this deed that is illegal or unenforceable will be severed from this deed and will not affect the continued operation of the remaining provisions of this deed.

 

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7.5Waiver

 

Waiver of any power or right under this deed:

 

(a)must be in writing signed by the party entitled to the benefit of that power or right; and
   
(b)is effective only to the extent as set out in that written waiver.

 

7.6Further assurances

 

Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this deed and the transactions contemplated by it (including, but not limited to, the execution of documents).

 

7.7Costs

 

Each party must bear its own legal, accounting and other costs for the preparation and execution of this deed.

 

7.8Counterparts

 

This deed may be executed in any number of counterparts and all counterparts taken together will constitute one document.

 

7.9Governing Law and Jurisdiction

 

(a)This deed will be governed by and construed in accordance with the laws in force in the State of New South Wales, and each party submits to the non-exclusive jurisdiction of the courts of the State of New South Wales.
   
(b)Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

 

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Schedule

 

OPENMARKETS AUSTRALIA LIMITED (ACN 090 472 012)

 

TRADEFLOOR IPCO PTY LTD (ACN 603 351 015)

 

TRADEFLOOR PTY LTD (ACN 603 351 024)

 

TRADEFLOOR HOLDINGS PTY LTD (ACN ▇▇▇ ▇▇▇ ▇▇▇)

 

OMRA FUND PTY LTD (ACN 643 757 751) IN ITS CAPACITY AS TRUSTEE OF THE OPENMARKETS REGULATORY ARBITRAGE FUND

 

ENHANCED INVESTMENTS PTY LTD (ACN 639 583 930)

 

BMYG ASSET MANAGEMENT PTY LTD (ACN 133 561 887)

 

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ANNEXURE A

Facility Agreement

 

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ANNEXURE B

General Security Deed

 

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SIGNING PAGE

 

Executed by Openmarkets Group Limited ACN 159 661 453 in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

  

/s/ ▇▇▇▇▇▇ ▇▇▇

Signature of director

  

Signature of company secretary

     

▇▇▇▇▇▇▇ ▇▇▇▇▇▇

  

▇▇▇▇▇▇ ▇▇▇

Name of director

   Name of company secretary
     

Executed by Openmarkets (Holdings) Pty Ltd ACN 162 523 211 in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

  

/s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇

Signature of director

  

Signature of company secretary

▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇

     

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

  

Name of director

   Name of company secretary
     
Executed by Openmarkets Australia Limited ACN 090 472 012 in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇  

/s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇

Signature of director  

Signature of company secretary

     

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

  

▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇

Name of director

   Name of company secretary
     

Executed by TradeFloor IPCO Pty Ltd ACN 603 351 015 in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

  

Signature of director (Sole)

  

Signature of company secretary

   

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

  

Name of Sole director

   Name of company secretary

 

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Executed by TradeFloor Pty Ltd ACN 603 351 024 in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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)

)

)

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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

  

Signature of Sole director

  

Signature of company secretary

     

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

    
Name of Sole director   Name of company secretary
     

Executed by TradeFloor Holdings Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇ in accordance with section 127(1) of the Corporations Act 2001 (Cth):

 

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/s/ ▇▇▇▇▇▇ ▇▇▇

    

Signature of Sole director

  

Signature of company secretary

     
Ruihao Wei    
Name of Sole director   Name of company secretary
     

Executed by Enhanced Investments Pty Ltd ACN 639 583 930 in accordance with section 127(1) of the Corporations Act 2001 (Cth):

 

)

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)

)

)

  
     

/s/ ▇▇▇▇▇▇ ▇▇▇

  

/s/ ▇▇▇▇▇▇ ▇▇▇

Signature of director

  

Signature of company secretary

     

▇▇▇▇▇▇ ▇▇▇

  

▇▇▇▇▇▇ ▇▇▇

Name of director   Name of company secretary
     

Executed by BMYG Asset Management Pty Ltd. ACN 133 561 887 in accordance with section 127(1) of the Corporations Act 2001 (Cth):

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)

)

)

)

  
     

/s/ ▇▇▇▇▇▇ ▇▇▇

  

/s/ ▇▇▇▇▇▇ ▇▇▇

Signature of director

  

Signature of company secretary

     

▇▇▇▇▇▇ ▇▇▇

  

▇▇▇▇▇▇ ▇▇▇

Name of director   Name of company secretary
     

Executed by OMRA Fund Pty Ltd ACN 643 757 751 in its capacity as trustee of the OpenMarkets Regulatory Arbitrage Fund in accordance with section 127(1) of the Corporations Act 2001 (Cth):

 

)

)

)

)

)

  
     

/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

    

Signature of Sole director

   Signature of company secretary
     

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇

    
Name of Sole director   Name of company secretary

 

PARTNERS FOR GROWTH V, L.P.  
     
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇  
     
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇  
     
Title: Manager, Partners for Growth V, LLC  
  Its General Partner  

 

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Filed: November 13th, 2023