Novation Deed - Upstream
Version 3.0 dated 13 March 2025
(1) [CONTINUING PARTY]
(2) VOLTAIC ENERGY PTY LTD
(3) BIRDWOOD BUSINESS FINANCE PTY LTD
DEED OF NOVATION.
This Deed is made on
BETWEEN:
(1) The Continuing Party set out in Schedule 1 ("Continuing Party").
(2) Voltaic Energy Pty Ltd (ACN 162 893 889), trading as Upstream Energy, of Level 26, 1 Bligh St, Sydney NSW 2000 ("Outgoing Party").
(3) Birdwood Business Finance Pty Ltd (ACN 623 989 622) of Level 18, 1 Nicholson Street, East Melbourne VIC 3002 ("Incoming Party").
WHEREAS:
(A) The Continuing Party and the Outgoing Party are parties to the Agreements.
(B) The Incoming Party is acquiring certain assets from the Outgoing Party pursuant to a business asset purchase agreement (“BPA”), including the Outgoing Party’s interest in the Agreements.
(C) The parties to this Deed wish to novate the Agreements such that, subject to Completion occurring, the Incoming Party is substituted for the Outgoing Party as a party to the Agreements on the Effective Date.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this Deed:
"Agreements"
means the agreements set out in Schedule 1.
“BPA”
has the meaning given in Recital B.
"Business Day"
means a day on which banks are open for business in Melbourne, Australia, other than a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia.
"Claim"
means any claim, action, demand, proceeding, litigation, investigation, judgment, however it arises and whether it is present or future, fixed or unascertained, actual or contingent, and includes any claim, action, demand or proceeding based in contract, tort, equity, or under statute or arising under any indemnity.
“Completion”
means completion of the sale and purchase of assets that includes the Agreements in accordance with the BPA.
"Deed"
means this deed of novation and any schedules and annexures thereto.
"Effective Date"
means the date that Completion occurs.
"Loss"
means any damage, liability, loss, charge, cost or expense (including legal expenses), interest, penalty, fine and tax, however it arises and whether it is present or future, fixed or unascertained, actual or contingent but excluding any consequential or indirect loss, economic loss or loss of profits.
1.2 INTERPRETATION
In this Deed, the following rules of interpretation apply, except where the contrary intention appears or context otherwise requires:
1.2.1 headings and subheadings are for convenience only and do not affect the interpretation of this Deed;
1.2.2 the singular includes the plural and vice versa, and a gender includes other genders;
1.2.3 another grammatical form of a defined word or expression has a corresponding meaning;
1.2.4 a reference to:
(a) a clause, paragraph, schedule, appendices, attachments, exhibits, or annexure is to a clause or paragraph of, or schedule, or appendices, attachment, exhibits, or annexure to, this Deed, and a reference to this Deed includes any schedule, appendix, attachment, exhibit, or annexure;
(b) a document, agreement, or instrument includes the document, agreement or instrument as novated, amended, supplemented or replaced from time to time;
(c) time is to Melbourne, Victoria time unless otherwise specified;
(d) a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
(e) parties means the parties to this Deed and to a party means a party to this Deed;
(f) a person (including a party) includes:
(i) an individual, company, corporation or other body corporate, association, partnership, firm, joint venture, trust, authority, unincorporated association or government agency; and
(ii) the person's representatives, successors, permitted assigns, substitutes, executors and administrators;
(g) a group of persons is a reference to any 2 or more of them taken together and to each of them individually;
(h) a law:
(i) includes a reference to any constitutional provision, subordinate legislation, treaty, decree, convention, statute, regulation, rule, ordinance, proclamation, by-law, judgment, rule of common law or equity or rule of any applicable stock exchange;
(ii) is a reference to that law as amended, consolidated, supplemented, re-enacted or replaced; and
(iii) is a reference to any regulation, rule, ordinance, proclamation, by-law or judgment made under that law;
(i) "writing" or "written" includes by email unless otherwise expressly provided in this Deed;
1.2.5 specifying anything in this Deed after the terms "include", "including", "includes", "for example", "such as" or any similar expression does not limit the meaning of general sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary; and
1.2.6 a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Deed or any part of it.
2. NOVATION, RELEASE AND INDEMNITY
2.1 Novation
2.1.1 On and from the Effective Date, the Outgoing Party novates the Agreements to the Incoming Party so that the Incoming Party:
(a) is bound by, and must comply with, the Agreements in place of the Outgoing Party;
(b) enjoys all rights and benefits conferred on the Outgoing Party under or in connection with the Agreements arising or accruing on or after the Effective Date;
(c) assumes all obligations and liabilities of the Outgoing Party under or in connection with the Agreements arising or accruing on or after the Effective Date; and
(d) does not assume any obligation or liability of the Outgoing Party under or in connection with the Agreements arising or accruing before the Effective Date.
2.1.2 On and from the Effective Date:
(a) the Continuing Party must comply with the Agreements on the basis that the Incoming Party has replaced the Outgoing Party under the Agreements;
(b) the Incoming Party is substituted for the Outgoing Party under the Agreements such that the Incoming Party is party to the Agreements instead of the Outgoing Party;
(c) each reference in the Agreements to the Outgoing Party is to be read and construed as if it were a reference to the Incoming Party; and
(d) any notices that are to be given to the Incoming Party under the Agreements must comply with the requirements of the Agreements and be delivered to the Incoming Party in accordance with clause 5.2.
2.2 Release
2.2.1 The Outgoing Party is not released from:
(a) any obligations or liabilities under or in connection with the Agreements; or
(b) any Claims, actions, demands, proceedings or liability that the Continuing Party may have, or but for this Deed might have had, against the Outgoing Party under or in connection with the Agreements,
arising or accruing before the Effective Date.
2.2.2 The Continuing Party unconditionally and irrevocably releases the Outgoing Party and its past and present directors, officers, employees and agents from:
(a) all obligations and liabilities under or in connection with the Agreements; and
(b) all Claims , actions, demands, proceedings or liability that the Continuing Party may have, or but for this Deed might have had, against the Outgoing Party under or in connection with the Agreements,
in each case arising or accruing on or after the Effective Date.
2.3 Indemnity
2.3.1 The Incoming Party indemnifies the Outgoing Party on demand against any Claims the Outgoing Party pays, or is liable for, under or in connection with the Agreements, arising or accruing on or after the Effective Date.
2.3.2 The Outgoing Party indemnifies the Incoming Party on demand against any Claims the Incoming Party pays, or is liable for, under or in connection with the Agreements arising or accruing before the Effective Date.
3. ACKNOWLEDGEMENTs
3.1.1 The parties acknowledge and agree that:
(a) except to the extent stated in this Deed, nothing in this Deed prejudices or adversely affects any right, power, authority, discretion or remedy arising under the Agreements and the parties otherwise reserve all of their rights under the Agreements; and
(b) the provisions of the Agreements shall, save as expressly amended in this Deed, continue in full force and effect.
3.1.2 The Continuing Party hereby:
(a) consents to the novation contemplated by this Deed;
(b) consents to the transfer of title to any equipment installed or used in the performance of any obligations under the Agreements from the Outgoing Party to the Incoming Party; and
(c) agrees and confirms that the novation contemplated by this Deed does not give rise to any breach, event of default or right to terminate under the Agreements.
4. WARRANTIES
4.1.1 The Continuing Party warrants to the Incoming Party that before the Effective Date it was not in breach of the Agreements.
4.1.2 The Continuing Party warrants to the Incoming Party that the party specified in this Deed as the Continuing Party is, at the Effective Date, the correct legal entity to be specified as the Continuing Party to ensure that the Agreements are legally valid and enforceable; and
4.1.3 the Continuing Party agrees to the bound by the Agreements before, on and from the Effective Date as if it was correctly specified in the Agreements as the counterparty on and from the time the Agreements were executed.
4.1.4 Each party warrants to each other party that:
(a) all necessary authorisations have been obtained to enable it to enter into this Deed;
(b) where a party is a body corporate, it is duly incorporated and validly exists under the laws of the place of its incorporation;
(c) it has full power and authority to enter into and perform its obligations under this Deed; and
(d) this Deed constitutes its legal, valid and binding obligations and is enforceable against it in accordance with its terms.
4.1.5 No party has entered into this Deed in reliance on any warranty made by another party, or any other person on behalf of a party, other than as set out in this Deed.
5. TERMINATION OF BPA
5.1.1 If the BPA terminates for any reason before Completion occurs:
(a) this Deed automatically terminates and is rendered void; and
(b) the Outgoing Party must promptly notify the Continuing Party that the BPA has terminated.
6. NOTICES AND OTHER COMMUNICATIONS
6.1 Form of notice
6.1.1 Each notice or other communication given under this Deed must be in writing and sent by email, personal delivery or by registered post to the addressee at the email address or postal address and marked for the attention of the person (if any), last notified for the purpose by the addressee to the other party or parties.
6.1.2 A notice sent by personal delivery or post must be signed by the party making it or (on that party’s behalf) by the solicitor for, or any attorney, director, secretary or authorised agent of, that party.
6.1.3 A notice sent by email must be in pdf or other format that is a scanned image of the original of the communication, including a signature, and be attached to an email that states that the attachment is a communication under this Deed.
6.2 Notice details
6.2.1 The initial notice details of each party are set out in Schedule 1.
6.2.2 A communication given in accordance with clause 6.1 is deemed to be received by the addressee:
(a) in the case of personal delivery, when delivered;
(b) in the case of email, the time specified in the record of the computer system from which the email was sent, if that computer system:
(i) has received an acknowledgement of receipt from the party to whom the email was intended to be sent; or
(ii) has not generated a record that the notice has failed to be transmitted;
(c) in the case of a letter posted by registered post to an Australian address, on the third (5th) Business Day after posting; and
(d) in the case of a letter posted by registered airmail to an address outside Australia, on the seventh (10th) Business Day after posting,
provided that any notice received or deemed received on a day that is not a working day or after 5.00 pm, it is taken to be received at 9.00 am on the next working day ("working day" meaning a day that is not a Saturday, Sunday or public holiday and on which banks are open for business generally, in the place to which the communication is posted, sent or delivered).
7. COUNTERPARTS
7.1 This Deed may be executed in any number of counterparts and by the different parties on separate counterparts, each of which when so executed and delivered shall together constitute one and the same instrument.
7.2 The parties agree that a counterpart of this Deed may be executed electronically, and each counterpart so signed will be treated as an original counterpart. Each party confirms that the use of electronic signatures to execute this Deed is a legally valid and binding method of execution. Each party who executes this Deed by using electronic signatures confirms that this method of signature is as conclusive of its intention to be bound by the Deed as if signed by manuscript signature.
8. GOVERNING LAW AND JURISDICTION
8.1 This Deed is governed by and is to be construed in accordance with the laws applicable in Victoria.
8.2 Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria and any courts that have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
9. COSTS
Each party must pay its own legal and other costs and expenses in relation to the preparation and execution of this Deed.
10. DUTY
10.1 Subject to the BPA, any duty (including related interest or penalties) payable in respect of this Deed or any instrument created in connection with it must be paid by the Incoming Party.
10.2 The Incoming Party undertakes to keep the Outgoing Party and Continuing Party indemnified against all liability relating to the duty, fines and penalties.
11. FURTHER ASSURANCES
Each party shall perform (or procure the performance of) all further acts and things and execute and deliver (or procure the execution and delivery of) such further documents as may be necessary or reasonably required by the other parties to give effect to this Deed and to perform its obligations under it.
12. VARIATIONS
This Deed may only be varied by a document in writing, signed by all the parties.
13. SEVERABILITY
Any provision of this Deed which is invalid in any jurisdiction must, in relation to that jurisdiction:
(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(b) be severed from this Deed in any other case,
without invalidating or affecting the remaining provisions of this Deed or the validity of that provision in any other jurisdiction
14. NO ASSIGNMENT
A party cannot assign or otherwise transfer the benefit of this Deed without the prior written consent of each other party.