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Broad Capital Acquisition Pty Ltd. – ‘S-4/A’ on 11/13/23 – ‘EX-10.13’

On:  Monday, 11/13/23, at 4:13pm ET   ·   Accession #:  1493152-23-40505   ·   File #:  333-273753

Previous ‘S-4’:  ‘S-4’ on 8/7/23   ·   Next:  ‘S-4/A’ on 1/16/24   ·   Latest:  ‘S-4/A’ on 5/1/24   ·   11 References:   By:  Broad Capital Acquisition Ltd. – Latest ‘S-4/A’ on 5/1/24 By:  Broad Capital Acquisition Ltd. – ‘S-4/A’ on 3/22/24 By:  Broad Capital Acquisition Ltd. – Next ‘S-4/A’ on 1/16/24 To:  Broad Capital Acquisition Ltd. – Previous ‘S-4’ on 8/7/23 To:  Broad Capital Acquisition Corp. – ‘8-K’ on 6/12/23 for 6/9/23 To:  Broad Capital Acquisition Corp. – ‘8-K’ on 1/24/23 for 1/18/23 To:  Broad Capital Acquisition Corp. – ‘8-K’ on 1/17/23 for 1/10/23 To:  Broad Capital Acquisition Corp. – ‘8-K’ on 1/14/22 for 1/10/22 To:  Broad Capital Acquisition Corp. – ‘S-1/A’ on 10/22/21 To:  Broad Capital Acquisition Corp. – ‘S-1’ on 8/19/21 To:  Broad Capital Acquisition Corp. – ‘DRS’ on 7/6/21 

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

11/13/23  Broad Capital Acq Pty Ltd.        S-4/A                 66:34M                                    M2 Compliance LLC/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-4/A       Pre-Effective Amendment to Registration Statement   HTML   9.91M 
                - Securities for a Merger                                        
 2: EX-10.10    Material Contract                                   HTML   2.91M 
 3: EX-10.11    Material Contract                                   HTML    147K 
 4: EX-10.12    Material Contract                                   HTML    740K 
 5: EX-10.12J   Material Contract                                   HTML     71K 
 6: EX-10.12K   Material Contract                                   HTML     43K 
 7: EX-10.13    Material Contract                                   HTML    407K 
 8: EX-10.14    Material Contract                                   HTML    663K 
 9: EX-10.15    Material Contract                                   HTML    184K 
10: EX-10.16    Material Contract                                   HTML    601K 
11: EX-10.17    Material Contract                                   HTML    333K 
12: EX-10.18    Material Contract                                   HTML    181K 
13: EX-10.19    Material Contract                                   HTML   1.67M 
14: EX-10.20    Material Contract                                   HTML    260K 
15: EX-10.20A   Material Contract                                   HTML     22K 
16: EX-10.21    Material Contract                                   HTML    352K 
17: EX-10.22    Material Contract                                   HTML    287K 
18: EX-10.23    Material Contract                                   HTML    206K 
19: EX-10.24    Material Contract                                   HTML    126K 
20: EX-10.25    Material Contract                                   HTML    208K 
21: EX-10.26    Material Contract                                   HTML    175K 
22: EX-10.27    Material Contract                                   HTML   1.36M 
23: EX-10.28    Material Contract                                   HTML   1.46M 
24: EX-10.29    Material Contract                                   HTML     67K 
25: EX-10.29A   Material Contract                                   HTML     48K 
26: EX-23.1     Consent of Expert or Counsel                        HTML     18K 
27: EX-23.2     Consent of Expert or Counsel                        HTML     19K 
28: EX-23.3     Consent of Expert or Counsel                        HTML     18K 
34: R1          Cover                                               HTML     50K 
35: R2          Balance Sheets                                      HTML    110K 
36: R3          Balance Sheets (Parenthetical)                      HTML     47K 
37: R4          Statements of Operations                            HTML     76K 
38: R5          Statements of Changes in Stockholders' Deficit      HTML     94K 
39: R6          Statements of Changes in Stockholders' Deficit      HTML     24K 
                (Parenthetical)                                                  
40: R7          Statements of Cash Flows                            HTML    103K 
41: R8          Description of Organization, Business Operations    HTML    132K 
42: R9          Summary of Significant Accounting Policies          HTML     90K 
43: R10         Initial Public Offering                             HTML     35K 
44: R11         Private Placement                                   HTML     36K 
45: R12         Related Party Transactions                          HTML     63K 
46: R13         Commitments and Contingencies                       HTML     44K 
47: R14         Stockholders? Deficit                               HTML     43K 
48: R15         Subsequent Events                                   HTML     39K 
49: R16         Summary of Significant Accounting Policies          HTML    114K 
                (Policies)                                                       
50: R17         Summary of Significant Accounting Policies          HTML     48K 
                (Tables)                                                         
51: R18         Description of Organization, Business Operations    HTML    140K 
                (Details Narrative)                                              
52: R19         Schedule of Income Tax Provision (Details)          HTML     36K 
53: R20         Schedule of Deferred Tax Assets and Liabilities     HTML     35K 
                (Details)                                                        
54: R21         Schedule of Reconciliation of Income Tax Rate       HTML     35K 
                (Details)                                                        
55: R22         Summary of Significant Accounting Policies          HTML     40K 
                (Details Narrative)                                              
56: R23         Initial Public Offering (Details Narrative)         HTML     44K 
57: R24         Private Placement (Details Narrative)               HTML     43K 
58: R25         Related Party Transactions (Details Narrative)      HTML    104K 
59: R26         Commitments and Contingencies (Details Narrative)   HTML     44K 
60: R27         Stockholders? Deficit (Details Narrative)           HTML     49K 
61: R28         Subsequent Events (Details Narrative)               HTML     47K 
64: XML         IDEA XML File -- Filing Summary                      XML     76K 
62: XML         XBRL Instance -- forms-4a_htm                        XML    964K 
63: EXCEL       IDEA Workbook of Financial Report Info              XLSX     90K 
30: EX-101.CAL  XBRL Calculations -- brac-20230630_cal               XML    100K 
31: EX-101.DEF  XBRL Definitions -- brac-20230630_def                XML    619K 
32: EX-101.LAB  XBRL Labels -- brac-20230630_lab                     XML    615K 
33: EX-101.PRE  XBRL Presentations -- brac-20230630_pre              XML    593K 
29: EX-101.SCH  XBRL Schema -- brac-20230630                         XSD     97K 
65: JSON        XBRL Instance as JSON Data -- MetaLinks              255±   384K 
66: ZIP         XBRL Zipped Folder -- 0001493152-23-040505-xbrl      Zip   3.45M 

Exhibit 10.13

Certain identified information has been excluded from the exhibit because it both:

[***] indicates that information has been redacted.

PARTNERS FOR GROWTH V, L.P.

1751 TIBURON BLVD.

TIBURON, CALIFORNIA 94920

UNITED STATES OF AMERICA

Openmarkets Group Limited (formerly known as Openmarkets Online Trading Pty Limited)

ACN 159 661 453

Openmarkets Australia Limited

ACN 090 472 012

Level 2, 451 Little Bourke Street

Melbourne, Victoria 3000

FACILITY LETTER OF OFFER

Partners for Growth V, L.P. (PFG) are keen to establish a strong working relationship with you and have structured a finance offer which we believe will meet your needs. We are pleased to offer the Facilities listed below.

The terms and conditions on which the Facilities are offered are set out in:

which together, comprise the Terms.

Terms used in this Letter of Offer are defined in clause 3.14 of this Letter of Offer, in the PFG Standard Terms and the Specific Facility Terms. A reference to a clause or schedule is a reference to a clause of, and schedule to, the Letter of Offer.

PFG’s obligation to provide any drawing under the Facilities is conditional on the Obligors accepting the Terms of the Facilities, satisfying each condition precedent set out in the Terms and executing all documents required by PFG in respect of the Facilities.

This offer is available for acceptance until close of business on the date which is 30 days after the date of the Letter of Offer, unless extended by us in writing.

To accept our offer, please sign and date the enclosed copy of the Letter of Offer on the Acceptance and Acknowledgement page, and return it to me at this office. In addition, we have included the following documents to be executed in connection with the Facilities and returned to us:

We may withdraw our offer at any time before you accept it. We may do this if, for example, we become aware of anything which, in our opinion, adversely alters the basis on which we made our offer.

For the avoidance of doubt, the Facilities pursuant to this letter and the terms as described herein do not come into effect until the Effective Date.

Thank you for the opportunity to provide the Facilities. Please feel free to call us with any queries in relation to the Facility Documents or any other products or services that we may provide.

Yours faithfully,

PARTNERS FOR GROWTH V, L.P.

SCHEDULE 1 - FACILITY TERMS

In addition to documents expressed to be Facility Documents in other Facility Documents, each of the following documents are Facility Documents for the purposes of the Facility/Facilities:

The Facilities set out below are only available to the Borrower pursuant to the Terms (including the relevant Specific Facility Terms and the PFG Standard Terms):

The Borrower must pay PFG each facility-specific fee listed in this Letter of Offer and in the PFG Standard Terms in addition to all interest and other sums payable to PFG all of which are not refundable.

Each of the following Securities secures (without limitation) all amounts payable under all Facilities and any guarantee or indemnity provided by an Obligor to PFG:

except to the extent that any Security listed in Schedule 2 of this Letter of Offer, additional Securities provided by an Obligor or Facility Terms expressly provides otherwise.

PFG’s obligation to subscribe for the Loan Notes or to provide any drawing under, or make available any Facility is conditional on the conditions precedent listed in the Facility Terms, Schedule 3 of this Letter of Offer and the PFG Standard Terms being met, in each case in form and substance satisfactory to PFG.

In addition to the conditions precedent set out in clause 3.5 (which also apply to the Loan), PFG’s obligation to advance Tranche 2 is conditional on the satisfaction of the following conditions precedent in each case in form and substance satisfactory to PFG:

The Borrower shall provide PFG with the following:

The Borrower shall at all times comply with the following financial covenants.

EBITDA Covenant

None.

Current Assets to Current Liabilities Covenant

The Borrower must ensure that, on the last day of each calendar month, the Group has a ratio of Unrestricted Cash plus Account Receivables to Current Liabilities of at least 0.8:1.0 for the period prior to completion of the Capital Raising and 1.0:1.0 for each month thereafter until the Final Redemption Date for the Facility as set out in this Letter of Offer.

This Current Assets to Current Liabilities Covenant must be tested and measured each month based on the Monthly management financial statements provided under clause 3.7 of this Letter of Offer.

For the purposes of this Letter of Offer:

Cash Burn Covenant

In the event that the Borrower fails to complete a Capital Raising of no less than $7,500,000 by 1 April 2022, the Borrower must ensure that the Cash Burn of the Borrower does not exceed the following amounts during the corresponding periods:

For the purposes of this Letter of Offer:

On or before the date which is 30 Business Days following the Revolving Date, the Borrower must:

Not later than 30 January 2022, the Borrower must complete a bridge financing in an aggregate principal amount of at least $1,000,000 and with a minimum term of at least 90 days, which financing must be subordinate in all respects to all financing provided by PFG, and which financing may only be repaid from the proceeds of the Capital Raising or otherwise refinanced from equity or otherwise with PFG’s consent and which financing is entered into subject to the Bridge Subordination Deed.

A failure by the Borrower to comply with any of its obligations under this clause 3.9 will result in an immediate Event of Default.

The Borrower represents and warrants that the information set forth in the Representations Letter is true and correct as at the Acceptance Date.

Insider Debt

All present and future Indebtedness of the Borrower to its officers, directors and shareholders (“Inside Debt”) shall, at all times, be subordinated to the Secured Moneys pursuant to a subordination agreement in form and substance satisfactory to PFG. The Borrower represents and warrants that there is no Inside Debt presently outstanding which is not subordinated to the Secured Moneys. Prior to incurring any Inside Debt in the future, the Borrower shall cause the person to whom such Inside Debt will be owed to execute and deliver to PFG a subordination deed in form and substance satisfactory to PFG.

Secured Note Debt

All present and future Indebtedness of the Borrower to the Secured Noteholders (“Secured Note Debt”) shall, at all times, be subordinated to the Secured Moneys pursuant to the Secured Note Subordination Deed in form and substance satisfactory to PFG. The Borrower represents and warrants that there is no Secured Note Debt presently outstanding which is not subordinated to the Secured Moneys. Prior to incurring any Secured Note Debt in the future, the Borrower shall cause the person to whom such Secured Note Debt will be owed to execute and deliver to PFG a subordination deed in form and substance satisfactory to PFG.

Unsecured Note Debt

All present and future Indebtedness of the Borrower (“Unsecured Note Debt”) shall, at all times, be subordinated to the Secured Moneys pursuant to subordination provisions in form and substance satisfactory to PFG. The Borrower represents and warrants that there is no Unsecured Note Debt presently outstanding which is not subordinated to the Secured Moneys. Prior to incurring any Unsecured Note Debt in the future, the Borrower shall cause the person to whom such Unsecured Note Debt will be owed to execute and deliver to PFG a subordination deed in form and substance satisfactory to PFG.

Cash Balance

The Borrower will maintain Unrestricted Cash at all times of at least at least AUD$5,500,000.

ASX Clear

The Borrower will maintain at all times at least at least AUD$5,000,000 of Cash or Cash Equivalents with ASX Clear as cash market margin.

The parties agree that the following additional Events of Default apply for the purposes of clause 13.1(x)(i) of the Standard Terms:

Application of Standard Terms

The PFG Standard Terms and any applicable Specific Terms apply to the Facilities. PFG acknowledges and agrees that the:

is, in each case, ‘Permitted Indebtedness’ for the purposes of the definition of Permitted Indebtedness under the PFG Standard Terms, provided in each case, that the quantum of such Indebtedness is, at any time, not greater than the quantum of such Indebtedness as at the Effective Date.

Capitalised terms used in this Letter of Offer that are not defined in this Letter of Offer, have the meaning ascribed to them in the PFG Standard Terms. The interpretation provisions of the PFG Standard Terms apply to this Letter of Offer.

In addition:

SCHEDULE 2 - SECURITY

SCHEDULE 3 - CONDITIONS PRECEDENT

The following is the list of items referred to in clause 3.5 of the Letter of Offer:

SCHEDULE 4 - COMPLIANCE CERTIFICATE

The undersigned authorized officer of the Borrower hereby certifies that in accordance with the Facility Letter of Offer between the Borrower, PFG and others dated on or around [insert date] (the “Letter of Offer”); (i) the Borrower is in compliance for the month and if applicable, quarter ending ____________ with all required reporting obligations in the Letter of Offer, except as detailed below; and (ii) there are no Defaults subsisting as at the date of this Compliance Certificate. Attached herewith are the required documents supporting the above certification (if any). The undersigned further certifies that the financial statements, information and schedules referred to below have been prepared in accordance with Australian Accounting Pronouncements and are consistent from one period to the next except as explained in an accompanying letter or footnotes. Terms defined in the Terms have the same meaning when used in this Compliance Certificate unless the context otherwise requires.

Please indicate compliance status by circling Yes/No under “Complies” column.

SCHEDULE 5 - BORROWING BASE CERTIFICATE

BORROWING BASE CERTIFICATE - [***]

========================================================================

The undersigned represents and warrants that: (1) the forgoing is true, complete and correct, (2) that the information reflected in this Borrowing Base Certificate complies with the applicable representations and warranties set forth in the Facility Documents, as amended, and (3) The undersigned affirms that the last Compliance Certificate dated ___________________ has been delivered to PFG not longer than thirty (30) days before the date of this Borrowing Base Certificate.

SCHEDULE 6 - PRE-FUNDING CERTIFICATE

I, ________________________________, am a director of:

collectively, the “Obligors”.

I refer to the Letter of Offer dated on or around the date of this certificate between PFG and the Obligors (“Letter of Offer”).

A term defined in the Letter of Offer has the same meaning when used in this certificate. I certify as follows:

Attached to this certificate are true, complete and up-to-date copies of each of the following:

There are no other material consents, authorisations, approvals, declarations or filings necessary or desirable to be obtained by the Obligors in connection with the execution, delivery, performance, validity or enforceability of the Facility Documents to which they are a party.

The power of attorney referred to in paragraph 1(b) is in full force and effect and have not been amended, modified or revoked.]

At the time of execution of the Facility Documents, each Obligor is solvent and there are reasonable grounds to expect that they will not become insolvent by acting so as to give effect to any transaction contemplated by the Facility Documents.

The following signatures are the true signatures of the authorized officers who are authorized signatories of each Obligor:

EXHIBIT A TO LETTER OF OFFER - REPRESENTATIONS LETTER

[following pages]

Acceptance and Acknowledgement

Acceptance of the Letter of Offer

The Obligors accept PFG’s offer to provide the Facilities on the Terms and acknowledge receipt of the PFG Standard Terms and the Specific Facility Terms.

By signing this Letter of Offer, each Obligor:

Authority to date and complete

Each Obligor agrees that PFG may fill in any blanks in the Letter of Offer and any other Facility Document including any date of signing.

Representations and warranties

Each Obligor represents and warrants, on the Acceptance Date of the Letter of Offer and at the Effective Date, in relation to itself that:

with respect to the facts and circumstances existing as at that date.

Please read this Letter of Offer, the PFG Standard Terms and the Specific Facility Terms carefully before signing this letter.

EXECUTED as an AGREEMENT

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Dates Referenced Herein

This ‘S-4/A’ Filing		Date		Other Filings
Filed on:		11/13/23		None on these Dates
		5/10/22
				List all Filings

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3 Subsequent Filings that Reference this Filing

As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 5/01/24 Broad Capital Acquisition Ltd. S-4/A 42:19M M2 Compliance LLC/FA 3/22/24 Broad Capital Acquisition Ltd. S-4/A 44:17M M2 Compliance LLC/FA 1/16/24 Broad Capital Acq Pty Ltd. S-4/A 65:19M M2 Compliance LLC/FA

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8 Previous Filings that this Filing References

As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 8/07/23 Broad Capital Acq Pty Ltd. S-4 46:21M M2 Compliance LLC/FA 6/12/23 Broad Capital Acquisition Corp. 8-K:2,5,9 6/09/23 13:334K M2 Compliance LLC/FA 1/24/23 Broad Capital Acquisition Corp. 8-K:1,9 1/18/23 12:1.3M M2 Compliance LLC/FA 1/17/23 Broad Capital Acquisition Corp. 8-K:1,3,5,7 1/10/23 14:357K M2 Compliance LLC/FA 1/14/22 Broad Capital Acquisition Corp. 8-K:1,3,5,8 1/10/22 11:991K M2 Compliance LLC/FA 10/22/21 Broad Capital Acquisition Corp. S-1/A 3:2.2M M2 Compliance LLC/FA 8/19/21 Broad Capital Acquisition Corp. S-1 25:3.4M M2 Compliance LLC/FA 7/06/21 Broad Capital Acquisition Corp. DRS¶ 8/19/21 8:3.1M M2 Compliance LLC/FA

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Filing Submission 0001493152-23-040505   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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