Future Receivables Sale and Purchase Agreement dated as of July 20, 2022 by and among MCA Westover Hills Operating Company LLC (MCA Westover) and Fox Capital Group, Inc., including the Guaranty of Performance dated as of even date by James Walesa in favor of such purchaser

EX-10.1 2 ex10-1.htm

Exhibit 10.1

Fox Capital Group, Inc.

P: (800) 895-4424 | F: 866 ###-###-#### | ***@***

FUTURE RECEIVABLES SALE AND PURCHASE AGREEMENT

This Agreement (“Agreement”) dated July 20, 2022, is made between Fox Capital Group, Inc. (“FCG”) and the following merchant(s) (hereinafter, “Merchant”), owner (s) (“Owner”) and guarantor(s) (“Guarantor”):

Legal Name of Merchant(s): MCA WESTOVER HILLS OPERATING COMPANY, LLC and entities appearing on “Exhibit D”

D/B/A:

Form of Entity: LLC

State of Organization: TX

EIN #:

Physical Address: 10910 TOWN CENTER DR, SAN ANTONIO, TX, 78251

Mailing Address: 8800 VILLAGE DR, SUITE 201, SAN ANTONIO, TX, 78217

“Purchase Price”		“Purchased Percentage”			“Purchased Amount”		“Daily Remittance”
$	85,000.00		20.0	%	$	120,700.00	$	754.38
								[Per Addendum: Weekly Remittance $3,771.90]

MCA Westover Hills Operating Company, LLC

By:	/s/ James Thaddeus Walesa
Name:	James Thaddeus Walesa
Title:	CEO
Business Phone:

OWNER/GUARANTOR #1

By:	/s/ James Thaddeus Walesa
Name:	JAMES THADDEUS WALESA
SSN:
Email:
Phone:
Address:

Subject to the Terms and Conditions below (“Terms”), Merchant hereby sells, assigns, and transfers to FCG (making FCG the absolute owner) in consideration of the Purchase Price specified above, the Purchased Percentage of all of Merchant’s future accounts, receivables, contract rights and other entitlements arising from or relating to the payment of monies from Merchant’s customers, vendees and/ or other third-party payors (including all payments made by cash, check, credit card, debit card, electronic payment application, electronic transfer or other form of monetary payment in the ordinary course of the Merchant’s business for the payments due to Merchant as a result of Merchant’s sale of goods and/or services (the “Receipts”)), until the entire Purchased Amount has been delivered by or on behalf of Merchant to FCG. This sale of Receipts to FCG is made without recourse against Merchant or any Guarantors, except as specifically set forth in this Agreement. In consideration of the sale by Merchant to FCG of the Receipts, FCG agrees to pay to Merchant the Purchase Price (reduced by any applicable fees), which shall be delivered to Merchant following Merchant’s execution of this Agreement. FCG’s payment of the Purchase Price (minus any applicable fees) shall be deemed the acceptance and performance by FCG of this Agreement.

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Fox Capital Group, Inc.

P: (800) 895-4424 | F: 866 ###-###-#### | ***@***

THIS IS NOT A LOAN. Merchant is selling a portion of a future revenue stream to FCG at a discount, not borrowing money from FCG. There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by FCG. In lieu of calculating the value of the Purchased Percentage of the Receipts each day, Merchant shall remit the Daily Remittance, which is a good faith approximation by FCG and Merchant of (a) the Purchased Percentage multiplied by (b) the gross revenues of Merchant during the previous calendar month divided by (c) the number of business days in the previous calendar month. The initial Daily Remittance shall be as described above. Merchant going bankrupt or going out of business, or experiencing a slowdown in business or a delay in collecting its receivables, in and of themselves, do not constitute a breach of this Agreement. Under such circumstances, the Daily Remittance shall be subject to reconciliation or adjustment as set forth in Paragraph 1.4 of the Terms and Conditions provided Merchant is not otherwise in default of this Agreement and makes a reconciliation request. FCG is entering this Agreement knowing the risks that Merchant’s business may slow down or fail. FCG assumes these risks based on Merchant’s, each Owner’s and each Guarantor’s representations, warranties, and covenants in this Agreement, which are designed to give FCG a reasonable and fair opportunity to receive the benefit of its bargain. Merchant and each Guarantor are guaranteeing performance of the terms of this Agreement and are not guaranteeing absolute payment of the Purchased Amount. Nothing in this Agreement to the contrary, Merchant shall operate its business in good faith and do nothing to intentionally cause the diminution or diversion of its Receipts.

So long as Merchant is generating Receipts and has not requested a reconciliation, FCG will debit the Daily Remittance each business day from one depositing bank account, which account must be acceptable to, and pre-approved by FCG (the “Account”), into which Merchant and Merchant’s customers shall exclusively remit all Receipts (regardless of the method by which Merchant receives them), until such time as FCG receives remittance in full of the Purchased Amount (except in the case that Merchant ceases to receive Receipts because it goes out of business or goes bankrupt in the regular course of its business). Merchant hereby authorizes FCG to ACH debit the Daily Remittance from the Account on each business day (i.e., Monday through Friday but not bank holidays), and to ACH debit the Daily Remittance twice on the first business day following a bank holiday that falls on Monday through Friday. Merchant understands that it is responsible for ensuring that an amount sufficient to cover the Daily Remittance to be debited by FCG remains in the Account. In the event that there will be insufficient funds in the Account such that the debit of the Daily Remittance will not be honored by Merchant’s bank, Merchant shall give 24 hours’ written notice (or other reasonable notice as necessitated by the circumstances) to FCG such that FCG may be able to cancel any pending debits, and shall promptly provide to FCG any requested documentation to verify Merchant’s revenues and account balances and allow for daily monitoring of its bank accounts. Provided there is no other Event of Default (as defined in Section 3.1 of the Terms), Merchant will not be held in default if timely notice of insufficient funds is provided and Merchant cooperates in providing information requested. Merchant will be held responsible for any fees incurred by FCG resulting from a rejected ACH attempt (unless timely notice of insufficient funds is provided to FCG) or caused by another Event of Default. FCG is not responsible for any overdrafts or rejected transactions that may result from FCG’s ACH debiting the Daily Remittance under the terms of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other agreement between FCG and Merchant, upon the occurrence of a default under Sections 1.11 or 3.1 of the Terms, FCG shall be entitled to immediately collect any outstanding amount of the Purchased Amount as damages.

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Fox Capital Group, Inc.

P: (800) 895-4424 | F: 866 ###-###-#### | ***@***

FEE SCHEDULE

THE FOLLOWING “FEE SCHEDULE” INCLUDES ALL FEES AND LIQUIDATED DAMAGES APPLICABLE UNDER THIS AGREEMENT (OTHER THAN ATTORNEYS’ FEES AND COLLECTIONS COSTS ASSESSED IN AN EVENT OF DEFAULT):

CLOSING COSTS

A.	Origination Fee:	$ 3,400.00	to cover cost of origination and ACH Setup.*

B.	Underwriting Fee:	$ 295.00	to cover underwriting and related expenses.*

C.	Processing Fee:	$ 0.00	to cover cost of origination and ACH Setup.*

APPLICABLE FEES

D.	Wire Fee: Each Merchant shall receive their funding electronically to their designated bank account and will be charged $50 for a federal wire or $0 for a bank ACH. *

E.	Bank Change Fee: $150 when Merchant requires a change of the Account, which requires changes to FCG’s records and systems.

F.	NSF Fee (Standard): $50 (each) to cover bank charges for Not Sufficient Funds in Merchant’s bank account unless Merchant provides timely notice. A default may be declared after three (3) or more occurrences.

G.	Stacking Fee: For each occurrence, $5,000.00 or 10% of the balance of the undelivered Purchased Amount at the time of breach, whichever is greater, to be charged if Merchant has sold or sells any future receipts to, or has obtained or obtains a loan or advance secured by any future receipts from any person or entity without FCG’s prior written consent, due to increased risk profile.**

H.	Unauthorized Account Fee: $5,000 or 10% of the balance of the undelivered Purchased Amount at the time of breach, whichever is greater, to be charged if Merchant blocks any one of FCG’s ACH debits of the Account, simultaneously uses multiple bank accounts or credit card processors to deposit or process its Receipts, or prevents FCG from electronic monitoring of the Account, or otherwise violates paragraph 1.5 of the Agreement due to increased risk profile.**

I.	Court costs, collection agency fees, attorneys’ fees, expert fees, other related collections costs and costs for indemnification, as provided in the Terms of the Agreement.

All fees and/or liquidated damage amounts (i) may be added to the balance owed to FCG under the Agreement (if not already paid out of the Purchase Price), and (ii) are in addition to FCG’s rights and remedies under the Agreement, including the right to declare Merchant in default.

Total fees of $3,695.00 shall be deducted from the Purchase Price prior to funding. Merchant will receive a net purchase price in the amount of $81,305.00 at the time of delivery by FCG.

* These fees will be paid out of the Purchase Price/funding amount.

** Merchant acknowledges these fees as liquidated damages, and not as penalties, and reasonable estimates of the damages likely to be incurred by FCG in the event of Merchant’s breach of the Agreement.

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FOR MCA WESTOVER HILLS OPERATING COMPANY, LLC		OWNER/GUARANTOR #1

By:	/s/ James Thaddeus Walesa	By:	/s/ James Thaddeus Walesa
Name:	JAMES THADDEUS WALESA	Name:	JAMES THADDEUS WALESA
Title:	CEO

Fox Capital Group, Inc.

By:
Name:
Title:

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Fox Capital Group, Inc.

P: (800) 895-4424 | F: 866 ###-###-#### | ***@***

ADDENDUM TO SECURED MERCHANT AGREEMENT FOR WEEKLY REMITTANCE

WHEREAS Fox Capital Group, Inc. (“FCG”) and MCA WESTOVER HILLS OPERATING COMPANY, LLC (“Merchant”) are parties to the Secured Merchant Agreement, dated July 20, 2022 (the “Agreement”); and

WHEREAS, Merchant requested that for Merchant’s convenience FCG make weekly debits toward the Purchased Amount instead of debits of the Daily Remittance each business day, and FCG grants Merchant’s request as a courtesy to Merchant;

NOW, THEREFORE, it is agreed as follows:

	1.	Definitions. Except as otherwise defined in this Addendum, all capitalized terms have the same meaning as in the Agreement. The Term “Weekly Remittance” means the following amount, $3,771.90, which is a good faith approximation of five times the Daily Remittance. The term “Payment Day” means Monday, the day of the week on which payment of the Weekly Remittance is due.

	2.	Weekly Remittance. Without modification or waiver of any term of the Agreement and as a courtesy to Merchant, rather than debiting the Daily Remittance each business day, FCG will debit the Weekly Remittance from the Account once each week on every Payment Day that is not a bank holiday until such time as FCG receives payment in full of the Purchased Amount or until FCG elects to revoke or cancel this Addendum. If any Payment Day falls on a bank holiday, FCG will debit the Weekly Remittance on the next business day following that Payment Day. If the next business day falls during the next week, FCG will debit the Weekly Remittance for both weeks during that following week and which will result in FCG debiting twice in a week. By way of example only, if the Payment Day is Friday and the next business day falls the following Monday, FCG will debit the Weekly Remittance on Monday and Friday of that following week. Nothing herein prevents an adjustment of the Daily Remittance under paragraph 1.4 of the Agreement, in which case the Weekly Remittance will be adjusted accordingly.

	3.	Revocation. FCG in its sole and absolute discretion may revoke or cancel this Addendum at any time and for any reason upon 24 hours’ notice by email to the Merchant. Upon revocation or cancellation of this Addendum, FCG may resume regular debiting of the Daily Remittance in the manner set forth in the Agreement. If Merchant is aware that there will be insufficient funds in the Account such that the debit of the Daily Remittance will not be honored by Merchant’s bank, Merchant shall notify FCG within 18 hours of receiving FCG’s email notice.

FOR MCA WESTOVER HILLS OPERATING COMPANY, LLC		AGREED AND ACCEPTED:

		FOR FOX CAPITAL GROUP, INC.

Signature:	/s/ James Thaddeus Wales	By:
Name:	JAMES THADDEUS WALESA	Name:
Title:	CEO	Title:

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EXHIBIT D

List of Additional Entities Included in the Definition of the Term “Merchant” That Have Sold Future Receipts and Granted FCG a Blanket Security Interest

FLASH PARTNERS, LLC

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