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Page 1: UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF ...upshotservices.s3.amazonaws.com/files/bc8d3927... · qb\55554109.1 united states bankruptcy court southern district of indiana

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

In re: ) ) SCOTTY’S HOLDINGS, LLC, ) Case No. 18-09243-JJG-11 ) (Jointly Administered) ) Debtor(s).1 )

NOTICE OF LODGING PROPOSED FINAL ORDERS IN ADVANCE OF HEARING TO BE HELD ON JANUARY 17, 2019

Scotty’s Holdings, LLC, and its affiliated debtors and debtors-in-possession (collectively,

the “Debtors”) in the above-captioned jointly administered Chapter 11 cases hereby submit in

advance of the hearing scheduled to be held on January 17, 2019 at 1:30 P.M. (EST) the following

proposed final orders:

• Final Order Granting Debtors’ First Day Motion for Interim and Final Orders (I)

Prohibiting Utility Companies from Altering, Refusing, or Discontinuing Utility Services;

and (II) Deeming Utility Companies Adequately Assured of Future Payment attached

hereto as Exhibit A and related to Docket No. 14;

• Final Order Granting Debtors’ First Day Motion to Authorize Redemption of Prepetition

Customer Gift Cards attached hereto as Exhibit B and related to Docket No. 15; and

1 The Debtors include Scotty's Holdings, LLC, Case No. 18-09243-JJG-11 (the "Lead Case"); A Pots & Pans Production, LLC, Case No. 18-09244-JJG-11; Scotty's Thr3e Wise Men Brewing Company, LLC, Case No. 18-09245-JJG-11; Scotty's Brewhouse, LLC, Case No. 18-09246-JJG-11; Scotty's Brewhouse Bloomington, LLC, Case No. 18-09248-JJG-11; Scott's Brewhouse West Lafayette, LLC, Case No. 18-09250-JJG-11; Scotty's Indianapolis, LLC, Case No. 18-09251-JJG-11; Scotty's Brewhouse Downtown Indianapolis, Case No. 18-09252-JJG-11; Scotty's Brewhouse Mishawaka, LLC, Case No. 18-09253-JJG-11; Scotty's Brewhouse Fort Wayne, LLC, Case No. 18-09255-JJG-11; Scotty's Brewhouse Carmel, LLC, Case No. 18-09256-JJG-11; Scotty's Brewhouse Butler, LLC, Case No. 18-09257-JJG-11; and Scotty's Brewhouse Waco, LLC, Case No. 18-09258-JJG-11.

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• Final Order Authorizing and Approving Rejection of Certain Executory Contracts and

Unexpired Leases attached hereto as Exhibit C and related to Docket No. 20.

RESPECTFULLY SUBMITTED this 7th day of January, 2019. QUARLES & BRADY LLP By: /s/ Isaac M. Gabriel Lucy R. Dollens (Bar No. 23547-49) Isaac M. Gabriel (AZ Bar No. 021780) Admitted Pro Hac Vice 135 N. Pennsylvania St., Suite 2400 Indianapolis, Indiana 46204 Telephone: (317) 957-5000 Facsimile: (317) 957-5010 [email protected] [email protected] Proposed Special Counsel for Debtors

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CERTIFICATE OF SERVICE

I hereby certify that on January 7, 2019, a copy of the foregoing Notice of Lodging Proposed Final Orders in Advance of Hearing to be Held on January 17, 2019 was filed electronically. Notice of this filing will be sent to the following party/parties through the Court’s Electronic Case Filing System. Party/Parties may access this filing through the Court’s system. U.S. Trustee [email protected] Harrison E. Strauss [email protected]; [email protected] Ronald J. Moore [email protected] John J. Allman [email protected]; [email protected] Jason R. Burke [email protected]; [email protected] Christopher C. Hagenow [email protected]; [email protected] Aaron E. Davis [email protected]; [email protected]; [email protected] Anthony J. Jost [email protected]; [email protected]; [email protected] Harley K. Means [email protected]; [email protected]; [email protected]; [email protected] Jay P. Kennedy [email protected]; [email protected]; [email protected]; [email protected] Craig S. Ganz [email protected] John R. Humphrey [email protected]; [email protected] Meredith R. Theisen [email protected]; [email protected]; [email protected] Deborah Caruso [email protected]; [email protected]; [email protected]; [email protected] John M. Mead [email protected]; [email protected] Jeffrey A. Hokanson [email protected]; [email protected] John Cannizzaro [email protected]; [email protected] Amanda K. Quick [email protected]; [email protected] Mary J. Fassett [email protected] Frederick Hyman [email protected] Jeffrey M. Hester [email protected]; [email protected] /s/ Isaac M. Gabriel Isaac M. Gabriel

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Exhibit "A"

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

In re: ) ) SCOTTY’S HOLDINGS, LLC, ) Case No. 18-09243-JJG-11 ) (Jointly Administered) ) Debtor(s).1 )

FINAL ORDER GRANTING DEBTORS’ FIRST DAY MOTION FOR INTERIM AND FINAL ORDERS (I) PROHIBITING UTILITY COMPANIES FROM ALTERING, REFUSING, OR DISCONTINUING UTILITY SERVICES; AND (II) DEEMING UTILITY COMPANIES ADEQUATELY ASSURED OF FUTURE PAYMENT

This matter came before the Court on Debtors’ First Day Motion for Interim and Final

Orders (I) Prohibiting Utility Companies from Altering, Refusing, or Discontinuing Utility

1 The Debtors include Scotty's Holdings, LLC, Case No. 18-09243-JJG-11 (the "Lead Case"); A Pots & Pans Production, LLC, Case No. 18-09244-JJG-11; Scotty's Thr3e Wise Men Brewing Company, LLC, Case No. 18-09245-JJG-11; Scotty's Brewhouse, LLC, Case No. 18-09246-JJG-11; Scotty's Brewhouse Bloomington, LLC, Case No. 18-09248-JJG-11; Scott's Brewhouse West Lafayette, LLC, Case No. 18-09250-JJG-11; Scotty's Indianapolis, LLC, Case No. 18-09251-JJG-11; Scotty's Brewhouse Downtown Indianapolis, LLC Case No. 18-09252-JJG-11; Scotty's Brewhouse Mishawaka, LLC, Case No. 18-09253-JJG-11; Scotty's Brewhouse Fort Wayne, LLC, Case No. 18-09255-JJG-11; Scotty's Brewhouse Carmel, LLC, Case No. 18-09256-JJG-11; Scotty's Brewhouse Butler, LLC, Case No. 18-09257-JJG-11; and Scotty's Brewhouse Waco, LLC, Case No. 18-09258-JJG-11.

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Services; and (II) Deeming Utility Companies Adequately Assured of Future Payment (the

“Motion”) [Dkt. No. 14] filed by Scotty’s Holdings, LLC, and its affiliated debtors (the "Debtors");

the Court having entered its Interim Order Granting Debtors’ First Day Motion for Interim and

Final Orders (I) Prohibiting Utility Companies from Altering, Refusing, or Discontinuing Utility

Services; and (II) Deeming Utility Companies Adequately Assured of Future Payment on

December 18, 2018 [Dkt. No. 62] (the "Interim Order"); notice of the Motion and the Interim Order

being sufficient under the circumstances; no objections having been raised to the Motion or the

Interim Order; and the Court, having considered the Motion, the Declaration of Berekk Blackwell

[Dkt. No. 4], and the entire record before the Court, finds that the relief requested should be granted

on a final basis.

IT IS ORDERED as follows:

1. The Motion is GRANTED.

2. No company listed on Exhibit 1 hereto (each, a "Utility Company") may (a) alter,

refuse, terminate, or discontinue utility services to, or discriminate against, the Debtors or any of

them on the basis of the commencement of these chapter 11 cases or on account of outstanding

prepetition invoices or (b) require additional assurance of payment, other than: (x) the deposit

previously, post-petition, paid by the Debtors to each Utility Company in an amount equal to fifty

percent (50%) of the applicable Debtor's average monthly utility payment to such Utility Company

(the "Utility Deposit") in the amounts stated on Exhibit 1 hereto, or (y) any other assurance

previously, post-petition, agreed and provided between a Debtor and a Utility Company pursuant

to the Interim Order and the procedures set forth in section 366 of the Bankruptcy Code (the

"Alternative Assurance").

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3. The Utility Deposit or Alternative Assurance, as applicable, shall constitute

adequate assurance of future payment to the Utility Companies (the “Adequate Assurance”).

4. Nothing in this Order (a) is intended or shall be deemed to constitute an assumption

of any agreement pursuant to section 365 of the Bankruptcy Code or an admission as to the validity

of any claim against the Debtors or their estates; (b) shall impair, prejudice, waive, or otherwise

affect the rights of the Debtors or their estates with respect to the validity, priority, or amount of

any claim against the Debtors or their estates; (c) shall impair, prejudice, waive, or otherwise affect

the rights of the Debtors or their estates with respect to any and all claims or causes of action

against a Utility Company; or (d) shall be construed as a promise to pay a claim.

5. Nothing in this Order is intended or shall be deemed to constitute a finding that any

entity is or is not a Utility Company hereunder or under section 366 of the Bankruptcy Code,

whether or not such entity is listed in or is served with a copy of this Order, the Interim Order, or

the Motion.

6. Notwithstanding anything to the contrary contained herein, any payment made or

to be made under this Order and the Interim Order, any authorization contained in this Order and

the Interim Order, or any claim for which payment is authorized hereunder, shall be subject to the

requirements imposed on the Debtors under any orders of this Court approving any debtor in

possession financing for, or any use of cash collateral by, the Debtors, and any documents

providing for such debtor in possession financing.

7. The Debtors are authorized to take any and all actions necessary to effectuate the

relief granted herein.

8. Notwithstanding any applicability of Bankruptcy Rule 6004(h), the terms and

conditions of this Order shall be effective and enforceable immediately upon its entry.

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9. All time periods referenced in this Order shall be calculated in accordance with

Bankruptcy Rule 9006(a).

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EXHIBIT 1

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas Vectren Energy Yes $906.00 $453.00Electric Duke Energy Yes $4,855.00 $2,427.50Telephone/Internet/Cable Comcast Yes $310.00 $155.00Water Indiana American Water Yes $573.00 $286.50Wastewater City of West Lafayette Yes $792.00 $396.00

SCOTTY'S BREWHOUSE WEST LAFAYETTE, LLC

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas Citizens Energy Yes $380.00 $190.00Electric Indiana Power & Light Yes $4,883.00 $2,441.50Telephone/Internet/ Cable Comcast Yes $360.00 $180.00Cable & TV DIRECTV Yes $2,876.00 $1,438.00Water/Sewage Citizens Energy Yes $1,298.00 $649.00

SCOTTY'S INDIANAPOLIS, LLC

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas Citizens Energy Yes $142.00 $71.00Natural Gas CIMA Energy Yes $2,995.00 $1,497.50Electric IPL Yes $536.00 $268.00Telephone Verizon Wireless Yes $1,412.00 $706.00Telephone/Internet Axia Technologies Yes $11,165.00 $5,582.50Internet/Cable & TV Comcast Yes $221.00 $110.50Waste Management Republic Services Yes $206.00 $103.00

A POTS & PANS PRODUCTION, LLC

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas Citizens Energy Yes $292.00 $146.00Electric IPL Yes $5,323.00 $2,661.50Telephone/Internet Bright House Networks Yes $135.00 $67.50Cable & TV DIRECTV Yes $515.00 $257.50Water/Sewage Citizens Energy Yes $1,436.00 $718.00

SCOTTY'S THR3E WISE MEN BREWING COMPANY, LLC

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas Vectren Energy Yes $806.00 $403.00Electric Duke Energy Yes $4,527.00 $2,263.50Telephone/Internet Comcast Yes $121.00 $60.50Cable & TV DIRECTV Yes $1,883.00 $941.50

SCOTTY'S BREWHOUSE BLOOMINGTON, LLC

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas NIPSCO Yes $1,320.00 $660.00Electric/Water/Sewage Mishawaka Utilities Yes $5,227.00 $2,613.50Telephone/Internet Comcast Yes $225.00 $112.50Cable & TV Comcast Yes $330.00 $165.00Cable & TV DIRECTV Yes $2,185.00 $1,092.50

SCOTTY'S BREWHOUSE MISHAWAKA, LLC

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas NIPSCO Yes $1,109.00 $554.50Electric Indiana Michigan Power (AEP) Yes $3,036.00 $1,518.00Telephone/Internet Comcast Yes $231.00 $115.50Cable & TV DIRECTV Yes $2,054.00 $1,027.00Water/Sewage City Utilities No $297.00 $148.50

SCOTTY'S BREWHOUSE FORT WAYNE, LLC

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Utility Company Current? Monthly Average Utility Deposit (50% Monthly Average)Natural Gas Citizens Energy Yes $377.00 $188.50Telephone/Internet/Cable Bright House Networks Yes $163.00 $81.50Cable & TV DIRECTV Yes $2,114.00 $1,057.00

SCOTTY'S BREWHOUSE BUTLER, LLC

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Exhibit "B"

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

In re: ) ) SCOTTY’S HOLDINGS, LLC, ) Case No. 18-09243-JJG-11 ) (Jointly Administered) ) Debtor(s).1 )

FINAL ORDER GRANTING DEBTORS’ FIRST DAY MOTION TO AUTHORIZE REDEMPTION OF PREPETITION CUSTOMER GIFT CARDS

This matter came before the Court on Debtors’ First Day Motion to Authorize Redemption

of Prepetition Customer Gift Cards (the “Motion”) filed by Scotty’s Holdings, LLC, and its

affiliated debtors (the "Debtors"); and the Court having entered an order granting the Motion on

1 The Debtors include Scotty's Holdings, LLC, Case No. 18-09243-JJG-11 (the "Lead Case"); A Pots & Pans Production, LLC, Case No. 18-09244-JJG-11; Scotty's Thr3e Wise Men Brewing Company, LLC, Case No. 18-09245-JJG-11; Scotty's Brewhouse, LLC, Case No. 18-09246-JJG-11; Scotty's Brewhouse Bloomington, LLC, Case No. 18-09248-JJG-11; Scott's Brewhouse West Lafayette, LLC, Case No. 18-09250-JJG-11; Scotty's Indianapolis, LLC, Case No. 18-09251-JJG-11; Scotty's Brewhouse Downtown Indianapolis, LLC, Case No. 18-09252-JJG-11; Scotty's Brewhouse Mishawaka, LLC, Case No. 18-09253-JJG-11; Scotty's Brewhouse Fort Wayne, LLC, Case No. 18-09255-JJG-11; Scotty's Brewhouse Carmel, LLC, Case No. 18-09256-JJG-11; Scotty's Brewhouse Butler, LLC, Case No. 18-09257-JJG-11; and Scotty's Brewhouse Waco, LLC, Case No. 18-09258-JJG-11.

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an interim basis on December 18, 2018 (Docket No. 63); and upon the record of the final hearing

on the Motion; and the Court finding that sufficient notice of the Motion and of the final hearing

thereon has been given to all entities entitled thereto and that no other notice is required; and there

being no objections filed to the Motion or the Interim Order; and the Court, having considered the

Motion, and the entire record before the Court, finds that the relief requested should be granted on

a final basis.

IT IS ORDERED as follows:

1. The Motion is GRANTED on a final basis;

2. The Debtors are authorized, but not directed, to, in their discretion, maintain their

gift card sales and continue their honoring of gift cards, including without limitation gift cards

purchased pre-petition, in the ordinary course of business, provided, however, that Debtors shall

not honor or redeem pre-petition gift card obligations that exceed the dollar amount of two

thousand, eight hundred and fifty ($2,850) for any one individual;

3. All pre-petition priority claims represented by gift cards redeemed on or after the

date of the filing of Debtors' voluntary petitions for relief on December 11, 2018 are hereby

allowed on a final basis;

4. The relief granted herein shall be effective nunc pro tunc to the filing of Debtors'

voluntary petitions for relief on December 11, 2018.

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Exhibit "C"

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

In re: ) ) SCOTTY’S HOLDINGS, LLC, ) Case No. 18-09243-JJG-11 ) ) (Jointly Administered) Debtor(s).1 )

FINAL ORDER AUTHORIZING AND APPROVING REJECTION OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES

Upon the Motion (the "Motion"; capitalized terms used but not defined herein shall have

the same meanings ascribed to them in the Motion) of the above-captioned debtors and debtors in

possession (collectively, the "Debtors") for entry of an order (this "Order") authorizing and

approving the rejection of certain unexpired leases of nonresidential real property; and upon the

1 The Debtors include Scotty's Holdings, LLC, Case No. 18-09243-JJG-11 (the "Lead Case"); A Pots & Pans Production, LLC, Case No. 18-09244-JJG-11; Scotty's Thr3e Wise Men Brewing Company, LLC, Case No. 18-09245-JJG-11; Scotty's Brewhouse, LLC, Case No. 18-09246-JJG-11; Scotty's Brewhouse Bloomington, LLC, Case No. 18-09248-JJG-11; Scott's Brewhouse West Lafayette, LLC, Case No. 18-09250-JJG-11; Scotty's Indianapolis, LLC, Case No. 18-09251-JJG-11; Scotty's Brewhouse Downtown Indianapolis, LLC, Case No. 18-09252-JJG-11; Scotty's Brewhouse Mishawaka, LLC, Case No. 18-09253-JJG-11; Scotty's Brewhouse Fort Wayne, LLC, Case No. 18-09255-JJG-11; Scotty's Brewhouse Carmel, LLC, Case No. 18-09256-JJG-11; Scotty's Brewhouse Butler, LLC, Case No. 18-09257-JJG-11; and Scotty's Brewhouse Waco, LLC, Case No. 18-09258-JJG-11.

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First-Day Declaration; and this Court having entered an order granting the Motion on an interim

basis on January 2, 2019 (Docket No. 97); and upon the record of the final hearing on the Motion;

and this Court having jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and

S.D.Ind. L.R. 83-8(a) of the United States District Court for the Southern District of Indiana; and

this Court having found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this

Court being able to issue a final order consistent with Article III of the United States Constitution;

and this Court having found that venue of this proceeding and the Motion in this District is proper

pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court finding that sufficient notice of the Motion

and of the final hearing thereon has been given to all entities entitled thereto and that no other

notice is required; and this Court having found that the relief requested by the Motion represents

an appropriate exercise of the Debtors' business judgment and is in the best interests of the Debtors'

estates, their creditors, and other parties in interest; and after due deliberation thereon; and

sufficient cause appearing therefor, it is hereby

ORDERED that the Motion is granted on a final basis as provided herein; and it is further

ORDERED that pursuant to Bankruptcy Code section 365, the Leases set forth on

Exhibit A to this Order (the "Rejected Leases") are rejected effective as of December 31, 2018

(the "Effective Rejection Date"); and it is further

ORDERED, pursuant to sections 105(a) and 554(a) of the Code and Bankruptcy Rule 6007,

that any personal property remaining in any premises subject to the Rejected Leases is abandoned

by the Debtors as of the Effective Rejection Date, subject, however, to the interests of any third

parties, and without waiver of any claim the relevant landlord may have against the Debtors for

the disposal of personal property so abandoned under the Code; and it is further

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ORDERED that any claim related to a Rejected Lease must be filed on or before any

general bar date established by separate order entered by this Court; and it is further

ORDERED that nothing in this Order shall affect the following rights, all of which are

fully reserved: (a) the rights of any landlord under a Rejected Lease to assert any claims against

the Debtors or their estates, and (b) the rights of the Debtors to oppose such claims; and it is further

ORDERED that, notwithstanding the relief granted in this Order and any actions taken

pursuant to such relief, nothing in this Order shall be deemed: (a) an admission as to the validity

of any claim against a Debtor entity or the priority of such claim; (b) a waiver of any party's right

(including the Debtors) to dispute any claim on any grounds; (c) a promise or requirement to pay

any claim; (d) an implication or admission that any particular claim is of a type specified or defined

in this Order or the Motion, or (e) a waiver of any party's rights (including the Debtors) under the

Code or any other applicable law; and it is further

ORDERED that the Debtors and their agents are authorized to take all actions necessary to

effectuate the relief granted pursuant to this Order in accordance with the Motion; and it is further

ORDERED that all counterparties to the Rejected Leases are hereby enjoined from taking

any action inconsistent with this Order.

###

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EXHIBIT A

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Rejected Leases

EFFECTIVE REJECTION DATE: December 31, 2018

Landlord Lease Address of Premises

Campus Corner, LLC Lease Agreement dated July 11, 2003 with Campus Corner, LLC and any and all amendments, modifications, or revisions thereto

1700 W. University Ave. Muncie, IN

Carmel Lofts LLC Lease Agreement dated as of March 18, 2011 with Carmel Lofts LLC and any and all amendments, modifications, or revisions thereto

110 West Main Street Carmel, IN 46032

Jefferson Plaza, LLC Lease dated June 27, 2008, with Jefferson Plaza, LLC and any and all amendments, modifications, or revisions thereto

Space at: 1 Virginia Ave. Indianapolis, IN 46204

STORE Master Funding VI, LLC

Lease dated November 2017 with STORE Master Funding VI, LLC and any and all amendments, modifications, or revisions thereto

4671 S. Jack Kultgen Expressway

Waco, TX 76711

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